The third way: The constitutional imperative of allowing foreign nationals to seek to dismiss indictments prior to arraignment

Foreign nationals who are under indictment for violations of U.S. criminal law face a dilemma. Most U.S. courts will not entertain challenges to the indictment unless the defendant travels to the United States and surrenders to the personal jurisdiction of the court. The Department of Justice will request that those defendants who do not voluntarily submit to jurisdiction be placed on an INTERPOL Red Notice list. These foreign nationals, particularly those who are charged with offenses that are not criminal in their home jurisdiction (such as participation in a cartel), face a difficult choice: accept the time and expense required to challenge the charges against them in the United States, or otherwise accept de facto imprisonment within the borders of their home country. This Catch-22 raises serious due process concerns under U.S. constitutional law. Herein, the authors propose a third way, allowing certain foreign nationals the right to challenge the legal sufficiency of the charges against them before arraignment in the United States.

1. Consider the following fact pattern. In the course of a cartel investigation of a European company, Widgets, the United States Department of Justice ("DOJ") targets a European national, Mr. X, who is a retired senior executive of Widgets. Over the course of his long career with Widgets, Mr. X has never been to the United States. Indeed, because Mr. X rose through the ranks at Widgets on the manufacturing side of the business, Mr. X has never had any direct dealings with customers in the United States either. Mr. X never attended any cartel meetings, although the existence of the cartel was an open secret at Widgets for most of his career. While Mr. X never directed anyone to attend a cartel meeting, he did receive reports about decisions made at those meetings once he assumed a

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  • Constantine Cannon (New York)
  • Hughes Hubbard & Reed (New York)
  • Hughes Hubbard & Reed (New York)


Ethan Litwin, Morgan J. Feder, Brittany R. Cohen, The third way: The constitutional imperative of allowing foreign nationals to seek to dismiss indictments prior to arraignment, May 2016, Concurrences N° 2-2016, Art. N° 79482,

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