Kim Dotcom Offers To Come To The US, If DOJ Releases Funds For Legal Defense

from the your-move dept

Tue, Jul 10th 2012 10:02pm — Mike Masnick

We just noted how the procedural delays in the case against Kim Dotcom meant that it was more difficult for him to fight back against the US government. In response to all of this, Dotcom is offering the Justice Department a deal. He will come to the US and defend the case here if it agrees to unfreeze assets specifically to allow him to fight the case (i.e., pay lawyers and living expenses during the trial). In other words, he's willing to skip the extradition fight and believes he can win in a US court, if they're willing to actually let him access the money to pay for the defense. As he told the New Zealand Herald:

He said he would willingly go to the US if he and his co-defendants were given a guarantee of a fair trial, money to pay for a defence and funds to support themselves and their families.

"They will never agree to this and that is because they can't win this case and they know that already."

This is an interesting move, because it's entirely possible that the DOJ will call his bluff here. Certainly, some of the strength in Dotcom's case is that he wasn't violating New Zealand law (which is required for the extradition to take place). A fight in a US court, against the DOJ, is a much tougher proposition -- and a very risky bet. There are a lot of reasons why Dotcom may have a strong case, but the DOJ rarely loses. It happens, but it's rare. Even in extreme cases, the DOJ is pretty good at railroading those they indict to "plea" out of a case rather than face a full trial.

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Filed Under: doj, extradition, kim dotcom, new zealand
Companies: megaupload

52 Comments

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Alana (profile), 10 Jul 2012 @ 9:32pm

I doubt they'd do it.

They want him broke and unable to defend himself.
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AzureSky (profile), 10 Jul 2012 @ 10:14pm

I bet they will wait till 2013 to agree...that way, either way, hes out alot of money waiting.....after all the real goal of all this was to kill megaupload+megavideo+mega(whatever)
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Aerilus, 10 Jul 2012 @ 10:16pm

i doubt they will do it too, but i get the felling if they said they would dotcom might expand a little on what he means by "a fair trial" i.e. adding additional conditions, then he would tell the media that the U.S. specifically denied him a fair trial in advance. I love the fact that hopefully he is playing on the same level as the DOJ and hopefully is playing just as dirty. the pirate bay case wasn't a fair match this on the other hand could shape up to be very interesting.
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[citation needed or GTFO], 10 Jul 2012 @ 10:28pm

Ballsy move, but he'll lose the home turf advantage...
The usual "Dotcom is an obnoxious fart-tard, so he must be guilty" aside, who wants to make a bet that the moment he steps into the US, he'll be trumped up with terrorist charges?

The DOJ might call his bluff with the promise of a "fair trial," but there's no guarantee that they won't rescind that promise as soon as he's in their clutches.
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Anonymous Coward, 10 Jul 2012 @ 10:35pm

Basically, he is doing what I suggested yesterday. Honestly, if he feels he is innocent, he is going the right way here.

Sadly, he is a bit of a jackass about it, he can't resist trying to get one over on people. He may find that they agree, but that "living expenses" is a cheap hotel room near the court room, and that doesn't mean champagne wishes and caviar dreams. It might also mean that the legal expenses would have to be controlled and paid out from the feds from the time to time, not with an unlocked "here's your money back" situation.

What Kim isn't understanding is that, even if he does skip around the nearly year long delay in New Zeland, he still faces a US legal system that is likely to choke on his case for the forseeable decade or so. I don't expect this one to run any faster than the Jammie Thomas or Joel Tenebaum cases have gone, and each of those are running into the years. With appeals, third party interventions, civil suits, prolonged discovery, and all that stuff, the case would likely take years before it truly got heard - and then years of more appeals, possibly all the way up the chain to SCOTUS if the issues seem particularly relevant.

He needs to accept that he is screwed and work from there.
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@matt_phipps, 10 Jul 2012 @ 10:35pm

Fair trial means the US can't present evidence that has been obtained illegally (i.e. most evidence to date according to recent NZ decision). Essentially it is an offer the US can't accept if they want a conviction.

