United States v. Hayes, 99 F. Supp. 3d 409

Defendant Roger Darin, a Swiss national and UBS trader responsible for Yen LIBOR submissions, is charged in a criminal complaint with conspiring with co-defendant Tom Hayes to manipulate Yen LIBOR to benefit trading positions, harming counterparties including at least one in New York.
The complaint alleges repeated requests by Hayes to Darin (or Darin’s subordinates) to bias UBS’s LIBOR submissions; manipulated figures were published and transmitted to servers in the United States and affected trades routed through U.S. servers.
The Government charged Darin with conspiracy to commit wire fraud (18 U.S.C. § 1349) based on use of interstate/foreign wires and publication of manipulated rates to U.S. servers.
Darin moved to dismiss on Fifth Amendment due process and presumption-against-extraterritoriality grounds, arguing insufficient nexus to the U.S., lack of notice, and that prosecution would be an unauthorized extraterritorial application of U.S. law.
The court rejected the Government’s contention that Darin (a nonresident alien abroad) cannot assert Fifth Amendment protections and declined to apply the fugitive-disen-titlement doctrine.
The court held the wire fraud statute (as pleaded) applies domestically here because the complaint alleges use of U.S. wires/servers; it found the complaint alleges a sufficient nexus and gave Darin fair notice that manipulative submissions could be criminal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of Fifth Amendment	Govt: nonresident abroad cannot assert Fifth Amendment (citing Eisentrager)	Darin: as foreign national abroad, lacks constitutional protections and notice	Court: Fifth Amendment may apply; Eisentrager not controlling here; Darin may assert due process claims
Fugitive disentitlement doctrine	Govt: court should refuse to consider motion because Darin is a fugitive	Darin: has not hidden whereabouts; remaining in Switzerland not grounds to deny review	Court: declined to apply doctrine — mutuality, flouting, deterrence, prejudice factors do not justify disentitlement here
Presumption against extraterritoriality / Wire fraud reach	Govt: §1343/§1349 covers frauds using foreign wires and applies here	Darin: prosecution is extraterritorial because conduct occurred abroad for a foreign benchmark and bank	Court: wire fraud targets use of domestic wires; where complaint alleges domestic wire use/publication to U.S. servers, statute applied domestically and presumption irrelevant
Nexus and notice under Due Process	Govt: sufficient nexus exists (publication to U.S., affected U.S. counterparties, use of U.S. wires)	Darin: insufficient nexus; no intent to harm U.S.; lacked notice he could be prosecuted in U.S.	Court: complaint alleges adequate nexus (co-conspirator’s acts, publication to U.S., foreseeable U.S. effects); fair warning provided; motion denied

Johnson v. Eisentrager, 339 U.S. 763 (1950) (limits on extraterritorial application of constitutional protections in military tribunal context)
Boumediene v. Bush, 553 U.S. 723 (2008) (extraterritorial constitutional analysis depends on objective factors and practical concerns)
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (distinguishes Fourth and Fifth Amendment analyses; notes limits on extraterritorial application)
Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (presumption against extraterritoriality; courts must identify statute's focus)
Pasquantino v. United States, 544 U.S. 349 (2005) (use of U.S. interstate wires can make offense domestic for statutes like wire fraud)
European Community v. RJR Nabisco, 764 F.3d 129 (2d Cir. 2014) (wire fraud statute does not overcome Morrison’s presumption against extraterritoriality)
United States v. Kim, 246 F.3d 186 (2d Cir. 2001) (legislative history and post-1956 scope of wire fraud statute reaching foreign-wire schemes that impact U.S.)
In re Hijazi, 589 F.3d 401 (7th Cir. 2009) (nonresident defendants may have sufficient relation to U.S. to invoke due process protections; court must decide motions even if defendant abroad)
United States v. Gilboe, 684 F.2d 235 (2d Cir. 1982) (use of U.S. telecommunication systems in furtherance of fraud confers jurisdiction)
United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) (due-process nexus requirement for extraterritorial application of criminal statutes)