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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1360
INTEREST,
Defendant.
------------------------CATO INSTITUTE; INSTITUTE FOR JUSTICE; NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS,
Amici Supporting Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam OGrady, District
Judge. (1:14-cv-00969-LO-MSN)
Argued:
Decided:
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Before GREGORY,
Judges.
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Chief
Judge,
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and
DUNCAN
and
FLOYD,
Circuit
ARGUED:
Michael S. Elkin, WINSTON & STRAWN LLP, New York, New
York, for Appellants.
Jay V. Prabhu, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF:
Craig
C.
Reilly,
Alexandria,
Virginia,
for
Appellants;
Robb C. Adkins, San Francisco, California, Steffen N. Johnson,
Christopher E. Mills, WINSTON & STRAWN LLP, Washington,
D.C., for
Appellant
Megaupload
Limited;
David
B.
Smith,
SMITH & ZIMMERMAN, PLLC, Alexandria, Virginia, for Appellants
Julius
Bencko
and
Sven
Echternach;
Ira
P.
Rothken,
Jared R. Smith,
ROTHKEN
LAW
FIRM,
Novato,
California,
William A. Burck, Derek L. Shaffer, Stephen M. Hauss, QUINN
EMANUEL
URQUHART
&
SULLIVAN,
Washington,
D.C.,
for
Appellants Kim Dotcom and Megaupload Limited.
Dana J. Boente,
United States Attorney, G. Wingate Grant, Assistant United
States Attorney, Karen L. Taylor, Assistant United States
Attorney, Jasmine H. Yoon, Assistant United States Attorney,
Allison B. Ickovic, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia;
Ryan K. Dickey, Brian L. Levine, Senior Counsel, Computer Crime
& Intellectual Property Section, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Darpana Sheth,
INSTITUTE FOR JUSTICE, Arlington, Virginia, Thomas K. Maher,
NORTH CAROLINA OFFICE OF INDIGENT DEFENSE SERVICES, Durham,
North Carolina, Ilya Shapiro, CATO INSTITUTE, Washington, D.C.,
for Amici Cato Institute, Institute for Justice, and National
Association of Criminal Defense Lawyers.
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of
default
forfeiture
judgment
action
against
for
the
funds
government
deposited
in
entered
disentitle
defendant
after
the
the
claimants
property
under
government
from
the
federal
civil
claimants
Default judgment
successfully
defending
the
in
their
fugitive
moved
claims
to
to
the
disentitlement
in
foreign
countries,
that
fugitive
disentitlement
I.
On January 5, 2012, a grand jury returned an indictment
against many of the claimants in this action, charging them with
criminal
estimated
copyright
harm
$500,000,000
Govt
Br.
4.
and
to
infringement
copyright
reported
The
and
money
holders
income
claimants
in
well
excess
alleged
laundering
of
in
with
excess
of
$175,000,000.
copyright
infringement
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the
illegal
copyrighted
movies,
reproduction
software,
and
television
distribution
programs,
and
of
music.
the
indictment,
the
district
court
issued
restraining orders for assets in New Zealand and Hong Kong where
most of the remaining identified proceeds resided.
The High
New
New
Zealand
restraining
orders
could
only
remain
registered for two years, after which they could be extended for
up to one year.
froze the assets in the lead up to this action, the New Zealand
4
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expenses.
Some
of
these
have
been
very
substantial,
of
the
claimants
in
this
case
filed
their
claims
claimants
claims
pursuant
to
28
fugitive
disentitlement
statute.
district
court
the
granted
motion
U.S.C.
On
to
2466,
February
strike,
the
27,
federal
2015,
having
the
allowed
the
merits
of
the
case.
The
government
then
moved
for
II.
The
claimants
first
challenge
to
the
district
court
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have
sufficient
minimum
contacts
with
the
defendant
property.
A.
The district court asserted in rem jurisdiction pursuant to
28 U.S.C. 1355(b)(2). 1
For convenience,
reproduced here:
the
relevant
portions
of
1355
are
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the
The
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Under
actual
or
the
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traditional
constructive
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paradigm,
control
over
the
the
court
res
must
when
an
in
have
rem
$1.67 Million, 513 F.3d 991, 996 (9th Cir. 2008) (quoting United
States v. James Daniel Good Real Prop., 510 U.S. 43, 58 (1993)).
