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The Courts Piracy The Almighty Buck United States

US Gov't Seeks To Keep Megaupload Assets Because Kim Dotcom Is a Fugitive 173

Posted by timothy from the them-as-has-gits-by-law dept.
mrspoonsi writes with this excerpt from Billboard: 'On Tuesday, the U.S. Department of Justice told a Virginia federal judge that Kim Dotcom and cohorts have no business challenging the seizure of an estimated $67 million in assets because the Megaupload founder is evading prosecution. The government brought criminal charges against Dotcom in early 2012, but he's been holed up in New Zealand awaiting word on whether he'll be extradited. The government got antsy and this past July, brought a civil complaint for forfeiture in rem, a maneuver to firmly establish a hold over money from bank accounts around the world, luxury cars, big televisions, watches, artwork and other property allegedly gained by Megaupload in the course of crimes. Dotcom is fighting the seizures by questioning the government's basis for asserting a crime, saying "there is no such crime as secondary criminal copyright infringement," as well as challenging how the seized assets are tied to the charges against Dotcom. But according to the U.S. government, Dotcom doesn't get the pleasure of even making the arguments. In a motion to strike, the government cites the doctrine of fugitive disentitlement, which bars a person from using the resources of the court if that person is aware of prosecution and is evading it.
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US Gov't Seeks To Keep Megaupload Assets Because Kim Dotcom Is a Fugitive More

US Gov't Seeks To Keep Megaupload Assets Because Kim Dotcom Is a Fugitive

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  • Wait what? (Score:5, Insightful)

    by jythie ( 914043 ) on Thursday November 20, 2014 @08:55AM (#48425307)
    So, because he is exercising his rights as a foreign citizen living in another country and going through the legally established international process for determining extradition, he is a 'fugitive' and thus his assets are fair game?

    This strikes me as a blatant misuse fugitive disentitlement which is more intended for situations where someone is on the run and unlocatable or in a hostile country with no extradition treaty. NZ has a treaty and Dotcom (wow I hate that name) is going through the appeals system. That is not really 'evading' since evasion implies extrajudicial methods.... it strikes me more as the JoD wanting to circumvent international law when things do not immediately go their way.

    • Re:Wait what? (Score:5, Insightful)

      by XxtraLarGe ( 551297 ) on Thursday November 20, 2014 @09:10AM (#48425373) Journal

      So, because he is exercising his rights as a foreign citizen living in another country and going through the legally established international process for determining extradition, he is a 'fugitive' and thus his assets are fair game?

      This is theft, plain and simple, just like "civil" asset forfeiture.

      • Re:Wait what? (Score:5, Insightful)

        by Noah Haders ( 3621429 ) on Thursday November 20, 2014 @09:55AM (#48425685)

        correct. civil asset forfeiture (what this is) is legal thuggery. at least in this case there's at least some relation to an international prosecution, as opposed to the sherriff deputy in east dumfuck taking your cash at a traffic stop.

      • Couple thoughts... first that people need to quit blaming police for asset forfeiture, and start blaming politicians that passed the stupid laws - and the only ones that can revoke them.

        To take it a step further, most civil law should be revoked. It has nothing to do with right or wrong, and everything to do with who spends the most on lawyers.

        • Re:Wait what? (Score:4, Insightful)

          by Gr8Apes ( 679165 ) on Thursday November 20, 2014 @11:07AM (#48426205)
          Since the police make the decisions, and benefit from the forfeiture directly, yes, we start by blaming the police and publicizing all incidents and thus apply pressure to the politicians to stop this nonsense. No one is going to say the police are wrong seizing 100 tons of coke and coke covered $100M in a single bust. Grabbing $8K from granny or some business person, yes, and they deserve all the heat they get from that outright theft (you can call it whatever you want, it's still theft)

        • Couple thoughts... first that people need to quit blaming police for asset forfeiture, and start blaming the people who elect politicians that passed the stupid laws - and the only ones that can revoke them.

