Appeals Court Says It's Perfectly Fine For The DOJ To Steal Kim Dotcom's Money Before Any Trial

from the this-is-pretty-fucked-up dept

Last year, there was a series of very troubling rulings by a district court in a case related to the criminal prosecution of Kim Dotcom. This wasn't, technically, part of the actual criminal case against him, but rather a separate effort by the government to steal his money. We've been covering the ridiculous process of civil asset forfeiture for a while, and it's really problematic in general. In Dotcom's case, it's something of a farce. Remember, civil asset forfeiture is the situation where the US government effectively files a civil (not criminal) lawsuit against inanimate objects, rather than people. In this case, it basically filed a lawsuit against all of Kim Dotcom's money, arguing that it was the proceeds of a crime and therefore, the government should just get it all. Again, this is entirely separate from the actual criminal trial of Kim Dotcom, which has been put on hold while the extradition battle plays out in New Zealand (determining if Dotcom can be forcibly sent to the US to stand trial).

Just the whole process of civil asset forfeiture is troublesome enough. As we've detailed over and over again, it's basically a system whereby law enforcement gets to steal money and other stuff (cars are popular) from people, simply by claiming that they were used in a criminal endeavor. Since the lawsuit is against the stuff, if people want it back, they have to go and make a claim on it, and it's a fairly convoluted process. In this case, things were even more ridiculous, because the government argued that because Dotcom was resisting extradition from New Zealand, he could be declared "a fugitive" and the judge overseeing the case (the same one overseeing his criminal case, Judge Liam O'Grady) agreed. That effectively meant that Dotcom had no legal right to protest the government simply taking and keeping all of his assets -- and they moved forward and did exactly that.

It is difficult to see how this can be legitimately described as anything but theft by the US government. It got someone locked up in New Zealand, based on questionable legal theories, and while he was (quite reasonably) fighting extradition to the US (a place he's never visited and where he has no business ties), it initiated a separate legal process to keep all his money, no matter what happens in his extradition fight and criminal trial. On top of that, it effectively barred him from making an official claim on that money by having him declared a fugitive for exercising his legal due process rights to fight extradition. So while he exercises his legal due process rights in New Zealand, he's blocked from doing so in the US. And all of his money goes to the US government.

As we said after O'Grady's ruling came out, even if you think that Dotcom is guilty of a criminal copyright conspiracy, and even if you think he should be extradited, tried and locked up this should concern you. Let him go through the full legal process, with all that due process entails, and then determine what should happen to his assets. To take them before that's happened, through this questionable side process is immensely problematic.

And that's why Dotcom appealed, and many others -- including a bunch of criminal defense lawyers -- stepped in to argue this was crazy. Unfortunately, earlier today, the 4th Circuit Appeals Court upheld O'Grady's ruling and rubber stamped the DOJ's legalized theft of Dotcom's assets. You should read the 61 page opinion (which was a 2 to 1 decision, with an interesting dissent), but we'll hit on some of the low points here.

There were a number of different arguments raised -- with a big one not just being the basic due process question, but a jurisdiction question. Dotcom's assets are not in the US. His work was not in the US. So why does the US get to seize the money. The majority opinion basically says "because that's what Congress wanted -- it created this law to let the US government seize overseas assets." The opinion admits that there's a bit of a circuit split on this, but goes for it anyway.
When the amendments were introduced in the Money Laundering Improvements Act, Senator D’Amato included an explanatory statement indicating that subsection (b) was intended to provide the federal district courts with jurisdiction over foreign property:
Subsection (b)(2) addresses a problem that arises whenever property subject to forfeiture under the laws of the United States is located in a foreign country. As mentioned, under current law, it is probably no longer necessary to base in rem jurisdiction on the location of the property if there have been sufficient contacts with the district in which the suit is filed. See United States v. $10,000 in U.S. Currency[, 860 F.2d 1511 (9th Cir. 1988)]. No statute, however, says this, and the issue has to be repeatedly litigated whenever a foreign government is willing to give effect to a forfeiture order issued by a United States court and turn over seized property to the United States if only the United States is able to obtain such an order.