The question is whether 1355particularly the 1992 amendments
which added subsections (b) and (d), authorizing district courts
to
issue
process
against
property
outside
their
districts
In the
that
property.
Id.
at
151
(Section
legal
control
jurisdiction
but
over
property
inside
the
1355(b)
addresses
United
outside
States,
the
the
Meza
interpretation
fails
Id. at 152.
closer
textual
analysis
and
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jurisdiction
(b).
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over
1355(d)
1355(d),
forfeiture
(emphasis
therefore,
[s]ection
1355(b)
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action
pursuant
added).
renders
the
addresses
The
Meza
venue
to
subsection
plain
courts
meaning
of
finding
that
impossiblecourts
may
Although it
nature,
action
rather
or
than
proceeding
merely
may
be
saying
brought
that
in
those
Meza
courts
interpretation,
urged
by
the
claimants
Laundering
Improvements
explanatory
statement
intended
to
provide
Act,
Senator
indicating
the
DAmato
that
federal
included
subsection
district
(b)
courts
an
was
with
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Cong.
Rec.
DAmato).
S16640-01
(Nov.
13,
1992)
(statement
of
Sen.
of
affirming
the
district
courts
interpretation
of
1355.
Because the plain meaning of the statutory text and the
legislative
1355(b)
history
is
both
support
jurisdictional,
we
finding
affirm
the
that
28
U.S.C.
district
courts
The
court noted that the civil complaint and the related criminal
indictment
allege
that
there
was
conspiracy
between
the
indicted parties and that they used over 525 servers located
within the Eastern District of Virginia.
The
10
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claimants
order
next
amounts
argue
that
to
nonbinding
the
district
courts
advisory
opinion
of
admiralty
law
which
usually
in
rem
R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999)
[hereinafter Titanic I], and R.M.S. Titanic, Inc. v. The Wrecked
& Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006) [hereinafter
Titanic II].
custody and
control of
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This
is
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essentially
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the
same
lack-of-control
attack
claimants
principles
law.
of
Both
first
admiralty
Titanic
argument
law
and
for
fails
because
principles
Titanic
II
it
confuses
of
constitutional
describe
jurisdictional
here
the
res
resides
in
two
sovereign
nations
that
are
the cases
speak
limits
explicitly
admiralty
courts
in
terms
pursuant
of
to
the
the
jurisdictional
common
law
of
the
of
seas.
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and
law
. . .
distinctions
provides
that
are
an
established
practically
network
suited
to
of
the
in
admiralty,
United
States
v.
All
Funds
in
the
action
here,
and
we
have
just
little
doubt
that
traditional
rules
of
in
rem
jurisdiction
cooperation
(or
lack
thereof)
of
foreign
As such,
nations
in
effectiveness
of
the
forfeiture
13
orders
of
the
district
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Id. at
27.
Finally,
on
this
point,
we
note
that
admiralty
cases
involve
difficult
questions
of
previously
owned
171 F.3d
we
turn
to
the
question
of
justiciability
which
the
courts
of
New
Zealand
and
Hong
Kong
rather
than
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113-14
(1948).
But
this
principle
addresses
itself
to
L.
Assets
251,
Under
297-98
28
(2004)
U.S.C.
1355(b)(2),
(collecting
numerous
31
Am.
cases,
J.
all
By showing that
the res was placed in custody in New Zealand and Hong Kong based
on the district courts order, JA 468-69, the government has
demonstrated that it is likely, rather than speculative, that
these
courts
States.
will
honor
forfeiture
order
from
the
United
15
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The
forfeiture
same
function
occurred,
as
the
1355(b)(1)(A),
minimum
contacts
serve[d]
test
and
much
the
therefore
While we disagree
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sufficient
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contacts
to
meet
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due
process,
in
this
case,
is
affirmed.
While
Congress
jurisdiction
of
the
has
substantial
federal
courts,
power
the
to
Due
set
Process
the
Clause
the
Supreme
Court
held
that
all
assertions
of
state-court
Courts
defendant,
insight
the
was
forum,
and
that
the
the
relationship
litigation,
rather
among
the
than
the
Id. at
actions
against
property,
concluding
that
in
jurisdiction
must
be
sufficient
to
justify
exercising
Id. at
that
might
be
viewed
as
the
17
inverse
of
what
1355(b)
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contemplates:
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invoke
quasi
shareholders
in
rem
derivative
jurisdiction
suit.
