Clarifying Constructive Flight: The Second Circuit’s Totality-of-the-Circumstances Test for Fugitive Disentitlement
Comprehensive Commentary on United States v. Bardakova, 24-2038-cr (2d Cir. 2025)

1. Introduction

In United States v. Bardakova the U.S. Court of Appeals for the Second Circuit revisited the venerable but often-contested “fugitive disentitlement doctrine.” The case concerns Natalia Mikhaylovna Bardakova, a Russian national accused of (i) conspiring with Russian oligarch Oleg Deripaska to violate economic sanctions promulgated under the International Emergency Economic Powers Act (IEEPA) and (ii) making false statements to FBI agents in California. After being questioned, she returned to Russia; four months later she was indicted in the Southern District of New York (SDNY) yet chose not to re-enter the United States. Acting through counsel, she moved to dismiss the indictment. The district court declined to reach the merits, holding that her “constructive flight” made her a fugitive disentitled to relief.

On interlocutory appeal, the Second Circuit affirmed, but—most importantly— articulated a structured totality-of-the-circumstances test for determining whether a defendant abroad intends to remain away “in order to avoid prosecution.” This commentary analyses the ruling, the authorities that shaped it, and its practical implications.

2. Summary of the Judgment

• Jurisdiction: The court accepted interlocutory jurisdiction under the collateral-order doctrine, extending its earlier decision in United States v. Bescond (2022).
• Constructive Flight: Bardakova qualified as a constructive-flight fugitive because (1) she allegedly committed crimes while physically present in the U.S.; (2) she was abroad when she learned of the indictment; and (3) the court inferred, from objective circumstances, that she remained abroad at least partly to avoid prosecution.
• Totality-of-the-Circumstances Test: The court formally adopted a multi-factor, fact-sensitive analysis—looking to nationality/domicile, travel patterns, cooperation efforts, and any legitimate reasons for non-return—to gauge a defendant’s intent.
• Disentitlement Upheld: Applying four classic objectives (enforceability, penalizing contempt for court, deterrence/efficiency, and prejudice), the panel held that the district court did not abuse its discretion in denying the motion to dismiss without addressing the merits.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The opinion weaves a dense line of authorities; the most influential are:

• Molinaro v. New Jersey, 396 U.S. 365 (1970) – recognized inherent power to refuse relief to a fugitive.
• Smith v. United States, 94 U.S. 97 (1876) – earliest Supreme Court acknowledgement of disentitlement.
• Collazos v. United States, 368 F.3d 190 (2d Cir. 2004) – defined constructive-flight fugitives for civil forfeiture; provided three-part framework later imported into criminal cases.
• Empire Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278 (2d Cir. 1997) – enumerated four policy objectives guiding disentitlement.
• United States v. Bescond, 24 F.4th 759 (2d Cir. 2022) – held that a French banker who never entered the U.S. was not a fugitive; recognized appellate jurisdiction over disentitlement orders and stressed the importance of extraterritoriality arguments.
• Technodyne LLC, 753 F.3d 368 (2d Cir. 2014) – imported totality approach for intent determination in §2466 civil forfeiture context.

While Bescond is the immediate backdrop, the panel distinguishes it on two axes: (i) Bardakova’s substantial U.S. presence during the alleged criminal acts, and (ii) her abrupt cessation of regular U.S. travel after learning of the indictment—factors missing in Bescond.

3.2 The Court’s Legal Reasoning

3.2.1 Collateral Order Jurisdiction

Applying the three-part Hollywood Motor Car test, the court concluded that a disentitlement order is (1) conclusive; (2) separate from the merits; and (3) effectively unreviewable after final judgment because the defendant cannot obtain merits review without surrendering. The presence of extraterritoriality arguments again made the issue “important.”

3.2.2 Constructive Flight Defined

The panel reaffirmed the three elements of constructive flight:

1. Alleged commission of crimes while in the United States;
2. Being outside the U.S. when learning that arrest is sought; and
3. Refusal to return for the purpose of avoiding prosecution.

