US preparing criminal case against Assange

In an apparent accidental revelation it appears that the US are preparing to indict Julian Assange on criminal charges.

Assenge has been confined to the Ecudor’s Embassy in London since 2012 where he received political asylum to protect him from facing charges against him in Sweden.

Assange headed Wikileaks, released hacked Hillary Clinton emails during the 2016 presidential election campaign, which was praised by Donald Trump.

Reuters:  U.S. prepares criminal case against Wikileaks’ Assange

U.S. prosecutors are preparing to pursue a criminal case against Wikileaks founder Julian Assange, escalating a long battle targeting his anti-secrecy group.

According to a Thursday filing in an unrelated criminal case in a Virginia federal court, prosecutors have obtained a sealed indictment against Assange.

The charges were not immediately clear. Thursday’s filing had been sealed, but was made public this week for reasons that were also unclear, according to a person familiar with the matter.

Joshua Stueve, a spokesman for the U.S. attorney’s office in Alexandria, Virginia, said the filing was made an error. Wikileaks said it a Twitter post that it was an “apparent cut-and-paste error.”

The disclosure came as U.S. Special Counsel Robert Mueller investigates possible Russian interference in the 2016 U.S. presidential election, and possible collusion by U.S. President Donald Trump’s White House campaign.

U.S. intelligence agencies have concluded that Russia obtained material through hacking, and Mueller’s office has brought various criminal charges against Russians and Trump associates.

For its part, Wikileaks has faced scrutiny for publishing emails hacked before the election from the Democratic Party and the campaign chairman for Hillary Clinton, who Trump defeated.

U.S. officials have acknowledged that federal prosecutors in Virginia have been conducting a lengthy criminal probe into Assange and Wikileaks.

Greg Barns, an Australian lawyer advising Assange, said in a statement it was “no surprise” that the United States was seeking to charge Assange, and Australian officials should allow Assange to return there.

I presume the US could seek extradition from Australia.

In a statement on Friday, Wikileaks said Assange was willing to work with British officials as long he was not extradited to the United States.

I don’t know if that sort of a deal protecting him from extradition laws and protocols would be possible.

U.S. Secretary of State Mike Pompeo has called Wikileaks a “hostile intelligence service,” making that comment in April 2017 when he ran the U.S. Central Intelligence Agency.

Trump praised Wikileaks during his 2016 campaign.

Trump praises anyone who helps his cause.

Court of Appeal rules Kim Dotcom eligible for extradition

The Court of appeal has upheld findings by the District Court and the High Court that Kim Dotcom is eligible for extradition to the United States, but Dotcom quickly signalled what was expected, he would seek leave too appeal from the Supreme Court.

RNZ: Kim Dotcom eligible to be extradited to US, court rules

The Court of Appeal released its finding today, upholding the decision of the High Court and District Court.

Mr Dotcom and his three co-accused – Bram Van der Kolk, Matthias Ortmann and Finn Batato – are eligible for surrender on charges of money-laundering and copyright breaches related to the defunct file-sharing website Megaupload.

The court also ruled that evidence Mr Dotcom and his co-accused said they were prevented from calling would not have affected the decision to extradite.

“The evidence the appellants say the United States wrongfully prevented them from calling would not affect the question of whether there is sufficient evidence to make out a prima facie case.”

From the judgment:

[332] We accordingly confirm the eligibility determination made by the District Court. We direct that the District Court should now proceed without further delay to complete its duties under s 26 of the Extradition Act in accordance with the determination.

[333] We dismiss the appeal against Gilbert J’s decision to decline judicial review.

RNZ:

The decision on extradition now rests ith the Minister of Justice Andrew Little, according to the Extradition Act.

That may not be the case, given Dotcom’s response:

But three different courts have supported extradition.

Dotcom has the money to take this to the highest judicial level, and his money has bought him years of time, but the time at least could be running out.

Stuff:  Kim Dotcom loses appeal against extradition, will take case to Supreme Court

After losing their case against extradition in the North Shore District Court, and then on appeal in the High Court, the four men had appealed to the Court of Appeal, which on Thursday rejected their arguments.

Dotcom said he was “extremely disappointed” by the decision, and would appeal it to the Supreme Court.

“My legal team are confident that the Supreme Court will hear the appeal given there are such significant legal issues at stake,” Dotcom said.

Dotcom, in his response to the judgment, said: “The court’s interpretation of the relevant copyright provisions cannot be right.