          • Politicians are a mixed bag. If I vote for the guy who says he'll eliminate civil asset forfeiture, he may be the guy who tries to legalize cannibalism. It's hard to judge who's going to be good enough on the most important issues, and blaming the voters on any but the most obvious cases is mistaken.

            • Re: (Score:3, Informative)

              by Archangel Michael ( 180766 )

              How about voting for people who understand that rights are something governments were formed to protect, not steal? When you have (R) and (D) fighting over which rights to steal, and most people ignorant that they both are stealing our rights, at the same time. And then you have people who say they vote (D) or (R) because the other steals more rights, while ignoring the rights that their side is stealing ...

              Take for example the whole Amnesty thing Obama is going to do tonight. What I have not heard from eit

          • Couple thoughts... first that people need to quit blaming police for asset forfeiture, and start blaming the people who elect politicians that passed the stupid laws - and the only ones that can revoke them.

            Not really. Its not as if a cop who looks in your car and sees a wad of cash is faced with an obvious crime which he, as a cop, is obliged to act on. The cops are totally able to say "oh look, obvious drug money! *yoink*" or to ignore it.

            They, the cops, choose to steal from you. In the USA.

        • Re: (Score:2)

          by AK Marc ( 707885 )

          Couple thoughts... first that people need to quit blaming police for asset forfeiture, and start blaming politicians that passed the stupid laws - and the only ones that can revoke them.

          The discretion given police allows them to not enforce any law they don't like. The police could choose to stop enforcing all the stupid laws tomorrow. That's the point of the separation of powers. If the legislature passes a bad law, it can be "veto"ed by the executive not executing it, even if the law wasn't vetoed or the veto failed.

      • Lawyers often study "conflict of laws", where law A says "X is a crime" and B says "do X". Good legal draftsmen will therefor say something like "not withstanding A, do X", but not everyone is a good draftsman(/woman/shark). It would be amusing and very embarassing to charge a district attorney with possession of stolen property (;-))

      • So, because he is exercising his rights as a foreign citizen living in another country and going through the legally established international process for determining extradition, he is a 'fugitive' and thus his assets are fair game?

        This is theft, plain and simple, just like "civil" asset forfeiture.

        The USA has no problem stealing from their own citizens in their own country, its hardly a surprise that they have no problem stealing from citizens of other countrys who are also overseas.

    • Business as usual for US justice (Score:5, Insightful)

      by bradley13 ( 1118935 ) on Thursday November 20, 2014 @09:13AM (#48425399) Homepage

      Google "asset forfeiture" and weep.

      Asset forfeiture is a standard trick in the bag of US justice. They take your assets, then you then have to prove your innocence to get them back. The fact that this goes against the US Constitution, as well as international law? Irrelevant, I mean, what are you gonna do, call the police? When the police are the thieves, that's not very useful...

      The US is a police state pretending to be a democracy. Lot's of people haven't been stepped on yet, so they can continue ignoring this unpleasant reality.

      • Re:Business as usual for US justice (Score:4, Informative)

        by OzPeter ( 195038 ) on Thursday November 20, 2014 @09:27AM (#48425503)

        Google "asset forfeiture" and weep.

        Reading Stop and seize [washingtonpost.com] makes for a scary experience.

      • John Oliver had a hilarious and very sad skit [youtube.com] where he talked about this. The Daily Show [cc.com] also had a routine. It's just sad.

        In many municipalities, the government starts a suit against the property itself so that it's much easier to keep all the loot.