Id.
at
over
213.
the
underlying
But
1355(b)
to
Shaffer,
is
central
to
the
forfeiture
action)
proceed
traditional,
in
this
case,
state-based
we
assume
minimum
without
contacts
deciding
approach
that
a
is
Applying
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that
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test
we
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find
that
the
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contacts
are
sufficient
and
due
analyze
factors
the
minimum
commonly
jurisdiction:
purposefully
activities
in
used
(1)
availed
the
contacts
for
the
determining
extent
itself
state;
question
of
(2)
to
which
the
whether
by
specific
the
privilege
the
applying
the
personal
defendant
of
has
conducting
plaintiffs
claims
the
exercise
constitutionally
of
personal
reasonable.
jurisdiction
Carefirst
of
Md.,
would
Inc.
be
v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397 (4th Cir.
2003).
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dispute,
that
these
servers
were
operated
and
closely
We find that
claimants
repeatedly
argue,
dismissed
as
however,
de
minimis
that
the
this
Court
level
of
has
contact
Carefirst,
334
F.3d
at
402).
Besides
not
being
case,
Christian
Science
Board
of
Directors
of
First
deciding
the
effect
an
in-forum
20
server
might
have
on
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was
operated
Carolina.
therefore
fails
Carefirst
also
in
Id.
to
California,
at
217
adequately
does
not
not
n.9.
capture
purport
to
the
forum
state
The
Carefirst
the
impact
state
opinion
of
rule
of
of
Nolan.
general
server
might
have
on
the
jurisdictional
question.
of
CPCs
domain
names
and
rented
CPC
space
on
its
of
representing
servers,
an
closely
investment
controlled
of
tens
of
by
It involves
the
millions
claimants,
of
dollars.
Mega
Conspiracy
was
file-sharing
scheme
in
The
which
The
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See
The
action
before
this
Court
arises
from
the
the
alleged
third
factor,
constitutional
reasonableness,
is
also
on
the
defendant,
the
forum
States
interest
in
and
effective
relief,
the
interstate
judicial
fundamental
substantive
22
social
policies.
Burger
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King
Doc: 62
Corp.
v.
World-Wide
(1980))
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Rudzewicz,
Volkswagen
(internal
471
Corp.
quotation
Pg: 23 of 61
U.S.
v.
462,
477
Woodson,
marks
(1985)
444
omitted).
(quoting
U.S.
286,
This
factor
292
is
inconvenient
disadvantage
in
that
party
comparison
to
unfairly
his
is
opponent.
at
Id.
severe
at
478
The claimants do
not argue that Virginia is any less convenient than any other
available forum, and we perceive no evidence that the government
filed where it did for any untoward purpose.
III.
The district court ordered the claimants disentitled from
defending claims to the defendant property pursuant to the Civil
Asset Forfeiture Reform Act of 2000 (CAFRA), 28 U.S.C. 2466.
The effect of the order was to prevent the claimants from using
the U.S. courts to defend their claims to the property.
claimants
violates
stripping
argue
the
that
Due
them
of
this
Process
their
application
Clause
right
to
of
be
of
the
28
Fifth
heard.
U.S.C.
2466
Amendment
The
The
by
claimants
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Cir.
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2004).
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The
district
Pg: 24 of 61
court
effectively
adopted
the
Fugitive
allowing
disentitlement
appellate
courts
began
to
as
dismiss
judicial
appeals
doctrine
from
criminal
failure
disentitles
the
defendant
to
call
upon
the
courts
of
appeals
were
split
on
the
the
See
Prior to
question
of
forfeiture
suit
to
enter
judgment
against
claimant
F.3d
1151
disentitlement
(7th
Cir.
to
civil
1994)
(declining
forfeiture);
and
to
extend
United
fugitive
States
$83,320 in U.S. Currency, 682 F.2d 573 (6th Cir. 1982) (same)).
24
v.
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use
of
disentitlement
to
strike
civil
forfeiture
over
the
Id.
at 828.
interests
presented
by
the
disentitled
the
District
Court
by
Degens
absence
from
the
by
interests.
spectacle
Degen
and
Id.
