New Seizures and Charges in MegaUpload Case

What do prosecutors do when they realize they've charged a crime they can't prove? Come up with a new charge.

Wayne Tempero, Chief Security Officer for Kim DotCom, was charged with illegal possession of a firearm after the raid on Kim DotCom's compound. The prosecutors said the gun was unlicensed. Tempero has insisted he had a license for the shotgun, as well as for another firearm found on the premises.

Tempero appeared in court today on the unlawful possession of firearms charge and prosecutors dismissed it. But they proceeded to file two new charges, each charging possession of a firearm for unlawful purposes.

When they want you, if they can't get you one way, they just try another. [More...]

Also yesterday, Kim Dotcom's lawyers appeared in court to argue against the restraining order on his assets. It doesn't seem like they made much headway because today, New Zealand's Official Assignee, who is in charge of seized assets, confirmed his staff went out this morning to seize more property: the house adjacent to the mansion, which Kim DotCom bought in December, just weeks before his arrest, another car and jewelery.

Mrs. DotCom, who is 7 months pregnant with twins, and the couple's other three children, have been living in the adjacent house since the raid. At least the Official Assignee says they won't be evicted and can remain pending the outcome of the seizure proceedings.

New Zealand is not charging Kim DotCom with any crimes. This is all being done at the behest of the FBI and the U.S. extradition request. New Zealand is just helping out pursuant to a mutual assistance request.

One inconsistency: Wayne Tempero says no one has spoken to Kim DotCom since his arrest. But in this interview released yesterday by TV3 News in New Zealand, Printzboard, the musical director for the Black Eyed Peas who directed the now-famous MegaUpload promotional video, says he has visited with Kim DotCom regularly since his arrest and that Kim has said he's looking forward to coming to the U.S. and fighting the charges.

Some snippets:

Printzboard says Kim told him he's going to go to the U.S. and fight the charges and clear his name.

He's like, "I didn't do nothing wrong. This is my company. This is the future. This is technology moving forward."

"He doesn't even need to be extradited. He's cool. He's like "Lets go, let's get this thing started. Like, why wait?"

Printzboard, like Tempero, says Kin DotCom's wife has no money and is relying on donations from friends.

"I know this guy, I looked in his eyes and he told me, "Prince, I need help, I have nothing, Mona has nothing."

Printzboard not only defends Kim DotCom and Megaupload, he says MegaUpload was good for artists. Kim DotCom was developing a platform that gives more control to artists than any other digital format out there, including iTunes.

"He's for the artists and creative forces of the world."

..."He provides a platform and it's up to you how you use it. Why sue this guy because he's had a vision of the future?"

I doubt Printzboard gave this in-depth interview without running it by Kim DotCom -- or his public relations team. It was very well-staged, taking place in Printzboard's studio with his staff. They even play the recording from the album they were working on for Kim DotCom's children the night before the arrest.

I also wonder whether Printzboard or Kim DotCom consulted DotCom's lawyers on the interview, given that they have publicly stated they are committed to fighting extradition. It seems more like a client-driven rather than lawyer-driven move.

It will be interesting to see whether Kim DotCom changes legal strategies, and instead of fighting extradition, agrees to it, telling the world he believes he's innocent and is looking forward to facing a U.S. jury.

Update: New video tonight on the latest seizures and New Zealand's Government as the puppets of the FBI. This news report was made with the cooperation of Kim DotCom's legal team. It points out no evidence has been released to support the FBI's charges that Kim DotCom made $175 million or that Megaupload ripped copyright holders off for $500 million, and that NZ officials refused to answer questions about it. The anchor asks a question New Zealanders should want an answer to: What was the evidence and did NZ officials vet it, or "just swallow it whole?"

It also points out that the Judge, in denying bail to Kim DotCom, said he had no way to assess the strength of the case against him. (From Paragraph 77 of Bail Decision.)

One last item: The car they drove off from the adjacent house was the sole remaining car. Kim DotCom's wife and children are now stranded without transportation. It's pretty appalling they would leave a woman who is 7 months pregnant with 3 other kids on a remote property without transportation.

The rent on the mansion falls due Monday, and Kim DotCom's lease is expected to be terminated at that time. Today, they hauled off artwork, television sets, jewelry and everything that remained with value.

Straight out of Alice and Wonderland, courtesy of the FBI and U.S. forfeiture laws: First the punishment, then the verdict.

'No, no!' said the Queen. `Sentence first --verdict afterwards.'
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    WTF (5.00 / 1) (#1)
    by Abdul Abulbul Amir on Thu Feb 09, 2012 at 11:02:55 AM EST

    possession of a firearm for unlawful purposes

    Wow!  Just how does one determine the myriad of purposes one might have for possession?


    I had to read this a few times (none / 0) (#7)
    by sj on Thu Feb 09, 2012 at 04:24:14 PM EST
    to make sure I really agreed with you :)

    This bust... (5.00 / 1) (#2)
    by kdog on Thu Feb 09, 2012 at 11:26:25 AM EST
    sounds shadier by the second...it's like Uncle Sam is pissed SOPA blew up so they rushed to get a big scalp, with Uncle Kiwi more than happy to carry the hatchet.

    Asset forfeiture, which I like to call legal stealing, is truly a disgrace.  If the accused is innocent until proven guilty so should be their stuff.  Shameful.

    It sort of makes you wonder (5.00 / 1) (#3)
    by Zorba on Thu Feb 09, 2012 at 12:34:17 PM EST
    Why our elected representatives were pushing so hard to get SOPA and PIPA passed, when apparently the government already has more than enough authority to go after those whom they perceive to be "copyright violators."  Like they need even more authority?  To do what?  Shut down websites (and arrest the owners of those websites), just on the mere rumor that they might have a link to another website that might link to a website that is supposedly "violating copyrights"?  In other words, to shut down anyone they d@mned well please, with no judicial review, nada.  Seems to me that they can already shut down any website they want.