But if the US reject the deal, Dotcom will argue to the NZ court that he will never get a fair trial in the US so they block extradition.

The gamble is that the US will lie, accept the deal, get him to the US, then refuse the fair trial/funds. Of course a politician would never promise something before an election and later... oh wait. #carbontax
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Anonymous Coward, 10 Jul 2012 @ 10:48pm

This might be either brilliant or terrible... especially if they find him guilty and try to set some terrible precedent
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Karl (profile), 10 Jul 2012 @ 10:50pm

Re:
I don't expect this one to run any faster than the Jammie Thomas or Joel Tenebaum cases have gone

Those are civil cases. In civil cases, both parties can appeal. With criminal cases, however, an appeal can only happen if the defendant appeals a conviction.

If Dotcom is acquitted, the government cannot appeal the case. (They also cannot appeal with e.g. jurisdictional dismissals, or prosecutorial misconduct.) Double jeopardy applies in that instance.

I believe this is what he is betting on. It's still a pretty risky bet.
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That Anonymous Coward (profile), 10 Jul 2012 @ 11:04pm

Re:
So your all for one party of the adversarial process having control over how much they are allowed to pay for their defense? And you don't see a problem with it....

You obviously have missed that the US Judge has serious reservations about the case even being able to move forward.

Now there is the added attention to the fact they are applying criminal standards to civil charges which doesn't work.

Given much of the "evidence" against him seems to be sourced from the cartels, following their usual pattern the DoJ will twiddle their thumbs waiting for someone to call them back to support the claims for 50 million, and that call never comes. Then the DoJ will try to keep dragging it out in court, until it gets more press coverage and a Judge says wait a minute...

This is a gamble, but I doubt the DoJ wants to touch this right now. The case is a house of cards, and their actions have shown a desire to inflict damage on a company rather than gather evidence. They made claims to the Grand Jury that will never fly in a court of law and this will be coming home to roost.
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Anonymous Coward, 10 Jul 2012 @ 11:20pm

Re:
Wow are you for real?
"Honestly, if he feels he is innocent, he is going the right way here."
"he still faces a US legal system that is likely to choke on his case for the forseeable decade or so. "
The latter is dispicable, but the fact that you believe the latter and still prattle on that anyone innocent would walk into that deliberately suggests you are nuts or deeply dishonest.
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Anonymous Coward, 10 Jul 2012 @ 11:33pm

Re: Re:
"So your all for one party of the adversarial process having control over how much they are allowed to pay for their defense? And you don't see a problem with it...."

No, it's the sort of restriction in place to assure that the money isn't used for other purposes outside of the legal system. It is pretty normal in this sort of a situation. It wouldn't stop any work by the lawyers, but it would stop the money being diverted to maintain Kim's rather extravegent lifestyle.
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Anonymous Coward, 11 Jul 2012 @ 12:15am

Re: cutie
We need a report button on the account as well - spam bot is spammy
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Anonymous Coward, 11 Jul 2012 @ 12:21am

Shows he's confident enough that he'd win. He's just worried about being screwed by big content buying the government.
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Anonymous Coward, 11 Jul 2012 @ 12:21am

Re: Re:
I don't consider it prattling at all. Sooner or later, he will face the US justice system. Either now, either through extradition, or sometime in the future when he is stupid enough to appear in another country that has an extradition agreement with the US.

One choice does not negate the other. Fighting extradition in NZ doesn't make the case in the US disappear. It might make it possible for him to hide in NZ for as long as they will have him (and that is likely NOT very long, I suspect his residency will be reviewed and trashed), and he will still have to face US justice as well.

I think he (and his lawyers) woke up and realized that they don't have a choice.
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Anonymous Coward, 11 Jul 2012 @ 12:31am

I think the ultimate goal of the RIAA, MPAA, ect is to make sure Mega doesn't come back and to scare cyber lockers.
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Anonymous Coward, 11 Jul 2012 @ 12:34am

Re: Re: Re:
Based on what?