It
criminal
of
others
also
were
both
acknowledge[d]
defendant
substantial
disquiet
reposing
in
at
the
Switzerland,
beyond the reach of our criminal courts, while at the same time
mailing
papers
to
the
court
in
was
even
more
concerned
a
Id.
that
related
civil
action
and
free
recourse
to
the necessity giving rise to its exercise and that [t]here was
no necessity to justify the rule of disentitlement in [that]
case.
Id. at 829.
25
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In
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the
course
acknowledged
that
of
the
Pg: 26 of 61
that
opinion,
answer
might
the
be
Supreme
different
if
Id. at 828.
Court
such
expressly
left
constitutionality.
open
Id.
the
question
of
Court
civil
The
statutes
claimants
argue
that
constitutionally
authorized
their
claims
property
action,
regardless
of
to
the
disentitle
against
any
district
the
statute
court
them
from
governments
passed
by
was
not
defending
forfeiture
Congress.
They
1395,
1402
(4th
Cir.
1995)
(quotations
omitted),
that
begin,
disentitlement
much
of
Degens
unconstitutional
reasoning
centered
declaring
on
judicial
balance-of-powers
2466.
The
Degen
Court
noted
that
[p]rinciples
of
at
[inherent
820
(emphasis
judicial]
added),
powers
must
26
and
be
that
[t]he
delimited
with
extent
care,
of
for
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there
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is
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danger
of
Pg: 27 of 61
overreaching
when
one
branch
of
the
went
on
Executive
to
expressly
involved,
the
convey
that
analysis
were
would
Congress
differ:
or
In
the
many
Id.
such instance.
But
more
to
the
point,
the
claimants
argument
fails
not
mean
that
the
defendant
in
every
civil
case
[must]
Boddie v. Connecticut,
Good,
rule
U.S.
that
at
48
(Our
individuals
must
precedents
receive
establish
notice
and
the
an
partys
failure
to
take
27
advantage
of
that
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The
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government
points
out
Pg: 28 of 61
that
courts
regularly
impose
They declined to
do so.
While the claimants correctly respond that 2466 is no
mere procedural requirement, their argument actually underscores
the
justification
for
disentitlement
pursuant
to
statute.
is
Id. at 203-04.
that
refusal
to
and
defend
against
See
And
28
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the Supreme Court has long approved the power of the legislature
to authorize dismissal on the creation of such a presumption.
Id.
The distinction is made clearer by reviewing one of two
nineteenth-century cases on which the claimants unsuccessfully
rely, Hovey v. Elliott, 167 U.S. 409 (1897). 4
it held the
pursue
and
render
arbitrarily
and
oppression.
Id. at 413-14.
But
Id. at
in
becoming
Hammond
justice
rather
instrument[s]
Packing
the
Court
of
than
acting
wrong
distinguished
and
the
29
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from
the
suppression
or
failure
to
produce
the
proof
invocation
of
legal
presumption,
or
what
is
the
same
First,
discretion,
see
2466(a)
(using
may
instead
of
expensive,
underlying
controversy,
intransigence
with
it
argued
cannot
be
regard
that
to
the
they
were
Cf. United States v. Eng, 951 F.2d 461, 466 (2d Cir.
30
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claimants
argue.
In
that
decision,
the
Supreme
Court
[the
party]
is
fugitive
from,
or
otherwise
is
this
at
case,
issue
the
is
claimants
being
readily
spent
rapidly,
concede
despite
that
the
numerous
Cf.
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from
most
those
in
Degen,
notably
in
that
the
property
is
this
time.
But
these
differences
help
demonstrate
that
2466
predicates
disentitlement
on
an
allowable
Process
Clause
of
the
Fifth
Amendment
and
affirm
the
IV.
Having established the constitutionality of 2466, we now
proceed to review its application in this case.
The claimants
32
We
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as
person
outside
whose
the
sole
United
or
States
principal
is
to
reason
avoid
for
criminal
impression
in
this
Court.
We
review
questions
of
leaves
the
jurisdiction
of
the
33
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826 (citing United States v. Technodyne LLC, 753 F.3d 368, 38384
(2d
Cir.
2014);
United
States
v.