3.2.3 Totality-of-the-Circumstances Intent Inquiry

The court explicitly filled a doctrinal gap by specifying objective factors to infer intent. The list is non-exclusive, but key items include nationality/domicile, travel pattern, cooperation with authorities, and legitimate impediments (e.g., health). Importantly, avoidance of prosecution need not be the sole motive—merely a motive suffices.

3.2.4 Application to Bardakova

• First two elements undisputed: alleged domestic conduct and knowledge while abroad.
• Totality showed avoidance intent: Regular previous travel ceased; no effort to cooperate; no articulated impediment; and ongoing benefits (a U.S.-citizen child) emphasized a selective invocation of U.S. jurisdiction.

3.2.5 Discretion to Disentitle

The district court’s weighing of the four objectives was upheld. Notably:

• Mutuality/Enforceability: Her past use of U.S. jurisdiction (childbirth, property rentals) underscored asymmetry.
• Penalty for Flouting: She allegedly “entered, offended, lied, and left,” differentiating her from Bescond’s purely foreign conduct.
• Deterrence & Efficiency: A common fact-pattern (crime on U.S. soil, exit before indictment) required deterrence to preserve the courts’ authority.
• Prejudice: Government acted swiftly; any evidentiary decay now stems from her absence.

3.3 Potential Impact of the Decision

1. Template for Future Disentitlement Motions. Trial courts now have a clear checklist for assessing intent, reducing disparate outcomes across districts.
2. Guidance for Transnational Defendants. Foreign nationals who enter the U.S. during alleged wrongdoing face heightened disentitlement risk if they later remain abroad.
3. Sanctions Enforcement. The ruling bolsters DOJ’s strategy of pairing sanctions-evasion counts with any domestic false-statement or money-laundering counts to ensure at least some “U.S. conduct” anchoring.
4. Extraterritoriality Litigation. Defendants with plausible extraterritoriality defenses may still receive merits review if the government cannot show the totality supports avoidance intent; however, cases resembling Bardakova’s will be quickly curtailed.
5. Civil-Criminal Convergence. Importing the §2466 “totality” methodology into criminal cases signals a doctrinal convergence that may influence asset-forfeiture practice and immigration fugitive doctrines.

4. Complex Concepts Simplified

• IEEPA (50 U.S.C. §§1701-1710): A statute empowering the President to declare national emergencies and regulate economic transactions; violations can be both civil and criminal.
• Specially Designated National (SDN): A person or entity listed by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) whose property is blocked and with whom U.S. persons generally cannot transact.
• Fugitive Disentitlement Doctrine: A common-law principle allowing courts to refuse to hear motions or appeals from individuals who evade jurisdiction.
• Constructive Flight: A subset of fugitivity where the defendant leaves (or stays outside) the U.S. after criminal activity here and then refuses to return once prosecution is anticipated.
• Collateral Order Doctrine: An exception to the “final judgment rule”; certain interlocutory orders may be appealed immediately if they (1) conclusively decide an issue, (2) address matters separate from the merits, and (3) would be unreviewable after final judgment.
• Totality-of-the-Circumstances Test: A holistic assessment that weighs multiple objective factors rather than relying on a single determinative fact.

5. Conclusion

United States v. Bardakova does more than apply existing doctrine; it crystallises an analytical framework for assessing “constructive flight” and the discretionary bar of fugitive disentitlement. By expressly adopting a totality-of-the-circumstances approach and detailing relevant factors, the Second Circuit has furnished trial courts with a practical roadmap and signalled to foreign defendants that partial ties to U.S. soil—combined with refusal to return—will weigh heavily against them.

The decision harmonises criminal and civil fugitivity analyses, affirms the vitality of collateral-order review in disentitlement cases, and reinforces the government’s toolkit for enforcing sanctions regimes. Future litigation will likely test the edges—particularly in cases where defendants assert compelling humanitarian or political reasons for non-return—but Bardakova now stands as the leading precedent in the Second Circuit for disentitlement rooted in constructive flight.