Subsection (b)(2) resolves this problem by providing for jurisdiction over such property in the United States District Court for the District of Columbia, in the district court for the district in which any of the acts giving rise to the forfeiture occurred, or in any other district where venue would be appropriate under a venue-for-forfeiture statute.
This is the point that the dissent disagrees on, and argues that the forfeiture should be blocked on jurisdictional questions alone. The key, according to Judge Henry Floyd, is that court decisions must be binding on parties, and not advisory. But that doesn't work when you're talking about an opinion concerning assets overseas, which will still then depend on the local government where those assets live to abide by the ruling.
The majority side-steps this concern by cabining it to the separation of powers context. One of the basic tenets of what constitutes a “case or controversy” cannot be elided so. The defendant in this action--the res--is outside of the United States and beyond the control of the district court. Absent control, no order of the district court can be binding on the res because the fate of the res is ultimately not in the hands of the district court. Instead, the res in this case is subject to the control of the courts of New Zealand and Hong Kong. The district court’s forfeiture order therefore merely advises the courts of a foreign sovereign that (in the district court’s view under the laws of the United States) the United States should have title to the res. Those courts, of course, with control of the res and with the authority vested in them by their own sovereigns, remain free to revise, overturn, or refuse recognition to the judgment of the district court.
As Judge Floyd notes, this makes the opinion nothing more than an advisory opinion, which is prohibited by Article III of the Constitution (concerning the powers of the judiciary).

Back to the majority opinion, the court rejects the argument that this process to steal Dotcom's money without letting him defend himself violates the Due Process Clause of the Fifth Amendment. First, the court says that because some of Megaupload's servers were based in Virginia, the jurisdiction is fine. Then, the court accepts the lower court's decision that Dotcom can be called a "fugitive" even as he's both in contact with the court and going through a perfectly legal process around extradition in New Zealand. Somewhat incredibly, the court decides that because he's resisting extradition, that's the same thing as being a fugitive hiding out. That... should be troubling for a whole variety of reasons. Basically, the court says that due process means that Dotcom has the right to be heard protesting the forfeiture, but that the only way to do that is to stop fighting extradition. It gets down in the weeds parsing the law in determining what the right standard is for determining if fighting extradition counts as being a fugitive, and decides that this was Congress' intent with the law -- that so long as the person is avoiding court, even if for reasons relating to the legality of extradition, they can still be declared a fugitive.
The claimants’ argument that they have legitimate reasons to remain where they are, such as jobs, businesses, and families does not disprove that avoiding prosecution is the reason they refuse to come to the United States.
I imagine that Dotcom's lawyers will now try to fight this as well -- seeking either an en banc rehearing or petition the Supreme Court to hear the case. Both are pretty risky, with a fairly high probability of being rejected. And, of course, as the dissent pointed out, there's still one other hurdle for the DOJ: the assets are held in Hong Kong and New Zealand, and they now need to convince authorities in those two places to hand over the money. And, as of right now, it's not clear if they'll actually let it happen.

Again, no matter what you think of Dotcom's actual criminal case, this result should be concerning to you. The use and abuse of civil asset forfeiture is the real issue here -- not the copyright questions. The ability of the US government to simply take millions of dollars based on accusations and without a guilty verdict in a trial should be tremendously worrying. If a full trial happened and he was found guilty, then there's a reasonable argument that, as a result of that, the money can be forfeited. But it's extremely problematic that the money can be forfeited in these circumstances, before the rest of the legal process has occurred. Under this ruling, even if Dotcom came to the US and was found not guilty, the US government would still keep all his stuff. Can anyone explain how that would be a fair and just result?

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  • identicon
    Anonymous Coward, 12 Aug 2016 @ 11:00am

    "If a full trial happened and he was found guilty, then there's a reasonable argument that, as a result of that, the money can be forfeited."

    Even if after a full jury trial Dotcom is found innocent I very much doubt that the US will handover all that seized money assets back to him.

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    • identicon
      Anonymous Coward, 12 Aug 2016 @ 11:29am

      Re:

      The US Government, via the DOJ, is working towards being able to seize assets and put people jail regardless of jurisdiction and the targets country of residence, whenever their paymasters demand that they do so.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Aug 2016 @ 1:46pm

        Re: Re:

        It's sad that our country is ran by corporate sociopaths.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Aug 2016 @ 3:00pm

        Re: Re:

        Indeed; Trump is a symptom of deeper damage to the American collective's psyche. There was even a satirical film about it.

        reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 12 Aug 2016 @ 5:44pm

        Re: Re:

        It's true, that having to go through another country's extradition system to lay hands on someone who is not a US citizen, has never set foot in the US or owned any actual property in the US is a tad inefficient.

        It would be so much faster if the US courts could simply deputize a Navy SEAL team, send them into a foreign country covertly and just take the accused individual.

        But how would that be any different, from an international law standpoint, from international kidnapping?

        The US is already arguably a rogue state. And the way we're headed, we will soon remove all doubt. I'm not sure which will happen first -- our second civil war or a reenactment of world war two, with us in the role of Nazi Germany.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 Aug 2016 @ 11:07am

    Why go half way?

    If you can be legally punished for exercising your legal rights, then for all intents and purposes those legal rights don't exist. As such they might as well toss the idea of fighting extradition as a legal right, or make it clear that doing so will be treated as an admission of guilt with or without a trial.

