The Department of Justice has now branded Kim Dotcom and his former colleagues at the defunct file-sharing site Megaupload “fugitive[s] of justice” for refusing to travel to the United States where they face charges related to the website.
In paperwork filed this week, federal prosecutors for the DOJ’s Eastern District of Virginia division argue that Dotcom and his co-defendants do not have standing to challenge a complaint calling for them to forfeit their assets because their unwillingness to voluntarily enter the US has, according to government attorneys, rendered them unable to benefit from the resources of the court.
The latest legal back and forth does not directly involve the longstanding, high-profile copyright infringement and racketeering charges lobbed against Dotcom and colleagues in early 2012 when the US government shut down the massively successful Megaupload.com. Instead, rather, the latest filing from the DOJ concerns the July 2014 complaint in which the government said Dotcom and company should forfeit assets, including cars and the contents of bank accounts, seized when Megaupload was originally shut down almost three years ago.
Along with former Megaupload employees Bram van der Kolk, Finn Batato, Julius Bencko, Mathias Ortmann and Sven Echternach, the US government attests that Dotcom, 40, profited heavily off what the feds have called a “Mega Conspiracy” involving the website, which was used by millions as an online file locker for digital goods, legally obtained and otherwise.
“The members of the Mega Conspiracy described themselves as ‘modern day pirates’ and virtually every aspect of the Mega Sites was carefully designed to encourage and facilitate wide-scale copyright infringement,” the government previously argued, the likes of which allegedly allowed Dotcom and his co-defendants to profit from.
With attempts to extradite the alleged conspirators to America having stalled for years, the US prosecutors argued in July that the seized assets should be surrendered. Attorneys for the defendants fired back, however, by calling the accusations imaginary.
“The crimes for which the government seeks to punish the Megaupload defendants do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated,” Megaupload’s attorneys answered last month. “That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. And that is the nonexistent crime for which the government would now strip the criminal defendants, and their families, of all their assets.”
Now in response, US attorneys wrote in a motion filed on Monday this week that the defendants’ attempt to rebuff that forfeit request is moot as a result of their collective refusal to come to America — and ergo, according to the prosecutors, “disentitle[s] claimants from challenging a pending civil forfeiture action.”
“Claimants are not being confined or held in custody overseas, such that they are prevented from voluntarily surrendering on the criminal warrants,” the government argues in reference to the initial, Jan. 2012 indictment.
“Claimants Bram van der Kolk, Finn Batato, Julius Bencko, Kim Dotcom, Mathias Ortmann, and Sven Echternach, are deliberately avoiding prosecution by declining to enter the United States where the criminal case is pending,” prosecutors continue. “The key issue in determining whether a person is a fugitive from justice is that person’s intent. A defendant who flees with intent to avoid arrest is a fugitive from justice.”
In conclusion, US Attorney Dana Boente writes for the government that the claims of the alleged co-conspirators “should be stricken based on the doctrine of fugitive disentitlement.” According to federal law, a court can “disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person… declines to enter or reenter the United States to submit to its jurisdiction.”
“The United States asks the Court to strike their claims to prevent them from ‘mak[ing] a mockery of our system of justice’,” Boente ends this week’s filing.
Ira Rothken, an American-based lawyer for Dotcom, told Torrent Freak this week that “The DOJ is trying to win the Megaupload case on procedure rather than the merits.”
“Most people don’t realize that Kim Dotcom has never been to the United States,” Rothken responded.
“The United States doesn’t have a statute for criminal secondary copyright infringement,” he added. “We believe that the case should be dismissed based on a lack of subject matter jurisdiction.”
On Wednesday, Dotcom — a German-born businessmen with New Zealand citizenship — took to Twitter to reject the latest filing from the government.
“I have never ever been to the United States. My business had no office there. Exercising my right to oppose extradition makes me a fugitive?” he asked.
According to Hollywood Reporter, the US government seeks an estimated $67 million in assets from Dotcom and his colleagues. The Megaupload founder, who now administers an encrypted file-sharing site, Mega, is not scheduled to have his extradition status heard by the court until next June.