Megaupload and Kim Dotcom File Supplemental Brief Seeking to Dismiss Government's Forfeiture Action
Wednesday, January 7, 2015 at 07:51AM

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.

Further still, the Government wants to use its expansive reading of fugitive disentitlement as a global sword for cutting off foreign proceedings that are not to its liking. This comes through loud and clear from its briefing. See, e.g., Dkt. 48-2 at 36-37 (“More than $6 million of the restrained property in New Zealand has already been dissipated . . . and additional imminent requests for release are expected” while “[r]estrained property in Hong Kong remains under constant attack.”); Dkt. 65 at 4 (“As of December 2014, more than NZ$1 million (currently US $770,000) in restrained funds were released to the Dotcoms as ‘living expenses’ by the New Zealand courts.”).
To be clear, the Government’s grievance is not directed just against the Claimants—who are generally detained abroad, whose assets are restrained abroad, and who are using their assets only to the extent that the foreign courts now presiding over them see fit to award limited relief—so much as it is directed against the foreign courts that are continuing to have their fair say, if occasionally inconsistent with what the U.S. Government would prefer them to say. Although courts in New Zealand and Hong Kong are friendly to the United States, they have their own laws and their own views about, for instance, the import of binding treaty provisions, the presumption of innocence attaching to criminal defendants, and the imperative of funding adequate legal defense in a sprawling international case (or, more precisely, ever- expanding series of cases) that the Government years ago called one of “the largest criminal copyright cases ever brought by the United States.”1

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.
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