      • Re:Business as usual for US justice (Score:5, Informative)

        by DutchUncle ( 826473 ) on Thursday November 20, 2014 @10:16AM (#48425819)
        An introduction, for the lazy:

        http://www.newyorker.com/magaz... [newyorker.com]
        Under civil forfeiture, Americans who haven't been charged with wrongdoing can be stripped of their cash, cars, and even homes.

        http://gothamist.com/2014/01/1... [gothamist.com]
        How The NYPD's Use Of Civil Forfeiture Robs Innocent New Yorkers
        Any arrest in New York City can trigger a civil forfeiture case if money or property is found on or near a defendant, regardless of the reasons surrounding the arrest or its final disposition.

        http://www.nytimes.com/2014/10... [nytimes.com]
        “Who takes your money before they prove that you’ve done anything wrong with it?”
        The federal government does.
        Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes.

      • We've lost the country the moment we gave government the power over the people, rather than making sure the people always had the power over government. The only thing that will fix this is another bloody revolution. But the government gives enough free bread and circuses to keep the people distracted and satiated in their slavery.

        Tonight's Imperial Action is just another circus, designed to undermine Citizens rights while distracting people using the word "reform". Who can be against "reform"???

    • "a hold over money from bank accounts around the world, luxury cars, big televisions, watches, artwork"

      These assets are not even held in the USA, how can they possibly have jurisdiction on these assets? (such as a watch presumably taken from his home address).

      • "a hold over money from bank accounts around the world, luxury cars, big televisions, watches, artwork"

        These assets are not even held in the USA, how can they possibly have jurisdiction on these assets? (such as a watch presumably taken from his home address).

        Lets assume you're right and they can't... he has to show up in court to challenge it... see the what they are doing now?

    • Re:Wait what? (Score:4, Informative)

      by Charliemopps ( 1157495 ) on Thursday November 20, 2014 @09:22AM (#48425471)

      The US Government routinely seizes the assets of its adversaries, even US Citizens in order to force them to appear in court. Just like this... They take your money, knowing full well they have no right to... but, to dispute it, you have to show up in court or testify about yourself in such a way that could lead to further prosecution.

      Remember how they busted Al Capone? Tax evasion? They knew for a fact how he got his money, but they also knew that to prove he was innocent he'd have to admit to how he got his money. So, despite violating his rights, the spirit of the law, and perverting the justice system. they got him anyway. Win at all costs...

      • The US Government routinely seizes the assets of its adversaries, even US Citizens

        What you're talking about is the US Government seizing the assets its adversaries have parked in the USA.
        I'm not sure why the US Government thinks it can seize foreign assets.
        That's not how jurisdiction works.

        • The US Government routinely seizes the assets of its adversaries, even US Citizens

          What you're talking about is the US Government seizing the assets its adversaries have parked in the USA.
          I'm not sure why the US Government thinks it can seize foreign assets.
          That's not how jurisdiction works.

          Of course it does. Any court in Europe could rule that a US citizen owes them money, then apply to have assets from the US seized and sent back. It's covered under treaty and happens all the time.

      • So, despite violating his rights, the spirit of the law, and perverting the justice system.

        Capone had a lot of money and didn't pay taxes on it. That is simple tax law. Even if where he got the money was legitimate he still would have committed tax evasion. I don't see how it violates his rights, the spirit of the law or perverted the justice system. Capone has no right to get away with tax evasion. The spirit of the tax evasion law is to ensure people pay taxes on income. Capone did not do that. The justice system is tasked to uphold those laws.

        Capone just plead the fifth when asked where he got

      • Remember how they busted Al Capone? Tax evasion? They knew for a fact how he got his money, but they also knew that to prove he was innocent he'd have to admit to how he got his money. So, despite violating his rights, the spirit of the law, and perverting the justice system. they got him anyway. Win at all costs...

        Actually they used the tax code properly. He failed to report income and was tried and convicted. He could have reported it and paid taxes on it and avoided prosecution.

    • "more intended for situations where someone is on the run and unlocatable or in a hostile country with no extradition treaty"

      Don't forget, the US legal system put copyright and security theater offenses near the same level as more traditional capital offenses.