    I think you're right... (5.00 / 1) (#4)
    by kdog on Thu Feb 09, 2012 at 12:40:45 PM EST
    they can shut down any website they want.  

    Maybe the whole point of SOPA was to provide more legal cover for shutting down any website they want.  More airs of legitimacy, if you will.

    Megaupload is one thing, I never heard of it till this bust...but they don't have the stones to shut down a youtube or other very popular sight with bigger corporate connections.  That could be what SOPA was all about.


    They Thought SOPA Would Pass (none / 0) (#5)
    by ScottW714 on Thu Feb 09, 2012 at 01:58:28 PM EST
    I assume they had a plan in place that included SOPA, when SOPA got delayed, they went in anyways.

    Without a doubt, this case would clearly violate SOPA, now it's just non-sense.  What I would like to know is why NZ was so helpful and continues to be.  What was promised, or given ?


    NZ Govt. is seizing the assets... (none / 0) (#6)
    by kdog on Thu Feb 09, 2012 at 02:09:36 PM EST
    which, if I'm not mistaken, they'll get to keep.  That's plenty of motivation to assist.

    ugh (none / 0) (#8)
    by sj on Thu Feb 09, 2012 at 04:25:39 PM EST
    Here is what I don't get (none / 0) (#9)
    by sj on Thu Feb 09, 2012 at 06:48:58 PM EST
    Okay, one of MANY things I don't get.  How could the judge deny bail when he couldn't even assess the evidence because it hadn't been filed?  The more I read about this, the more it stinks to high heaven.  

    The reporter is amazing.  He is respectful but relentless.

    bail not based on evidence (none / 0) (#10)
    by diogenes on Thu Feb 09, 2012 at 10:44:36 PM EST
    Bail is based on the risk of flight, not on the assessment of the strength of the evidence.    

    So, with extradition... (none / 0) (#11)
    by EL seattle on Thu Feb 09, 2012 at 11:44:57 PM EST
    I can see how it probably makes sense for the judge to deny bail to anyone who is a risk flight before they get shipped off to wherever to stand trial.

    What about after an extradition?  Can Dotcom (for example) apply for bail at the US court once he arrives stateside after the extradition?  Or does the NZ bail decision carry over to the US once he's delivered...  


    Yes they can apply after they get to (none / 0) (#13)
    by Jeralyn on Fri Feb 10, 2012 at 12:06:11 AM EST
    the U.S. see my comment below in response to Diogenes

    Bail is subject to (none / 0) (#12)
    by Jeralyn on Fri Feb 10, 2012 at 12:05:18 AM EST
    New Zealand's bail laws. Unless you have read them, please refrain from posting your opinions as fact. The strength of the Crown's case is a factor the court may consider. Just as it is in the U.S.

    Bail in the federal system in the U.S. is very different than in the various states. The Indictment in the U.S. serves as probable cause a crime was committed. The strength of the Government's case is one of several factors the court is to consider. The factors the Court must consider are:

    1. Nature and circumstances of the offense charged.
    2. Weight of evidence against the accused. (my emphasis)
    3. Accused's family ties.
    4. Employment.
    5. Financial resources.
    6. Character and mental condition.
    7. Length of residency in the community.
    8. Record of convictions.
    9. Record of appearance at Court proceedings or flight to avoid prosecution.

    The court must order an accused's pretrial release, with or without conditions, unless it "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and community."

    For certain offenses, like drugs and RICO (which the MegaUpload defendants are charged with)the Government can move for detention and no bail. If it does, a rebuttable presumption arises that they are flight risks and a danger to the community. The defendants can then come forward with "some evidence" to rebut the presumption. They don't need a lot of evidence.

    Once a defendant produces some evidence to rebut the presumption that he is a flight risk and/or a danger to the community, the burden of persuasion lies with the Government. It must convince the Court by clear and convincing evidence that the defendant is a danger to the community or by a preponderance of evidence that he is a flight risk.

    Again, in order to detain the defendant, the Court must determine that no condition or combination of conditions will reasonably assure the appearance of the person as required or the safety of the community.

    If the Court has concerns, it can grant bail with conditions, such as regular reporting to Pre-trial services, mandatory urine tests, travel and/or curfew restrictions, maintaining employment, avoiding contact with alleged co-conspirators, and possibly electronic home monitoring.

    Now. as to the bail law in New Zealand, it is the Bail Act 2000. You can google it.

    a defendant who is charged with an offence and is not bailable as of right must be released by a court on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention.

    In this case because of the extradition request, the defendants are not eligible for bail as a matter of right, so the Crown must establish grounds for continued detention. In considering whether there is just cause for continued detention, among the factors the court can consider are:

    a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind:
    (b) the strength of the evidence and the probability of conviction or otherwise: (my emphasis)
    (c) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:

    I really don't appreciate you posting legal conclusions here as fact, especially without linking to source material supporting your opinion. And I don't intend to respond in the future by writing a correct response. It's easier for me to delete the comment as factually or legally misleading.


    Thank you (none / 0) (#14)
    by sj on Fri Feb 10, 2012 at 12:59:59 AM EST
    I understand your frustration, but I'm very grateful for the information.

    you are welcome (5.00 / 1) (#15)
    by Jeralyn on Fri Feb 10, 2012 at 01:35:30 AM EST
    and I should have made it clearer my response (and frustration) was with Diogenes.