Every step has shown that NZ realizes the US case is non-existent, why would they then trash his residency?

As mentioned earlier, the US judges have been poking giant holes in the government's case.

Honestly, if they get a fair trial, then this will just speed up the whole thing because the US has no case.
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That One Guy (profile), 11 Jul 2012 @ 12:41am

Re:
Like say oh, shutting down his business without a trial, stealing a bunch of his property, freezing his accounts, treating him and his family like terrorists and sending in an assault team after them... honestly, they'd really have to work to top what they've already done.
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That One Guy (profile), 11 Jul 2012 @ 12:51am

Re:
Ah, but you just pointed out another reason why they might bite...

most evidence to date according to recent NZ decision.

Assuming they did accept, I'd imagine it wouldn't take them long to find a judge that would rule that the illegally obtained evidence was in fact able to be used, among a number of other things.

Keep in mind, the USG and it's corporate owners want him bad, and this whole fiasco has made them look all kinds of stupid, so if they have to bend, break or flat out make a few laws to convict and make an example out of him... well, at this point I very much wouldn't put it past them.
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That Anonymous Coward (profile), 11 Jul 2012 @ 1:26am

Re:
No they need to get him into a US court room so they can fire up a civil trial and claim kajillions of lost dollars that he owes them.

There are already like 2 pending civil cases filed against Mega by companies no one ever heard of. A judge put them on hold while this mess is getting sorted.

Cyberlockers are scary to the cartels because 6 strikes can't track it, so they needed to scare them away before the 6 strikes kickoff... which they keep missing. The RIAA had a serious reason in hoping to stop the Mega music sales platform. A nearly transparent sales system that only took 10% for itself and paid 90% directly to the artists... seems like artists would enjoy that much more than spending years trying to recoup on their loans...
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Anonymous Coward, 11 Jul 2012 @ 1:41am

Re: Re: Re:
You're full of it.
You say "if he's innocent" then prattle about stuff that applies whether or not he's innocent.
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Anonymous Coward, 11 Jul 2012 @ 1:58am

The US justice can promise him "fair trial" all they want. As long as he is on US soil, he can be sued in civil cases and that is the only reason to want him extradited. The US justice will take his offer, delay the case forever before it getting kicked out of court and let the companies tear him a death star in civil courts in the meanwhile. I think he is getting ripped economically by this case and wants it overwith as soon as possible.
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Hephaestus (profile), 11 Jul 2012 @ 4:04am

Re:
Since Napster the Record Labels have purposely and consciously killing off any music start ups that could compete with them. (read the report 'pdf') What they want is prevent or delay him from starting MegaBox. Hence the 2013 court date.
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Hephaestus (profile), 11 Jul 2012 @ 4:13am

Re:
A simple solution would be for him to find someone that the record labels couldn't go after and have him start MegaBox. Someone that if they went after it would cause such an uproar over their anti competitive behavior that it would make the evening news and perhaps change things. My suggestion at TorrentFreak was Steve Wozniak :)
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Niall (profile), 11 Jul 2012 @ 4:27am

Re: Re:
And this is someone who can afford (theoretically) to take things to appeal after appeal and keep it in the press. Not the usual small, helpless victim that the Cartels go for.
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Niall (profile), 11 Jul 2012 @ 4:29am

Re:
What are the effects if he is both appealing the extradition and voluntarily going to the US - can he then choose to leave any time he wants? What happens if he then goes to a third country?
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Anonymous Coward, 11 Jul 2012 @ 4:49am

Re:
Going to the US isn't a good way to get the case over with. Remember, one of Hollywood's favorite tactics is to sue over and over again whether they have legal standing or not, bankrupting the competition through sheer arbitrary legal fees.
If I were Dotcom, I'd stay on my home turf, and either try to get the deadline put back to August or force the US to foot the bills for the additional 5 months.
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RD, 11 Jul 2012 @ 5:36am

Re:
"What Kim isn't understanding is that, even if he does skip around the nearly year long delay in New Zeland, he still faces a US legal system that is likely to choke on his case for the forseeable decade or so. I don't expect this one to run any faster than the Jammie Thomas or Joel Tenebaum cases have gone, and each of those are running into the years. With appeals, third party interventions, civil suits, prolonged discovery, and all that stuff, the case would likely take years before it truly got heard - and then years of more appeals, possibly all the way up the chain to SCOTUS if the issues seem particularly relevant.