    • Re: Wait what? (Score:5, Insightful)

      by Anonymous Coward on Thursday November 20, 2014 @09:43AM (#48425585)

      I am a legal layman; but that is what struck me. We have an extradition treaty with the Kiwis. Based on our 'enthusiastic' diplomatic style it's probably even the one we wanted.

      To assert that somebody currently in extradition proceedings is a 'fugitive' is either to claim that the terms of extradition of that country are total bullshit, or basically the same as saying that appealing a conviction is a subtype of prison escape attempt.

      • basically the same as saying that appealing a conviction is a subtype of prison escape attempt.

        No, Appealing a conviction is a legal measure to released from detention while an escape attempt is an illegal measure to release oneself from detention. See the difference.

        • Right, but since the DoJ is claiming that someone in standard extradition proceedings is actually a 'fugitive,' the parent's point stands.

      • Re: (Score:2)

        by Yakasha ( 42321 )

        I am a legal layman; but that is what struck me. We have an extradition treaty with the Kiwis. Based on our 'enthusiastic' diplomatic style it's probably even the one we wanted.

        To assert that somebody currently in extradition proceedings is a 'fugitive' is either to claim that the terms of extradition of that country are total bullshit, or basically the same as saying that appealing a conviction is a subtype of prison escape attempt.

        "Fugitive" is a term, not the law. The law allows judges to remove your right to use the courts if you so much as refuse to return to the US.

        http://www.law.cornell.edu/uscode/text/28/2466:

        (1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution—
        (B) declines to enter or reenter the United States to submit to its jurisdiction;

        So, yes, if you go to an extradition hearing, instead of hopping on a plane, a judge can immediately bar you from using the courts for any purpose.

        IANAL... So I really don't know how this law passes the 1st Amendment...

        Congress shall make no law... abridging ... the right of the people ... to petition the government for a redress of grievances.

    • Re:Wait what? (Score:5, Insightful)

      by bluefoxlucid ( 723572 ) on Thursday November 20, 2014 @10:03AM (#48425747) Homepage Journal

      Yes. He's a criminal and an asshole, but the government is responding with criminal assholery.

      The man runs what amounts to organized crime as a conspiracy supporting international copyright infringement in violation of domestic laws and trade agreements in force in many countries. He runs this from New Zealand. We have legal processes providing for the extradition and seizing of assets of an international criminal through agreements with the country within which the criminal resides in.

      In this case, it seems the US government wants to dismiss all those legal processes and just throw a huge tantrum. We can't get him extradited? Well guess what? He's not liable to us. He doesn't belong in court; he's not a fugitive because he was never in the US after being charged, has no reason to be in the US, and isn't a US citizen. He's not legally required to show up in US court until the country he's a citizen of claims so; if he's a German citizen in NZ, and NZ extradites him, Germany can throw a huge hissy fit.

      This whole thing is woven with conflicting legal implications (NZ may be legally allowed or even obligated to extradite him) and potential diplomatic incidents. The US government is trying to violate all the rules.

      • Re: (Score:2)

        by chihowa ( 366380 ) *

        In the end, I wouldn't be surprised if any case the US had at all for extradition is ruined by all of the misdeeds they've done in their attempt to 'get' him. They're really overplaying their hand here (as the DoJ has a tendency to do) and it's going to end up biting them (as has happened several times in the past).

      • Re: (Score:3, Interesting)

        by Gr8Apes ( 679165 )
        Unless he uploaded content himself, he's really only running a system that allows for that, much like AT&T, Comcast, and Verizon allow for it by allowing connections to MegaUpload. Just think if they'd blocked MegaUpload's servers, they certainly have the ability. Much like guns, cars, or the internet, MegaUpload could be used both legally and illegally. If the gov has proof that he actually committed copyright infringement, claimed in the civil action, why don't they charge him with that? Perhaps becau
        • They claim MegaUpload rewarded uses for uploading specific copyrighted content. Supposedly they also have internal emails to that effect. They probably would have got him already except for the NZ police conducting an illegally overzealous raid on Dotcom's estate, followed by the scandalous behavior of the US DoJ and NZ police, which drew a lot of ire from the NZ public (and prime minister IIRC).