$671,160.00
in
U.S.
starting
point
for
any
issue
of
statutory
We
that
the
conduct
it
modifies
must
have
been
committed
United States
v. Blount, 364 F.3d 173, 178 (4th Cir. 2004), vacated on other
grounds, Blount v. United States, 543 U.S. 1105 (2005).
In
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Intent,
(defining
the
term
Blacks
to
Law
mean
Dictionary
[t]he
(10th
intent
to
Id.; cf.
ed.
2014)
accomplish
the
intent
also
favors
specific
intent
reason
for
persons
absence
from
the
United
in
qualifying
Collazos,
in
all
Subpart
four
other
also
applies
respects
for
to
persons
disentitlement,
who,
368 F.3d
enter
and
those
refusing
to
re-enter,
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in
our
sister
circuits
question.
who
have
addressed
the
the
court
held
that
the
36
district
court
erred
in
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that the courts emphasis placed on the word the shows it was
adopting a sole purpose standard.
this interpretation.
simply
demonstrate
the
court
was
equating
the
intent
as likely that the Soulbury court meant that the government must
show the claimant would enter the country and face prosecution
if he did not specifically wish to avoid prosecution.
in
Soulbury
the
governments
only
mens
rea
Second,
evidence
was
evidence
avoiding
was
prosecution
insufficient
was
even
to
a
show
reason
Id. at 129-30.
conclusively
that
the
that
claimant
Id. at 132.
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court
had
found
the
claimants
poor
health
irrelevant
as
Id. at 665.
The
order
to
avoid
(emphasis added).
criminal
prosecution.
Id.
at
665-66
that while poor health might be a reason for his absence, the
government might still prove that avoiding prosecution motivated
his absence, making him a fugitive subject to disentitlement,
and so remanded the case for further proceedings.
Id. at 666.
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claimants
intent
is
factual
predicate
to
the
legal
finding
of
fact,
the
standard
of
review
is
clearly
the
district
erroneous).
The
claimants
principal
argument
is
that
extradition
in
finding
specific
intent.
But
the
weight
favors
of
finding
inquiry.
persuasive
authority
opposition
to
on
this
extradition
question
relevant
And
clearly
to
the
extradition.
(emphasis
added));
United
States
v.
opposing
precisely
extradition
the
type
of
and
that
situation
this
that
conduct
Congress
represented
intended
to
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logical
conclusion
that
three-year,
multi-
For
example,
Kim
Dotcom
posted
message
to
No need for
found
that
this,
combined
with
their
Id.
The
opposition
to
to
claimants
were
show
shown
an
to
intent
to
have
made
40
avoid
prosecution.
statements
that
they
Other
were
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avoiding
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international
Pg: 41 of 61
travel
to
reduce
their
risk
of
Id. at 829.
to
rejected
come
to
their
the
United
argument
for
States.
As
sole
intent
we
have
already
standard,
the
utterly
unpersuasive
because
they
do
not
contradict
the
In fact, their
any
claimant
could
defeat
disentitlement
by
we
address
the
evidence
of
intent
for
two
and
that
Br.
35
this
is
his
(internal
reason
for
quotations
remaining
omitted).
there.
This
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demonstrating
doubtful,
that
the
particularly
Pg: 42 of 61
scenario
he
because
described
his
trouble
was
highly
with
German
States.
attorney
whose
admitted
that
Id.
advice
his
at
829-31.
Echternach
advice
is
The
is
court
noted
following
predicated
on
his
has
that
the
all
but
desire,
as
Id. at 831.
Moreover,
Id. at 830.
from
Portugal
prosecution.
by
Portuguese
national,
to
avoid
here in this post commie state . . . the sooner the USA will do
some steps the soner [sic] they will let me go.
(quoting Bencko declaration).
Id. at 831
United
discretion
States.
in
finding
The
district
these
court
statements
did
taken
not
abuse
together
its
showed
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V.
The claimants make two arguments regarding the effect of
international law on the application of 2466, which we now
address.
See
United
States
v.
Al-Hamdi,
356
F.3d
564,
569
(4th
Cir.
2004).
First, they argue that disentitling New Zealand residents
violates
the
Charming
Betsy
canon
of
interpretation
which
1090
Schooner
(4th
Betsy,
inconsistent
with
Cir.
