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Second Circuit Review: Expanding the Collateral Order Doctrine; Narrowing Fugitive Disentitlement

February 23, 2022

Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Expanding the Collateral Order Doctrine; Narrowing Fugitive Disentitlement,” appeared in the February 23 issue of the New York Law Journal. The authors discuss the court’s recent split decision in United States v. Bescond, which concerns the ability of foreign defendants to seek relief from U.S. indictments. In a ruling that is ultimately a check on attempts to exercise criminal jurisdiction abroad, the panel majority held that fugitive disentitlement orders are immediately appealable under the collateral order doctrine, and that foreign defendants who remain at home abroad should not be deemed fugitives. The collateral order doctrine is a narrow exception to the final judgment rule, which says appeals must be filed after final judgment. The dissenting opinion critiqued the majority for effectively holding that foreigners have new and greater due process rights to contest fugitive status than American citizens living abroad, and for failing to give sufficient guidance for its new category of immediately appealable orders. Litigation associate Yishai Schwartz assisted in the preparation of this column.

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