      • Re: (Score:2)

        by X.25 ( 255792 )

        The man runs what amounts to organized crime as a conspiracy supporting international copyright infringement in violation of domestic laws and trade agreements in force in many countries. He runs this from New Zealand.

        What the fuck? How do you get this brainwashed?

        Wow.

        • It happens to be true.

          Look up the legal definition of "conspiracy", and come to understand copyright laws. When people say, "Oh, I just linked to torrents and provided the tracker; I don't actually host copyright work," they are saying, "Oh, I just sold guns, ammunition, and the addresses of doctors who performed abortions; I didn't actually murder anyone for pro-life activism." Both are conspiracy to commit a criminal act.

    • It's a tricky case. Basically, the doctrine says that a fugitive can't say "I'm not subject to this court" (by fleeing justice) and simultaneously use the court to his advantage, in different aspects of the same matter.
      I am not a lawyer (IANL), but as far as I can see, this case is very similar to Degen v. United States (1996). In that case, the Supreme Court explicitly said that the government was not justified in using the doctrine of fugitive disentitlement to dismiss a challenge of forfeiture.
      Reference

  • I think this nails it (Score:5, Interesting)

    by MiniMike ( 234881 ) on Thursday November 20, 2014 @09:00AM (#48425327)

    FTFA, Dotcom's lawyer:

    The issue is the government basically is looking to use the fugitive disentitlement doctrine as procedural mechanism to avoid arguing merits of criminal action.

    The case seems to have no merit, they're probably reluctant to bring it to a trial. I think they were probably hoping for a plea in the first place, to avoid a trial and the associated oversight, and didn't think it would go this way or drag out this long.

  • Other fugitives (Score:2, Interesting)

    by Dunbal ( 464142 ) *
    I'm guessing the US will immediately hand over other fugitives then, since it believes so strongly in respecting the law. Fugitives like Paul Watson, John McCaffee and Amanda Knox to name but a few.

    • Re:Other fugitives (Score:5, Insightful)

      by Anonymous Coward on Thursday November 20, 2014 @09:18AM (#48425423)

      Those are all little fish. Let's go for some important criminals.
          Henry Kissinger: The Trial of Henry Kissinger [wikipedia.org]
          George W. Bush: The Bush Administration’s Liability for 269 War Crimes [uswarcrimes.com]
          Richard Cheney: CheneyWatch [cheneywatch.org]

    • Re: (Score:2)

      by AmiMoJo ( 196126 ) *

      Silly foreigner, only American citizens are human beings with rights.

      • Re:Other fugitives : Fixed it for you (Score:1)

        by Anonymous Coward

        Silly foreigner, only rich American citizens are human beings with rights.

      • Silly foreigner, only American citizens are human beings with rights.

        I suggest that you go for a drive with $500 in cash in your car. When the police stop you and find this cash, explain this to them. (this assumes you are in the USA, of course)

    • Re: (Score:3)

      by JBMcB ( 73720 )

      There are no outstanding extradition requests for McAfee or Knox, so I'm not sure what your point is.

      • McAffe is back in the US. Has been for awhile.

      • Re: (Score:3)

        by Dunbal ( 464142 ) *
        Er, McAffee is wanted for murder in Belize. Knox is wanted in Italy and will be tried in absentia.

        • Re: (Score:2)

          by JBMcB ( 73720 )

          Er, McAffee is wanted for murder in Belize. Knox is wanted in Italy and will be tried in absentia.

          But neither have extradition requests pending. McAfee has charges pending but they've never made it to a judge. Knox is probably going to be extradited but hasn't yet.

          Until the U.S. government gets an extradition request they aren't required to, and shouldn't, do anything.

    • As none of the countries who have charges against these people have requested extradition I don't see your point.

