Megaupload and Kim Dotcom filed a supplemental brief in the United States District Court in Virginia today.
Here is an excerpt from the brief:
The Government’s reply (Dkt. 48-2) in support of its Motion to Strike (“Government’s MTS”) evidences an obvious misconception about the role and scope of fugitive disentitlement. By the Government’s account, the doctrine amounts to a magic button that, whenever pressed, results in immediate, incontestable forfeiture of any and all foreign assets the Government may seek from a foreign national who is contesting extradition while asserting ownership interests at home—no matter the facts, law, equities, or procedures, rights, and courts engaged abroad.
The United States is thus trying to abuse the doctrine of fugitive disentitlement, transmogrifying it into an offensive weapon, a cover for precipitous, unjustified forfeiture, and a provocation for international discord. What fugitive disentitlement is actually meant to do, as the statute states, is simply to authorize a U.S. court—at its discretion, in appropriate cases, upon making necessary findings—to prevent someone who is actively out to avoid the reach of the United States “from using the resources of the courts of the United States.” Thus, fugitive disentitlement is properly called upon for the sake of preserving “efficient, dignified operation of the courts,” as the Supreme Court has said. Degen v. United States, 517 U.S. 820, 824 (1996). That is all it is meant to do. It is not meant to gratify a prosecutor’s sudden perceived need for speed by superseding otherwise applicable timelines, procedures and rights. It is not meant to supply a substantive warrant for forfeiture where there is otherwise none. It is not meant to coerce a criminal defendant into buckling to extradition and surrendering valid defenses otherwise pending abroad. And it is certainly not meant to trump foreign courts and usurp foreign proceedings. In all of these respects, the United States Government appears badly mistaken and in need of correction.