6
1995)
U.S.
the
(citing
Murray
118
(1804)),
64,
United
Nations
v.
The
Charming
because
Convention
it
is
Against
argue
that
exercising
their
rights
violates
the
disentitlement
under
multinational
New
treaty
prevents
Zealand
to
which
law
both
them
and
the
The
from
thereby
United
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to
pursue
meanwhile
subjecting
their
rights
them
to
in
New
default
Zealand
judgment
courts,
in
civil
for
occurring
America
in
the
claimants
does
not
with
mean
respect
they
are
to
litigation
being
treated
The
request
that
their
governments
enforcement
of
restraining
JA 2199-200.
The
would
be
unconstitutional
is,
obviously,
44
not
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pursuant
to
2466
because
the
Mutual
Legal
Assistance Treaty between Germany and the United States (U.S.German MLAT) prohibits any penalty or coercive measure for
failure
to
answer
summons.
See
The
German
Mutual
Legal
Assistance Treaty, Ger.-U.S., Oct. 18, 2009, T.I.A.S. No. 091018 [hereinafter MLAT].
As
such,
claimants
argue
that
the
Supremacy
Clause
See Vorhees v.
Fischer & Krecke, 697 F.2d 574, 575-76 (4th Cir. 1983).
The
district
court
expressed
serious
doubts
that
this
833.
title
suggests,
making
the
the
U.S.-German
MLAT
international
evidentiary
and
two
countries.
It
is
not
adopts
witness
framework
requests
concerned
with
for
or
example,
other
transferring
purposes,
MLAT,
persons
Art.
As its
in
1(2)5.,
for
between
criminal
The treaty
custody
so
if
for
the
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not restrict how the United States may act towards a criminal
fugitive, there is no need to construe 2466 consistent with
its provisions, and the Charming Betsy canon is inapplicable.
We therefore affirm the district courts decision.
VI.
The claimants final argument is that the district court
erred in striking the marital claims to the defendant property
asserted
by
Mona
Dotcom,
the
estranged
wife
of
claimant
Kim
Dotcom.
this
litigation,
concluding
she
lacked
standing.
The
claimants argue this was error because Mrs. Dotcom only needs to
show
colorable
interest
in
the
property
(based
on
New
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assert
claim
to
the
marital
property
and
creates
also
recognizes
this
status
as
establishing
an
actual
III
standing
requires
plaintiff
to
show
an
district
court
found
after
thorough
analysis
of
As
New
for
division
of
the
marital
property
establishes
It does not.
district court correctly found Mrs. Dotcom did not even meet the
lower of the two standards.
47
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Actual
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legal
interests
Pg: 48 of 61
under
the
PRA
vest
only
in
the
(N.Z.)
Proceeds
(Hayward
Recovery
I).
Act
While
(2009)
the
(CPRA),
New
Zealand
which
Criminal
controls
asset
III
definition
of
interest
which
controls
standing.
That is, New Zealand law determines the extent of Mrs. Dotcoms
interest in the property, and Article III determines whether
that interest is sufficient to create standing.
The district
Article
III.
JA
1995
(citing
United
States
v.
district
had
court
neither
concluded,
adjudicated
rightly,
their
that
rights
to
because
the
the
marital
that
she
owns
the
property.
Id.
The
claimants
First,
they argue that a New Zealand court declared that Mrs. Dotcom
48
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the
opinion
was
explicitly
nonprecedential
and
that
it
definition
hypothetical
of
claims
to
marital
such
property
property.
interest
It
did
to
include
notit
very
the
district
courts
reasoning
persuasive,
we
VII.
For the foregoing reasons, the district court opinion is
affirmed in full.
AFFIRMED
49
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outside
of
the
United
Article
the
IIIs
exercise
States--from
defending
the
prohibition
against
of
jurisdiction
in
rem
advisory
over
opinions
a
res,
I.
I
agree
with
the
jurisdictional statute.
majority
that
28
U.S.C.
1355
is
1355
Congress hoped
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28
U.S.C.
original
1355(a),
jurisdiction
(b)(2)
over
(providing
forfeiture
district
actions
courts
concerning
A congressional grant
of
however,
jurisdiction
to
the
courts
remains,
subject
to
the
ruling
of
the
district
court,
and
to
My
to
the
and
controversies.