    Dotcom wasn't stupid enough to travel to the US voluntarily, the DOJ wasn't willing to guarantee a fair trial and funds so he could defend himself, meaning he wasn't willing to skip the extradition process, so basically they fell back on using his money against him, putting him in the position where if he wanted to keep it, or even have the ability to contest it's theft, he had to stop fighting extradition.

    (Mind, had he been stupid enough to fall for their trap they would have just railroaded him into a guilty verdict and tied him up in litigation for years to come, claiming the money anyway so it's not like he had anything to gain if he had done as they demanded.)

    Every step of the way it's been clear this has nothing to do with 'stopping copyright infringement by using the law to go after those responsible', and everything to do with sending a message.

    Live in a different country? Doesn't matter, we'll get you anyway.

    Refuse to follow USG demands and meekly accept the punishment we've already decided on? We'll punish you anyway.

    Guilty, innocent? Doesn't matter, we'll start by destroying your business and taking everything we can get our hands on, so no matter what happens we still win.

    The DOJ's actions throughout this entire process have shown that they have no interest in ensuring or even allowing a fair trial, no interest in seeing justice done, so even if he does end up losing the money to the sticky fingers in the DOJ he's still better off fighting extradition to the last, as the alternative is worse.

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    • icon
      Ninja (profile), 12 Aug 2016 @ 11:32am

      Re: Why go half way?

      Why are we surprised? Look at Snowden. It's not about justice, it's about what the Reich wants.

      reply to this | link to this | view in chronology ]

    • identicon
      Boo, 14 Aug 2016 @ 3:27am

      Re: Why go half way?

      In Kim Dotcom's case I don't think, whatever the eventual outcome, they will 'win' . Define what is to win..

      Push an innovator to create a new kind of cloud storage and distributed Internet that is virtually unstoppable , encrypted and autonomous with no-one to serve supaenas (can't yet spell that word and crappy iPad doesn't allow me to check it elsewhere..) on - seems like the more the DoJ push, the worse they make the future for MPAA et al.. Looks like a lose.

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    identicon
    Anonymous Coward, 12 Aug 2016 @ 11:16am

    Your sour grapes are delicious, Mike. Thanks for making my day even better!

    It's "fair and just" because Dotcom had the opportunity to be heard, yet he refused to take advantage of it. Dotcom wants the benefits of the legal system without its burdens. It doesn't work that way, and rightly so. Dotcom could have defended his property, but he'd have to defend his criminal charges too. Now he's reaping what he's sown.

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    • icon
      Ninja (profile), 12 Aug 2016 @ 11:31am

      Re:

      People like you are disgusting.

      Then again you probably didn't read or you wouldn't be spewing so much bullshit in a single comment.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 Aug 2016 @ 11:33am

      And your open contempt for due process, where punishment is handed out after a guilty verdict rather than before is telling.

      It's "fair and just" because Dotcom had the opportunity to be heard, yet he refused to take advantage of it.

      Sure, absolutely. The sheep has the opportunity to be heard, it just needs to walk into the wolf den to do so.

      So is contesting extradition a legal right or isn't it?

      He was punished because he refused to go to the US, punished for exercising a legal right by being told that if he didn't stop fighting extradition he had no standing to contest the theft of his money by the DOJ. If that's your idea of 'fair and just' then you'd fit right in at the DOJ it seems.

      Speaking of 'opportunities not taken', several years back Dotcom offered to skip the extradition fight entirely and willingly go to the US for trial if the DOJ was willing to do two simple things, namely guarantee a fair trial and that he'd have access to sufficient funds for housing and legal defense. Funny how they found those terms to be so impossible or arduous that they instead chose to continue with the extradition fight. You'd almost think that they had no intention of allowing him a fair trial, and no interest in him being able to defend himself in court.

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    • identicon
      Anonymous Coward, 12 Aug 2016 @ 11:40am

      Re:

      It's "fair and just" because Dotcom had the opportunity to be heard, yet he refused to take advantage of it.

      Well you're quite the short-sighted little twit, aren't you?

      He also has a right to fight extradition to a foreign country. Are you arguing that should go away? If so, be careful what you wish for...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Aug 2016 @ 12:02pm

      Re:

      From a NZ Court ruling: "It is, I think, self evident from the above discussion that the plaintiffs have a substantial position to preserve and there will be very real consequences if it is not protected, pending final determination of the claim for review. If the provisional view I have formed about the unavailability of post-registration relief is correct, authorising the registration application to proceed now might deprive the plaintiffs of any ability to defend the extradition or to pursue their appeals against the forfeiture order in the United States.

      I have little hesitation in concluding that interim relief should therefore be granted. Accordingly there will be a declaration that the Commissioner of Police is to take no further action that is consequent upon the decision by the Deputy Solicitor-General (Criminal) to authorise him to apply to register the foreign forfeiture orders made by Judge O’Grady in the District Court in Virginia on 27 March 2015 until further order of this Court."