  • Comment removed based on user account deletion

  • Short answer ... (Score:5, Insightful)

    by gstoddart ( 321705 ) on Thursday November 20, 2014 @09:24AM (#48425485) Homepage

    The US has more or less been co-opted to be the enforcers of the copyright cartels, and are willing to bend their (and anybody else's laws) to have a "prosecute at any cost and to hell with the law" mentality.

    Since they've been unable to successfully argue in court that he should be extradited, they're going for the strong arm tactic of property theft.

    They're basically putting the cart before the horse, and saying "he's guilty because we say so, and since he won't come here and confess, we'll just take all his stuff".

    From the sounds of it, they haven't accused him of a crime which actually exists, since there is no statute.

    So everything else is just bullshit, lies, and posturing.

    I can't wait until some foreign court rules that all of some American official's stuff should be siezed because he's been tried in absentia for war crimes.

    Because Americans would scream and go "yarg, we're not under your jurisdiction" despite frequently doing the same thing.

    • "I can't wait until some foreign court rules that all of some American official's stuff should be siezed because he's been tried in absentia for war crimes."

      Well, to this and other points above about trying Bush et al., there's a reason why the USA - together with other shining examples of democracy such as China, Cuba, Saudi Arabia, Israel etc. - have NOT signed up to the ICC

      https://en.wikipedia.org/wiki/... [wikipedia.org]

      Do as I say, not how I do

    • Seriously though.....when did the USA political "system" get so out of whack like this? There are a ton of good things they've done for the world but the balance is starting to tip to the point where you have to wonder if a giant vortex swept Washington into the ocean......it might not be a bad day. (sorry to all the deathstar plumbers that drown because of it but seriously.....the union guys ought to be thinking its a good time to take annual leave).

    • They're basically putting the cart before the horse, and saying "he's guilty because we say so, and since he won't come here and confess, we'll just take all his stuff".

      Not quite. Since Dotcom was indited by a Grand Jury here is a more accurate description.

      A Grand Jury has found that there is sufficient evidence to to bring to trial charges for activities of Megaupload which is controlled in part by Kim Dotcom. As it is illegal to benefit from illegal activities and Kim Dotcom's assets are proceeds of the activities under charge these assets are seized. Kim Dotcom may present himself and defend himself against these charges. If found not guilty the assets will be returned. Please note that these assets may be used in defence against the charges.

  • I wonder how many pairs of jackboots they can buy for $67 million ?

  • That's what everyone is saying here. Yeah, so they are... Big deal... You can thank the voters, for being, in a recently made famous word, "Stupid", stupid for willingly believing the lies. Tell me, what am I supposed to feel towards those people who did this?

  • Might as well stop fooling ourselves that we're a nation of laws. The actions of the US government are indistinguishable from those of an unlimited monarchy; they take what they want. Soon the burden of writing, re-writing, and re-interpreting little laws to justify it will be onerous, and they'll stop.

    Then we won't have to (and indeed won't be allowed to) waste time talking about it.

  • He lied on his application for residency. Hopefully he gets deported. Then its Germany's problem.

  • Only people who are fugitives have extradition preceding lodged against them. Therefore since Dotcom has extradition preceding against him he is is a fugitive. All the extradition preceding do is determine if the country that the fugitive is hiding in agrees that the charges are valid. It does not change the fact that he is a fugitive. If he gets spotted in the US before the statute of limitations runs out he will be arrested.

    It is interesting that Dotcom wants to use the US legal system to get his assets b

    • since Dotcom has extradition preceding against him he is is a fugitive

      A fugitive is someone on the run from justice, not someone willingly submitting to standard extradition protocol under an extant treaty.

      Man, arguments would be so much easier if I were willing to just make up definitions to suit my purposes, like you. Oh well.

      • He is on the run from justice in the US. Whether or not he is going through extradition in another country is a separate issue.

  • Will allow him to seize a U.S. Destroyer.

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