Megaupload Renews Request For Criminal Charges To Be Temporarily Dismissed; Reminds Judge Of Earlier Request
from the er,-we-did-ask-for-that dept
In response, however, Megaupload quickly filed a motion reminding the judge that they had, in fact, suggested dismissal without prejudice back in July, quoting the transcript during oral arguments, which also points out why due process suggests this is the only proper result for a company that has effectively been killed and has no recourse since it hasn't truly been charged yet:
THE COURT: Well, that—can I require them to serve the company on any particular date? There's no date in the rule—there appears to be no statutory limitation, and I understand your due process argument. So I—what if I, you know, would start with a premise that I don't control when the Government decides to serve the company. Where do we go from there?In other words, Megaupload is saying dismiss this case until Dotcom is extradited, at which point (if he's ever extradited) then the company can be charged. But in the meantime, it's only fair to not have the company held back -- and the company did make that suggestion many months ago, contrary to the judge's suggestion otherwise.
MR. BURCK: Well, Your Honor, we would submit that if the Court were ruling—going in that direction as a reasoning matter, that the appropriate result would be to dismiss the indictment without prejudice.
Because the company, again, has already suffered all the consequences of a criminal prosecution, so the—even if there's a trial and the company is acquitted and the individuals are acquitted, of course the company is still done.
So, we think that the due process claims trump all the other issues, and we think that if the Court were so inclined, that the Government should take certain steps in order to effectuate service, then—or if the extradition proceedings would be the relevant time line for that, again, the company should have an opportunity during that period of time to try to rehabilitate itself, because there isn't currently a criminal case that is sufficient for purposes of service and they've suffered massive harm.
So, of course, that would not be our preference, and we do think that the Supreme Court has said you can't change the rules of service, et cetera, but the—that’s all in our brief—but we do think that the alternative would be dismissal without prejudice, allow the Government at the appropriate time to then supercede the indictment again, add the corporation into the indictment.
And at that point, a year down the road, two years, however long it takes and wherever the MLAT process or the extradition process takes, at that point we could have this argument as to specific individuals, corporations, entities. But, in the meantime, having the company subject to the burden of a—the incredible burden of a criminal prosecution with no ability to defend itself and no service is an extraordinary result and one that is unprecedented.