      Good luck with getting NZ to handover the forfeitured money and assets to the US!

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    • identicon
      Quiet Lurcker, 12 Aug 2016 @ 12:03pm

      Re:

      Uhm, just no.

      DOJ refused to guarantee a fair trial or access to funds sufficient to living needs.

      IOW, they basically told Dotcom that no fair trial was forthcoming.

      Wouldn't you fight like ********* to give people like that a wide berth?

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    • identicon
      Anonymous Coward, 12 Aug 2016 @ 12:21pm

      Re:

      Let's look at this differently.

      Say you live and work in the US, and run a blog site that has become relatively popular. You have an ad network set up, and make a decent profit off it. One of the blogs using your site belongs to the Falun Gong.

      You get a nastygram from the Chinese government telling you to remove the content "or else." As you never plan to visit China, you laugh it off.

      Next thing you know, your house is surrounded by a SWAT team, you're put in jail, and are facing extradition to China for seditious acts against the government.

      You rightfully protest the extradition, as well as your initial arrest.

      Meanwhile, China files civil proceedings against you in China to seize all your assets. In order to contest the proceedings, you need to go to China, as they currently consider you a fugitive from justice.

      NOW does this make more sense to you?

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    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 12 Aug 2016 @ 1:15pm

      Re:

      You're confused- Masnick isn't interested in facts here.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 12 Aug 2016 @ 1:27pm

        Re: Re:

        As opposed to your super interest in defending the actions taking place? Your expansive arguments for how this is all just wicked awesome and just?

        Really, if all you've got is personal attacks put some effort into it, provide some entertainment, don't just throw out the same old crap all the time.

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      • identicon
        Anonymous Coward, 12 Aug 2016 @ 1:37pm

        Re: Re:

        You're confused- Masnick isn't interested in facts here.

        What difference would it make? You're not interested in debating facts.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Aug 2016 @ 1:55pm

        Re: Re:

        Here's a fact for you, bawk!

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Aug 2016 @ 1:58pm

        Re: Re:

        Stop talking to yourself (through different IP addresses). You're not convincing anyone else of anything other than you're an idiot so what good is this doing you?

        If the people are really interested in favoring IP laws Hillary Clinton wouldn't have temporarily changed her opinion on TPP just to throw Bernie Sanders off because it would have been the voters that favored the TPP and other pro-IP legislature and so Clinton would have stuck with it. She changed her mind at a politically convenient time so that she can get votes, she knows what the people want and it's definitely not more IP or IP enforcement. That's why you're here for an audience, because the people are here, because it's the people that don't care for our outrageous corporate bought IP laws. and so you're not convincing anyone of anything by talking to yourself.

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        • identicon
          Anonymous Coward, 12 Aug 2016 @ 5:14pm

          Re: Re: Re:

          Also lets not forget that the candidate approval rating is at an all time low. Almost no one agrees with either of these (mostly pro-IP) candidates. Some democracy we have.

          reply to this | link to this | view in chronology ]

      • icon
        Gwiz (profile), 12 Aug 2016 @ 2:07pm

        Re: Re:

        You're confused- Masnick isn't interested in facts here.


        What facts do you think are missing?

        These are the facts that I know:

        1) The US government is charging Dotcom/Mega with a convoluted mixture of "criminal conspiracy of civil offenses" that doesn't actually exist in our statutes/caselaw.

        2) Dotcom/Mega have not been found guilty of any crimes (civil or criminal) in the US.

        3) The US government has now punished Dotcom/Mega without actually gaining a conviction of any sort.


        I honestly hope that everyone who is cheering this ruling can experience the joys of asset forfeiture for themselves. All would take is for DEA confidential informant giving the Feds a wrong address and you would have a wonderful, expensive couple of years trying to get your property back.

        The solution for fixing the problems with asset forfeiture are easy ones. Simple as tying them to a conviction of a crime. Everything seized gets held in escrow/storage until the outcome of the criminal trail. If the defendant is found not guilty, the government has to return everything. If the defendant is found guilty then anything found to be instrumental or a product of the crimes that were determined by a court of law to have actually occurred gets forfeited.

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        • icon
          That One Guy (profile), 12 Aug 2016 @ 2:20pm

          Re: Re: Re:

          The solution for fixing the problems with asset forfeiture are easy ones. Simple as tying them to a conviction of a crime. Everything seized gets held in escrow/storage until the outcome of the criminal trail.

          Unfortunately that leaves available a trick the government/prosecutors like to use, namely ensuring a conviction by making it so that the accused can't afford to fight back, as they've attempted here and elsewhere.

