Blank Rome Blocks Government Attempt to Dismiss Interlocutory Appeal of Client, Mme. Muriel Bescond
On April 1, 2020, a Blank Rome team secured a significant interim victory in their two-and-a-half-year fight on behalf of Muriel Bescond, defeating the government’s attempt to have her interlocutory appeal dismissed on jurisdictional grounds.
Mme. Bescond, a French citizen who lives in France, was indicted in the Eastern District of New York for allegedly participating in a scheme to manipulate LIBOR, a worldwide financial benchmark, in violation of the Commodity Exchange Act (“CEA”). Because Mme. Bescond is not extraditable, the Blank Rome team moved to dismiss the indictment on several grounds despite Mme. Bescond not having made an appearance, which is very unusual in a criminal case. The grounds for dismissal included a challenge to the extraterritorial application of the CEA to a foreign defendant, all of whose alleged acts occurred abroad.
The district court held that Mme. Bescond was not entitled to advance legal defenses to the indictment without first appearing in court, invoking the “fugitive disentitlement doctrine,” which denies court access to criminal defendants who have been deemed “fugitives.” The Blank Rome team appealed to the Second Circuit under the collateral order doctrine and the government moved to dismiss the appeal, arguing that the right of interlocutory appeal in a criminal case is extremely limited and that no federal appellate court had ever permitted an interlocutory appeal of an order applying the fugitive disentitlement doctrine. In both respects, the government was correct—indeed, the Eleventh Circuit and the Sixth Circuit have ruled that such appeals do not satisfy the collateral order doctrine.
The Blank Rome team argued, however, that the issue would be unreviewable after any final judgment and was of significant importance in balancing America’s prosecutorial reach with the sovereignty of foreign nations. The Second Circuit granted argument that was conducted telephonically on Tuesday, March 31; only one day later, the court denied the government’s motion, becoming the first federal appellate court to vindicate an absent foreign defendant’s right to collaterally appeal an adverse decision on fugitive disentitlement. The matter will now go to a merits panel of the Second Circuit for full briefing and argument.