He needs to accept that he is screwed and work from there."

Oh yes, and these are just wonderful reasons why he should *voluntarily* put himself in the hands of the US govt instead of fighting extradition.

You destroy your own argument here.
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Anonymous Coward, 11 Jul 2012 @ 5:46am

Re: Re:
The Chinese government.
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Anonymous Coward, 11 Jul 2012 @ 6:21am

Re: Re: Re:
"Fighting extradition in NZ doesn't make the case in the US disappear. It might make it possible for him to hide in NZ for as long as they will have him (and that is likely NOT very long, I suspect his residency will be reviewed and trashed), and he will still have to face US justice as well."

Roman Polanski was actually found guilty (which Dotcom has NOT), fled the US, and has lived high on the hog in Europe ever since. (and Polanski's criminal conviction was for statutory rape!)
When does Polanski "face US justice" as you call it?
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Anonymous Coward, 11 Jul 2012 @ 6:32am

Re: Re: Re: Re:
"Every step has shown that NZ realizes the US case is non-existent, why would they then trash his residency?"

Even if, the extradition process isn't a trial of innocent or guilt, only that there extradition request is reasonable and valid. I am confident that the US has at least enough evidence to satisfy the requirements for extradition. NZ would find itself facing a real issue if they deny the extradition without serious merit.

You need to go look at what extradition entails to understand why it's nowhere near the same level as a conviction, and to see why NZ has few alternatives in the deal.
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Josh in CharlotteNC (profile), 11 Jul 2012 @ 7:05am

Re: Re: Re: Re: Re:
I am confident that the US has at least enough evidence to satisfy the requirements for extradition.

How can you be confident of that when they have failed to show any evidence at all? Or when they have said they want the evidence destroyed? Or when they have shown that they don't seem to understand the laws they are trying to use? Or basically when they have been completely incompetent every step of the way?
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Hephaestus (profile), 11 Jul 2012 @ 7:05am

Re: Re: Re:
Nice!! I was looking at it from the perspective of, who they wouldn't go after from a publicity stand point.
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Anonymous Coward, 11 Jul 2012 @ 7:08am

Re: Re:
Woz is probably still on Aplles payroll...which may mean a no compete against ITunes
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Anonymous Coward, 11 Jul 2012 @ 7:08am

Re: Re:
Woz is probably still on Apples payroll...which may mean a no compete against ITunes
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Anonymous Coward, 11 Jul 2012 @ 7:29am

Re: Re: Re:
Wouldn't take much to add file locker capabilities to iTunes though, although it would piss off the labels.
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Beta (profile), 11 Jul 2012 @ 7:32am

Re: Re: Re:
I would think the DOJ would want him to blow his money on extravagances; it makes the public dislike him, and every dollar he wastes is a dollar he can't spend on lawyers.

(Unless, you know, the lawyers are moonlighting as strippers, but you know what I mean.)
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PRMan, 11 Jul 2012 @ 7:53am

Re: Re: Re: Re:
Never, because Hollywood likes him. Who cares about some young girl he raped?
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Anonymous Coward, 11 Jul 2012 @ 8:07am

Re: Re: Re: Re: Re: Re:
I believe the correct response is, "NANANANANANANANNANANANANANANANANANANNANA.... I can't hear you..."
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ltlw0lf (profile), 11 Jul 2012 @ 8:14am

Re: Re: Re: Re:
When does Polanski "face US justice" as you call it?

Drat, PRMan beat me to it...