          Putting siezed funds in escrow still deprives the accused of the assets needed to fight back, which means it would still be punishment handed out before a finding of guilt. A workabout I suppose would be to allow the accused to withdraw funds sufficient to cover basic expenses(legal and living) with any expenditures carefully watched to make sure it's used only for what's needed, though that would have to be handled by an unbiased third-party, as you can be sure that the prosecution would argue that only the cheapest legal representation was truly 'necessary'.

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          • identicon
            Quiet Lurcker, 12 Aug 2016 @ 4:23pm

            Re: Re: Re: Re:

            No. The correct work-around is very simple and takes one law:

            Civil asset forfeiture under any circumstances is strictly forbidden. Any person who recommends, requests, suggests, or participates in any attempt whatsoever to complete a civil asset forfeiture shall be terminated from their employment and, in the case where the accused holds a professional or other, work-related license(s), such license(s) shall be revoked permanently.

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            • icon
              That One Guy (profile), 12 Aug 2016 @ 5:03pm

              Re: Re: Re: Re: Re:

              Good point, revoking the very idea of asset forfeiture would be a much better fix, the thing's been rotten from the start and provides all the wrong incentives.

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              • icon
                Anonymous Anonymous Coward (profile), 12 Aug 2016 @ 5:20pm

                Re: Re: Re: Re: Re: Re:

                Civil for sure. Criminal might be another story.

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                • icon
                  That One Guy (profile), 12 Aug 2016 @ 6:45pm

                  "No really, this gear will ONLY be used for counter-terrorism purposes, promise."

                  Eh, even then I'd probably say it should be tossed, if for no other reason than if even a sliver of it is allowed to exist it's not if but when it will once more start to be applied elsewhere.

                  I can see why it might be a good idea for criminal cases, as it seems to be along the lines of why I've noted multiple times that fines for companies should be at a minimum what they gained from their illegal/dodgy actions, I'm just not sure if it would cause more good than harm with it's inevitable abuse and expansion.

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      • identicon
        Anonymous Coward, 12 Aug 2016 @ 4:48pm

        Re: Re:

        Do you two need to get a room?

        reply to this | link to this | view in chronology ]

      • icon
        Padpaw (profile), 12 Aug 2016 @ 6:40pm

        Re: Re:

        what do you get paid per hour to shill for the US justice department?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Aug 2016 @ 1:47pm

      Re:

      By the way boy, this is actual theft. Not what you Kopyright Klowns keep insisting that infringement is.

      reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 12 Aug 2016 @ 2:25pm

      Re:

      "Dotcom could have defended his property..."

      well, no, he could not as he was hamstrung (no pun intended, hee hee hee); BUT, that is skipping right over the bigger point being made: PROPERTY becoming a 'defendant' in some made-up legal 'principle' THAT MAKES NO SENSE -much less justice- on the face of it...

      but ein gut authoritarians like you lap that ship up like it was a cure for cancer...

      reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 12 Aug 2016 @ 11:35am

    Turnabout?

    And if this stands, then how many other governments can just declare wealthy people in the US as guilty under their laws and seize their assets? That's one way to go after facebook, google, whatsapp, and all the others they don't like.

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    • icon
      That One Guy (profile), 12 Aug 2016 @ 12:01pm

      Re: Turnabout?

      Indeed, the arguments presented in this case stand to open up US companies to a world of hurt. Using the logic employed during this debacle the US wouldn't have any grounds to object either, since simply having local servers of the company in those countries would be good enough to grant global jurisdiction over the companies to the foreign governments.

      - Company has assets in country X.
      - Government asserts that the assets mean the company is required to follow all the law and judgements in country X.
      - Government in country X claims company is engaged in illegal actions.
      (So far so good, but here's where it gets nasty)
      - Government demands that owners of company go to country X to defend themselves personally. Company owners believing that they wouldn't get a fair trial refuse.
      - Government asserts that refusal to defend themselves and their company in person is an admission of guilt, and further declare that because the company has assets in country X that the government there can claim company assets from any location they are found.
      -Adding insult to injury the government claims that since the owners admitted their own guilt by refusing to defend themselves in person they have no grounds to challenge the judgement, and if they want to keep their assets their only recourse is to hope they can convince the other governments where those assets are currently held not to honor the judgement handed out by country X's court system.

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      • icon
        art guerrilla (profile), 13 Aug 2016 @ 6:37am

        Re: Re: Turnabout?

        c'mon, you know better, T.O.G., that is where the two-tiered (in)justice system comes in: amerikan exceptionalism means it is okay for us to visit whatever living hell we want to upon any one else, but the same (bullshit) 'principles' used to excuse visiting said hell upon others can NOT be turned on us ! ! !
        r u sirius ? ? ?
        US'ns kontrol the UN, US'ns kontrol the intl kourts, US'ns kontrol NATO, etc, and -most importantly- US'ns kontrol the biggest war machine in his story...
        WHO is going to bring US to heel ? ? ?
        nooooooobodeeeeeeeee...

