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      « DOJ flip flops in Megaupload case: argues one thing to the Court and the opposite to the federal rules committee | Main | EFF filed a brief today supporting Megaupload's position that the Court should provide a remedy under Rule 41(g) »
      Tuesday
      Jan292013

      Megaupload Submits Brief Arguing Due Process Violations and Requesting Dismissal

      Megaupload submitted to the Federal Court in the United States today the final brief in the latest round urging the Court to dismiss the case without prejudice.

      Megaupload argues in the introduction:

      "By its opposition brief (see Dkt. 159), the Government seeks to persuade the Court that Defendant Megaupload Limited (“Megaupload”) has suffered no harm or deprivation of due process as a result of the Government’s continued failure to serve the company in accordance with the Federal Rules of Criminal Procedure. The facts show otherwise. More than a year has now passed since Megaupload was branded a criminal, with no opportunity to date to clear its name or to challenge the charges against it. More than a year has passed since every penny of the company’s assets was frozen, yet there has been no pre- or post-seizure hearing for Megaupload to contest the propriety of that action. Megaupload’s servers—which house the universe of relevant evidence against which the Government’s allegations against Megaupload might potentially be fully and fairly assessed one day—have been taken offline for lack of funding (while the Government sits on all the assets it has seized from Megaupload), gathering dust and in danger of deteriorating. And Megaupload’s innocent consumers have been forced to go more than a year without any access to their property.

      The ability of a criminal defendant to mount, not only in theory but also in practice, a fair defense should be beyond question. The Government’s conduct of this case is to the contrary, raising grave questions about whether the Government is intent on being judge, jury, executioner, and asset collector without benefit of the adversarial process and protections, including those of Rule 4, to which this corporation is entitled. Certainly the prosecution to date—by freezing assets, by foreswearing proper service, and by steadfastly refusing to lift a finger or spend a cent to prevent ongoing spoliation of server evidence (not to mention deprivation of innocent users’ rightful property)—has denied Megaupload any semblance of due process. Megaupload asks this Court to right that wrong by dismissing the Superseding Indictment without prejudice and until such as time as the Government serves (if it is able to do so) Megaupload consistent with the requirements of Federal Rule of Criminal Procedure 4—and thereby freeing the corporate defendant from the criminal limbo that is presently subjecting it to daily, irreparable harm." 

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