As much as I hate to agree with Anonymous Coward on this one, because I don't, but he does have a point that those in power (mainly the *AAs,) deem that running a corporation that competes with them is more dangerous than statutory rape.
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That One Guy (profile), 11 Jul 2012 @ 8:37am

Re: Re: Re:
Hence the reason they froze his accounts in the first wave. While he may technically have more than enough funds to cover a defense spanning a long, long time, it doesn't do him any good at all if he can't touch a dime of it.

As well, in this case I'd say that they would want to drag this on as long as possible, because as long as it's tied up in court, MU is offline, and the costs for the servers goes up and up.
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Loki, 11 Jul 2012 @ 9:08am

Re: Re:
Agreed. While the DOJ, might consider calling his bluff, in this case they are simple the lackeys of the entertainment industry. And the last thing the major labels and studios want is for Dotcom and his co-defendants to have access to funds "support support themselves and their families because to them that means the possibility of being able to launch Megabox, and stopping or delaying that launch as long as humanly possible is what this fight is really all about.
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The Groove Tiger (profile), 11 Jul 2012 @ 9:23am

Re:
Nice argument. To sum up:

"If he's guilty, he's fucked. If he's innocent, he's fucked. But by allowing himself to get fucked, he's doing the right thing."
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Anonymous Coward, 11 Jul 2012 @ 10:43am

Re: Re:
*** Since Napster the Record Labels have purposely and consciously killing off any music start ups that could compete with them. ***

it's only competition if the "start-ups" are actually paying artists... which, they're not...
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Anonymous Coward, 11 Jul 2012 @ 11:53am

Re: Re: Re:
Spotify? Oh right, low payments to you are the same as none.

Megabox? Well, you'll just have to wait and see, won't we?
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Al Bert (profile), 11 Jul 2012 @ 12:10pm

Re: Ballsy move, but he'll lose the home turf advantage...
Bingo. There's not much point in expecting fair and just dealings with someone who has been trying to reach over every measure put in place to ensure due process.
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JJJoseph (profile), 11 Jul 2012 @ 10:26pm

If Kim thinks this is a good idea . . .
If Kim thinks this is a good idea, he'd better invite Conrad Black for lunch. Conrad ran into the DoJ and they ambushed him with an "honest services" fraud charge and an "obstruction of justice" charge. DoJ can convict anybody on these open-ended charges, and Black was jailed for 6 years. The America federal justice system is so corrupt that DoJ can lock up anybody they set their sights on. There's no escape. Black won his appeals, yet they still locked him up.
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Anonymous Coward, 12 Jul 2012 @ 2:54am

Re: Re: Re:
They offered. The startups offered the labels blank cheques allowing them to claim any percentage of profits for the artists. The labels refused.

If you didn't have your head stuck up the labels' ass, Mr. I-have-nothing-to-do-with-labels-but-will-fight-to-the-death-to-defend-them, you'd have known that, googlypants.
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Niall (profile), 12 Jul 2012 @ 4:28am

Re: Re: Re: Re:
Now for that, I would actually start to use/support iTunes. Especially if it p*ssed off the labels.
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Niall (profile), 12 Jul 2012 @ 4:29am

Re: Re: Re: Re: Re:
'Real issue' - like what? The US will send drones over? Stop selling movies? Throw a tantrum?
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Niall (profile), 12 Jul 2012 @ 4:31am

Re: Re: Re: Re:
Presumably after a while he could challenge the financial seizure? Or am I just being naive?
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That One Guy (profile), 12 Jul 2012 @ 4:43am

Re: Re: Re: Re: Re:
Umm, it's the US, so yeah, decidedly misplaced optimism in the legal system there.
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JJJoseph (profile), 12 Jul 2012 @ 2:15pm

Re: challenging a financial seizure
You're hopelessly naive! DoJ can seize and keep anything by alleging RICO or "dishonest services". They're totally unprincipled and corrupt. Conrad Black is still trying to get his assets back even after being acquitted by the SCOTUS.
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