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        • icon
          Padpaw (profile), 13 Aug 2016 @ 10:20am

          Re: Re: Re: Turnabout?

          the citizens will eventually revolt. Though i suspect it's going to take a massacre of unarmed civilians by state controlled security forces to force the uprising into gear.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Aug 2016 @ 12:37pm

      Re: Turnabout?

      Why does it even have to be other governments? The ratcheting of power tilting the scales of justice into a permanent David vs Goliath. They have numerous duplicative laws to charge you with that would result in decades or centuries in prison if you fight and lose. You generally have an overworked, underpaid public defender who doesn't even bother to read your case and just tells you to plea down. There are orders of magnitude too many cases moving through the justice system to actually allow each and every one to have a fair and speedy trial. Demand a jury of your peers hear your case. When acting as juror, don't forget about jury nullification. You ultimately get to judge the law itself by saying not guilty even when the party is technically guilty, its just a bogus law.

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  • identicon
    Paul Clark, 12 Aug 2016 @ 11:59am

    Can Kim Dot Com make a claim under TPP

    if New Zealand and the US sign the TPP treaty, I wonder if he could make a claim under the investor-state dispute mechanism? That would be interesting ....

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Aug 2016 @ 12:16pm

      Re: Can Kim Dot Com make a claim under TPP

      I wonder if he could make a claim under the investor-state dispute mechanism?
      He doesn't have enough power.

      Take an outfit like the BP oil company. If they get pissed off, they can go spill a whole bunch of oil in the Gulf of Mexico, and then say “oops”. You're never going to prove that they spilled on you in order to send a message —like a bully who spills a drink on you in a bar— so you might as well not even say so out loud. But an outfit like BP can really mess up a country.

      Outfits like that have enough power, raw-naked force, to get favorable results under “investor-state dispute resolution”.

      If you're not in that class, then you don't. That simple.

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  • icon
    ECA (profile), 12 Aug 2016 @ 12:00pm

    HATE TO SAY IT..

    What happened to:

    TRUTH, JUSTICE, and the AMERICAN WAY?

    redefined?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2016 @ 12:03pm

    Is this case being held in Australia? Because there are so many god damn kangaroos.

    reply to this | link to this | view in chronology ]

  • identicon
    bob, 12 Aug 2016 @ 12:05pm

    is there possible corruption going on.

    Who appointed the majority opinion judges in this case? Seems like a good time to fire them and hire new ones.

    Also just from the misguided reading of the law it makes me wonder if the judges are being paid off somehow for their decision.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 12 Aug 2016 @ 12:25pm

    Appeals court approves presumption of guilt.

    Asset forfeiture on the presumption that assets are criminal is no less than that.

    reply to this | link to this | view in chronology ]

  • identicon
    Valentino, 12 Aug 2016 @ 12:26pm

    That's Insane

    See United States v. $10,000 in U.S. Currency[, 860 F.2d 1511 (9th Cir. 1988)]

    I would like to cross-examine that $10,000 in currency!

    Seriously, this is like something from a dystopian comedy. I can't believe that I have never heard of this, and worse, I can't believe that it actually happened, that's it's now accepted case law.... that's madness at a terrifying scale.

    I am now very interested in someone suing Apple in Ireland for money laundering. There will come some day when Ireland is no longer the go-to jurisdictional tax dodge, and when they see that the business simply is no longer theirs to lose.... BAM!! A good-for-the-goose-is-good-for-a-gander paycheck.

    reply to this | link to this | view in chronology ]

  • identicon
    Barb Dwyer, 12 Aug 2016 @ 12:59pm

    > I would like to cross-examine that $10,000 in currency!

    Point of order:  Counsel will do a direct examination first, as per usual.  Bailiff shall place the pile of bills in the witness box & point the microphone at it.  When it refuses to answer questions, hold it in contempt & make it sit in a jail cell until it complies.

    Celebrate the absurdity.  [tongue-face]

    reply to this | link to this | view in chronology ]

  • icon
    James Burkhardt (profile), 12 Aug 2016 @ 1:46pm

    I predict it will go to the supreme Court. They will accept the case then punt on the issue of civil forfeiture by ruling with the descent in the appeals case, and ruling they cant issue an advisory opinion/

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2016 @ 1:48pm

    and while the USA judicial system is allowed to run, rife with corruption and those who will do anything that Hollywood and other entertainment industries demand, whilst backing up the equal corruption in the USA legal system, nothing will change. the money MAY have come from illegal activities, but that hasn't been to trial yet, let alone proven! there is no way the Government should be allowed to just take this or any other property from this or any other defendant! that money should be allowed to pay for the defendant(s) defense, and if found guilty, then what is left should be seized and the person(s) concerned billed for the rest. denying the person the ability to get and pay for decent defense attorneys like this is ridiculous and exactly the sort of underhanded trick the industries pull and when aided by the total corruption in the system, what chance has anyone got of defending them self properly? everyone who is taken to court might just as well save all the hassle and just be stood in front of a firing squad on arrest!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2016 @ 2:13pm