See
U.S.
Const.
art.
III,
2.
51
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Flast,
one
commentator
pursuant
to
cited
by
1355(b)(2)
related constitutional
the
majority
implicate
justiciability
two
notes,
cases
distinct
but
requirements--bindingness
and redressability.
Forfeiture
Constitution:
and
the
The
Limits
of
Forfeiture
In my view, bindingness
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II.
The opinions of federal courts must be final and binding on
the parties.
of
the
Constitution,
may
not
lawfully
be
revised,
of
Hayburns
Wilson
Case,
and
Blair,
Dall.
409,
JJ.,
and
410
n*
(1792)
Peters,
D.J.)
advisory
opinion
prohibition
is
founded
on
the
principle that federal courts may only issue judgments that are
53
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a
not
definitive
be
adjudication
subject
to
of
revision
by
disputed
some
right
that
and
more
other
of
courts
judgment
by
some
other
and
The
more
in
this
action--the
res--is
outside
of
the
The
United
Absent
54
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res because the fate of the res is ultimately not in the hands
of the district court.
The
the res and with the authority vested in them by their own
sovereigns,
remain
free
to
revise,
overturn,
or
refuse
The decision
more
hierarchy.
authoritative
agency
outside
of
the
Article
III
hypothetical.
As
the
government
notes,
[d]espite
the
Govts Br.
order from the district court, New Zealand courts granted Dotcom
monthly releases of $135,000 for living expenses.
Id. at n.5.
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J.A. 1982.
valid
forfeiture
order,
the
fugitives
property
may
In an in rem
absent
control
of
the
res.
Where,
as
here,
foreign
rem
forfeiture
order
by
district
court
constitutes
III.
Our own precedent recognizes the Article III limits of in
rem jurisdiction.
Titanic decisions.
(4th Cir. 1999) (Titanic I); R.M.S. Titanic, Inc. v. The Wrecked
& Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006) (Titanic II).
The
Titanic
cases
involved
disputes
concerning
the
law
of
However, I
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part ways with the majority because I read the Titanic cases to
contain principles both of admiralty law and of constitutional
law.
What makes in rem actions problematic from an Article III
standpoint is that judgments in them operate against anyone in
the world claiming against that property.
at 957.
property.
Id.
Only
if
the
court
has
exclusive
are
added).
binding
When,
against
as
the
here,
world.
the
res
Id.
is
not
at
964
in
the
(emphasis
courts
possession, the court may not adjudicate rights to the res and
effectively bind others who may have possession.
Consequently,
Id.
(citation
omitted).
In
rem
given
effect
sovereignty.
to
property
Id. at 966.
beyond
nations
boundaries
of
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Our
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decision
in
Titanic
Pg: 58 of 61
emphasizes
the
importance
of
In Titanic I, we
limits
exclusiveness
of
of
any
any
[in
nation.
rem]
Thus,
order
could
although
the
legitimately
be
court
could,
nonetheless,
exercise
an
imperfect
or
Id. at 967.
limits
the
of
limits
another
of
sovereign.
constructive
In
in
Titanic
rem
II
we
jurisdiction
rem
jurisdiction
over
property
within
the
58
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Id.
Doc: 62
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Pg: 59 of 61
this case.
The majority is correct that the Titanic cases applied the
traditional, admiralty-based law of in rem jurisdiction and is
also correct that 1355 attempted to alter that traditional
law.
Constitutions
courts
be
binding
requirement
on
the
that
judgments
parties.
by
Needless
Article
to
say,
III
this
possible
cooperation
of
the
foreign
sovereign
is
place
on
that
variable.
Unlike
the
question
of
articulated
bindingness
as
59
an
essential
requirement
of
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at
104-05.
presidential
By
approval
statute,
such
and
order
the
orders
in
Id. at 110-11.
333
were
subject
question
had
to
been
Id. at 113.
vested
in
courts
by
the
Judiciary
Article
of
the
Id.
sovereign
has
subject
to
binding
acted
later
on
the
cooperatively,
review
or
60
parties
the
where
U.S.
alteration
the
foreign
judgment
remains
by
[foreign]
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administrative
action
and
Pg: 61 of 61
its
bindingness
remains--
IV.
The district court in this case did not have control of the
res.
61