Last month, the 4th Circuit Court of Appeals rejected efforts by Kim Dotcom to regain control over millions of dollars in assets seized by the US Government. Yesterday, Dotcom's legal team petitioned the Court for a rehearing and rehearing en banc on the issues of forfeiture of assets and fugitive disentitlement.
As Megaupload was being shutdown in 2012, authorities in the United States, New Zealand and Hong Kong swooped on millions of dollars in cash and other property.
The US government said that these considerable assets were the product of copyright infringement and money laundering. As a result, sweeping steps were taken to take control of bank accounts and other property belonging to the defendants in the so-called Mega Conspiracy.
After meeting with stiff opposition when attempting to extradite Dotcom and his co-defendants, the US Government branded them fugitives from justice and subsequently won a legal battle to seize their millions.
Soon after, Megaupload’s legal team filed an appeal with the Fourth Circuit Court of Appeals. However, that ended in disappointment last month when a three-judge panel at the Fourth Circuit handed down a two to one decision against Dotcom.
The Fourth Circuit upheld the decision of the lower court, dismissing the argument that the seizure order against Dotcom’s assets had no jurisdiction and finding that as a fugitive, the Megaupload founder had no standing to reclaim his assets. With more than $67m at stake, that was a particularly big deal.
At the time, Dotcom vowed to fight back and yesterday the first stage of that process began. Headed by Ira Rothken, Dotcom’s US legal defense announced that they had filed a Petition to the Fourth Circuit Court of Appeals for a rehearing and rehearing en banc on the issues of forfeiture and fugitive disentitlement.
“Petitioners seek en banc review of a 2-1 ruling that conflicts with the precedents of this Court, the Supreme Court, and other circuits on issues of importance to the scope of federal jurisdiction over foreign property and civil forfeiture law,” the filing begins (pdf).
The petition goes on to highlight the gravity of the matter – the largest criminal copyright case in U.S. history – and notes that the US government acted aggressively by seizing property first and then relying on the doctrine of “fugitive disentitlement” to achieve forfeiture without having a trial on the merits.
Noting that the decision of the Fourth Circuit panel was not unanimous (Judge Floyd dissented), Dotcom’s team says that the ruling conflicts with precedents of both the Fourth Circuit and the Supreme Court.
“[U]nder this Court’s precedent, ‘[o]nly if the court has exclusive custody and control over the property does it have jurisdiction over the property so as to be able to adjudicate rights in it that are binding against the world,” the petition reads.
Noting that the property in question is controlled by foreign courts that are not compelled to comply with a U.S. forfeiture order, the petition describes the ruling as both a “hypothetical judgment” and an “unconstitutional advisory opinion.”
“En banc review is needed to ensure uniformity in this Court’s decisions, and to avoid a conflict with Supreme Court precedent,” it adds.
Finally, the petition underlines the claims Dotcom has been making from the beginning, that the US Government is abusing its powers in order to gain unfair advantage over citizens of foreign countries that have never set foot on US soil.
“By stacking allegations of fugitive status on top of allegations of forfeitability, the government can obtain an unprecedented, roving worldwide license to indict foreign citizens who have never lived or worked in the United States and forfeit their foreign property — all without proving any wrongdoing or having control over the property,” it warns. “Review is warranted.”
Whether a rehearing will be granted remains to be seen but Dotcom says he intends to take his case all the way to the Supreme Court if necessary.