    You will forfeit your vital organs my friend, as they were used in the commission of a crime. God is merciful and compassionate, the US government, not.

    reply to this | link to this | view in chronology ]

  • icon
    MarcAnthony (profile), 12 Aug 2016 @ 2:37pm

    Monkey selfie allegory

    If a monkey can’t hold copyright on a picture that it took if itself because it’s not recognized as a legal entity, then how can money be a defendant? Where is the personhood? Where is the due process in presuming the money acted in any way—let alone criminally? The ludicrous majority opinion in this case is dangerous for the world; it shows that the judiciary has devolved into the unthinking hammer of the US government, rather than a forum for justice.

    reply to this | link to this | view in chronology ]

  • identicon
    Kronomex, 12 Aug 2016 @ 4:30pm

    Dotcom is, to me at least, a test case for further foreign asset seizures resting in the US pipeline.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2016 @ 4:35pm

    Theft Under Color of Authority.

    The United States government no longer cares about protecting property rights, the right to defensive weapons, freedom of speech to say what you want.

    Why should I care about the government's rights and authorities if they ignore mine? If those who swear an oath to defend and uphold the Constitution do nothing of the sort, does that mean I no longer have to uphold my side of the agreement and stop legitimizing the governance of tyranny?

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 12 Aug 2016 @ 6:34pm

    Again this attitude of "we have military might so we can bully foreigners and steal whatever we want from them" will eventually lead to war.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Aug 2016 @ 7:23pm

    Perfect Satire

    Someone should establish an Inanimate Object Defense Fund. Since if the government insists upon suing inanimate objects they are clearly entitled to representation.

    reply to this | link to this | view in chronology ]

  • identicon
    I'm being anonymous for a reason, 12 Aug 2016 @ 9:31pm

    this is why I'm worried about Clinton.

    Having worked as a contractor under the Department of State when Hillary Clinton was the boss, this is why I'm worried about her becoming President. There are going to be a lot of favors called in and hand-outs to certain industries. The close ties to the RIAA/MPAA that the Clintons have concerns me. Far reaching effects. I got to see where priorities were when i was working in Iraq. One of the first things her DoS did was tell the locally owned and operated shops that they could no longer sell copies of DVDs or music. We had been asking about extra security and were told there were no resources, but somehow there were resources to shake down a guy selling pirated music CDs and DVD sets of "Friends."

    reply to this | link to this | view in chronology ]

  • identicon
    When Pigs FLY, 12 Aug 2016 @ 11:47pm

    Re: but piracy is the American way, Mammon!

    Mike Masnik-

    Just for the sake of argumentum ad Constitutionialis-what do you think of the fact that the founding fathers themselves,prior to, and despite the Constitution many of them were themselves engaged in piracy!

    Most notably, Ben Franklin ( apologies for a link to the competition-but I pirated it, so....)

    http://arstechnica.com/information-technology/2010/09/benjamin-franklin-founding-pirate/

    DotCo m is playing by the exact set of rules he laments-which could indicate the case is a no-starter.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 13 Aug 2016 @ 12:48am

    Come Off It

    "The ability of the US government to simply take millions of dollars based on accusations and without a guilty verdict in a trial should be tremendously worrying."

    All Kim Dotcom has to do is show up in court and faces the charges, and the forfeiture wouldn't be such an issue. An innocent man would be sleeping on the court's doorstep for the chance to prove his innocence and resolve the issue, making the seizure moot (and reversible).

    Kim's problem is that he is trying hard to avoid US courts, he has been fighting tooth and nail to not face justice, and without a doubt he would have spent his way through his (alleged) ill gotten gains in doing so. There would be little or no real justice if at the end of the day, Kim can use the money obtained in his crimes (alleged) to live an over the top lifestyle - which he is trying to do anyway.

    What would be worrying would be allowing people who rob a bank to use the money they obtained and then transferred to offshore accounts to pay for their criminal defense. Like it or not, that is essentially what Kim tried to do.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Aug 2016 @ 6:12pm

      Re: Come Off It

      "All the sheep needs to do to prove why it does not deserve to be eaten by the wolf is to enter the den where the wolf lives."

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2016 @ 7:05am

    If the statute of limitations is 5 years for the criminal case against Dotcom then its way possible that the criminal charges against him will expire before The Supreme Court in NZ get to hear the appeal against extradition should it reach that far for them to hear it as in Jan 2017 it will be 5 years since the site was shutdown due to a court order shutting it down etc.

    If the criminal charges do expire before The Supreme Court in NZ get to hear the appeal for extradition then there will be nothing for them to rule on as the time limit on the criminal charges would have expired and so no grounds of extradition can be met.

    The civil case against Dotcom will continue until the statue of limitations of 3 years kick in and if the assets and money haven't been handed over to the US by then i cannot see how the US will still be able to claim on them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2016 @ 11:57am

      Re:

      They'll claim the money via the way they got NZ to agreed to this farce...by secret bribery.

      They'll bribe a few officials at whatever banks Dotcom's money is held to 'accidentally' run a bank transfer so it's under US jurisdiction.

      (They've done this MANY times before, even though its morally wrong and illegal as fuck)

      Then the money from DOTCOM will 'appear' to go the US treasury, whilst in fact it actually lines the pockets of the CIA and the DOJ management.

      Again something that's happened before and will happen again - how else you think government staffers 'officially' on 70k a year have houses worth millions?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2016 @ 11:54am

    And THIS is why there's been a run on US banks, as people get the hell out of Dodge.

    Basically the US is now going after pretty much ANY foreign account with more than a few thousand dollars in it.

    It's why MILLIONS of Europeans withdrew money from US banks during July and started dumping shares in US companies.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2016 @ 1:07pm

    "Can anyone explain how that would be a fair and just result?"

    Depends on exactly who you are referring to when you say "fair and just", as in Fair and Just to Who?

    Since the only thing the US DOJ is currently concerned with is raising non-taxable income from sources directly linked to criminal investigations that allow the legal theft of the property of others; such as Drug War investigations, I would say yes, this ruling is definitely fair and just to the Department of Justification.

    As far as whether this was fair and just for Kim Dotcom, well, he aint an American, so the DOJ has absolutely no obligation to be fair or just whatsoever.

    All foreigners are fair game now, as can be seen in the Surveillance Rules, where anyone from any foreign country can be abused in any way, up to and including being eliminated by a USG Remote City Block Remover Drone, 100% legally.

    The US has once again unofficially declared war, but this time, its against the rest of the world's civilian population, because... well because of drugs, terrorists, and all that free money. :)

    But don't feel too badly America, the DOJ has always considered American citizens to be "potential foreigners" and already has laws in place to take all of your money at gunpoint. And Obama has just offered all the cops in America bigger guns, so the Department of Justification will be considering all you legal citizens as Foreign Equivalent, soon enough.

    ---

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2016 @ 1:37pm

      Re:

      The US has once again unofficially declared war, but this time, its against the rest of the world's civilian population,

      Strike 'rest' as they have also declared war on their own citizens.

      reply to this | link to this | view in chronology ]

      • icon
        GEMont (profile), 17 Aug 2016 @ 4:57pm

        Re: Re:

        "...has once again unofficially declared war..."

        "Strike 'rest' as they have also declared war on their own citizens."

        Notice the word "again" in the first line above.

        The first time the USG unofficially declared war on a population of civilians, was right after 9/11 and the population designated as the enemy, was indeed, the American Population.

        Mind you, the groundwork for the secret legislation that gives this undeclared war its legal powers, was laid down during the War on Drugs.

        You may even recall some stories way back when, about the lower-class civilian American Public being labelled as the "adversary". :)

        ---

        reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 13 Aug 2016 @ 1:08pm

    oops

    yeah, that was me. :)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2016 @ 1:26pm

    Re: because some of Megaupload's servers were based in Virginia

    Well this move will certainly be good for the Cuban economy. If Cuba hasn't scheduled install for half a dozen loops of undersea cable started erecting data centers they are out to lunch.

    If your natural rights under article 1 or the 5th amendment are no longer observed, then why keep your PPE in the Geographical U.S. at all? This isn't like boosting some dopers car. In this business you can change nations of origin in about half an hour.

    If they can't control their sticky fingers, the market will recognize and reflect that. It will be the Internet equivalent of the Japanese automarket invasion of the 80's except in Internet technology.

    Perhaps that's what they are after. We do go through periods of "The great pimping of the American economy" occasionally. Invariably it is led by some say-anything politician. The Bushes pimp the U.S. for Saudi Arabia, Kerry pimped the U.S. for central American dictators, the Clintons are pimping it for... Apparently anyone willing to pay at this point?

    -Johnson/Weld
    -Because pissing off Congress is better than getting pissed on.

    reply to this | link to this | view in chronology ]

  • identicon
    Geoffrey de Galles, 14 Aug 2016 @ 4:49am

    #BDSUSA

    reply to this | link to this | view in chronology ]

  • identicon
    I mean Haven't we seen enough already?, 14 Aug 2016 @ 8:48am

    Active Fantasy

    If I was a wizard, I would turn every lawyer in the world into a bunch of shoe shine boys and girls.

    reply to this | link to this | view in chronology ]


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