“The precedent set is concerning and has ramifications in New Zealand outside my case. The decision exposes Internet Service Providers to criminal liability for the misuse of their services by users, as is claimed against me.

This is something that, as any rudimentary review of the legislative history makes clear, and the High Court accepted, was never intended. The Court was taken through that history but has not referred to it.

“As people will know, I am prepared to fight to get justice, whether it is for me or others,” Dotcom said.

More to the point, he is trying to avoid facing the US justice system.

However, acting Prime Minister Winston Peters said the possibility of appealing wasn’t clear cut.

“I am told he seeks to appeal, whether he can or not is a matter of debate.

I think that seeking leave to appeal from the Supreme Court will happen before it goes to the Minister of Justice for a final decision.

 

 

Dotcom deportation decision on hold

An Immigration NZ report on possible deportation of Kim Dotcom is on hold until after his extradition has been fully dealt with.

NZH Exclusive: Inquiry into deporting Kim Dotcom is complete but Immigration NZ is keeping its findings secret – even from its minister

Immigration NZ has completed an investigation into whether Kim Dotcom can be deported from New Zealand for failing to declare a dangerous driving conviction – but it’s refusing to say what the outcome is.

The department has not even told its new minister, Iain Lees-Galloway, the inquiry is complete although legal experts say it almost certainly would recommend Dotcom be deported.

But that won’t happen without the report going to Lees-Galloway – it’s his job to make the decision.

Immigration NZ won’t say what the outcome is and instead aims to wait for the end of the legal fight to extradite Dotcom to the United States to stand trial for alleged copyright breaches.

Immigration NZ’s resolutions manager Margaret Cantlon said “any question” of Dotcom’s deportation would not go to Lees-Galloway until the extradition proceedings, including appeals and any judicial review, were finished.

“INZ has not briefed the new minister on the deportation case.”

Deportation would interfere with the long running extradition process that is back in court (Court of Appeal) at the moment.

If deported, Dotcom would likely be sent back to Germany, which would pose a problem for the United States because it has different extradition rules. Germany has already refused to extradite one of the Megaupload accused within its borders.

Deportation “looked a slam dunk”:

Lane Neave law firm partner Mark Williams said the final decision was down to Lees-Galloway and “the minister is going to hope extradition does the job for him”.

It would save carrying out unnecessary work, potentially fighting through the court and save the minister from a political hot potato.

“My view is if it got to the position where the minister was looking at this under a National government, it would be a practical certainty he would be deported.”

Under the new government, he said it still looked a “slam dunk” because it was the second time a new conviction had emerged. “That would not be viewed favourably at all.”

Williams, who is considered an international expert on immigration law, holds roles at leading universities and sits on the NZ Law Society immigration committee, said the international perception of New Zealand’s immigration system was important.

“You’d almost have to deport someone like that to send a message.”

If Dotcom survives extradition and faces deportation he is unlikely to go without another legal fight.

Dotcom has called deportation the government’s “plan B” if efforts to extradite him to the United States fail. But he has said that effort to remove him would result in another fight through the courts.

Williams said appeals were heard by the Immigration and Protection Tribunal and could be subject to judicial review at the High Court. Successful appeals beyond the High Court were rare.

Dotcom’s situation, his amount of financial resources and his determination to fight through the courts are also rare.

Judge rules no copyright issue but fraud valid for extradition in Dotcom case

A judge has ruled in favour if Kim Dotcom on there being no equivalent “copyright” crime in New Zealand, but also ruled that Dotcom could be extradited on fraud charges.

NZH: Kim Dotcom legal saga: Extradition to US over Megaupload still on cards but he claims court ruling is a ‘major victory’

This latest legal milestone is this afternoon’s ruling from Justice Murray Gilbert who had been asked to overturn a decision that Dotcom was eligible for extradition to face criminal charges in the United States.

After five months of deliberation, Gilbert found that Dotcom remained eligible for extradition to the US – but not on copyright charges.

The judge found in favour of arguments put by Dotcom’s legal team, led by Ron Mansfield, that there was no equivalent “copyright” crime in New Zealand that would activate the extradition treaty.

However, the ruling also saw Justice Gilbert finding in favour of the US argument that Dotcom – and his three co-accused – could be extradited because it was at essence a “fraud” case and there was such a crime in the extradition treaty.

Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato face decades in a US prison after a 2012 raid brought down the Megaupload file-sharing super-site Megaupload they set up and ran.

In an interview with the Herald, Dotcom said the ruling was a “major victory” because it ruled that there was no New Zealand equivalent to the US criminal charges of copyright violation.

“The major part of this litigation has been won by this judgment – that copyright is not extraditable.

It may be a major battle win, but the war against extradition could still be lost.

The ruling today has created an unusual bureaucratic contradiction – the warrant which was served on Dotcom when he was arrested on January 20, 2012, stated he was being charged with “copyright” offences.

Likewise, the charges Dotcom will face in the US are founded in an alleged act of criminal copyright violation.

Mansfield also claimed victory, saying the case was no longer the “largest criminal copyright case”.

“As we have said all along, there is no such offence under our Copyright Act. We were right.

“To win the major plank of the case but to get that outcome is extremely disappointing. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright … how it can nonetheless be massaged into a general fraud offence.”

Lawyers acting for the US began referring to the case as one of “fraud” after months of hearings.

By the time of the extradition hearing in late 2015, it was a main plank of the case with the lawyer acting for the US, Christine Gordon QC, telling Judge Nevin Dawson: “When distractions are stripped away, the evidence boils down to a central scheme of fraud. The scale of that fraud and the way it was conducted might indeed be novel. This is mainly as a result of the reach of the internet and the behaviour of mass audiences.

“Yet the dishonesty at the core of Megaupload’s operation can be expressed in straight-forward terms. The basic features do not differ significantly from earlier cases of fraud against copyright owners.

“The respondents were part of a conspiracy. They deliberately attracted copyright infringing material to their website. They deliberately preserved it, deliberately took steps to profit from that material and made vast sums of money which they applied to various purposes knowing it had been unlawfully acquired.”

Both sides are expected to challenge aspects of the ruling before the Court of Appeal – and eventually the Supreme Court, if it accepts the case.

If the Supreme Court upholds the decisions of the District and High Court, the Minister of Justice is then able to sign the extradition order – which itself can be challenged in the courts.

On that basis, there are at least two years of Dotcom hearings yet to run.

It was five years ago, in 2012, that Dotcom and his associates were arrested in an over the top raid on his ‘mansion’.

 

Sweden drops charges against Assange

Sweden has dropped the charges against Julian Assange relating to allegations made seven years ago.

Stuff: Julian Assange all smiles after seven-year rape investigation is dropped

Sweden has dropped its investigation into a rape allegation against WikiLeaks founder Julian Assange, who says he won’t forgive or forget the slandering of his name following an “important victory”.

The country’s Director of Public Prosecutions, Marianne Ny, made the announcement in Stockholm on Friday.

“Chief Prosecutor Marianne Ny has today decided to discontinue the preliminary investigation regarding suspected rape concerning Julian Assange,” the prosecutors’ office said in a statement.

Ny said it was “not possible to take any further steps that would move the investigation forward”.

“All prospects of pursuing the investigation are now exhausted,” she said. “It is no longer proportionate to maintain the arrest of Julian Assange in his absence.

“To continue with legal proceedings would require Julian Assange’s personal appearance in court. There is no longer any reason to continue with the investigation.”​

Assange, 45, who has been in Ecuador’s London embassy since 2012, where he was granted political asylum, tweeted a smiling image of himself after the news broke.

In February last year, the UN Working Group on Arbitrary Detention said Assange was in effect being arbitrarily detained against international law.

He wasn’t detained, I thought he chose to live in the Ecudorian Embassy to avoid facing the investigation.

So that is now over for Assange, but it may not be the end of his problems.

‘REAL RISK’ OF ARREST, EXTRADITION

​Swedish prosecutors interviewed Assange at the embassy last November and in mid-March received a full translation of the interview, which they have since been reviewing.

In May, Assange’s lawyers asked the Stockholm District Court to review the detention order and arrest warrant against him.

They argued that the US had expressed they were seeking his extradition to the US over alleged crimes relating to Wikileaks’ publication of classified documents.

Assange’s lawyer Per Samuelson said Assange faced a “real risk” of extradition from Sweden. He argued his client’s remand status should be changed so he could leave the embassy to travel to Ecuador.

He is limited to where he can travel in the world to avoid the possibility of extradition proceedings.

However Assange is not likely to celebrate by immediately leaving the Ecuadorian embassy in London as he would still be arrested.

In a tweet, Wikileaks said the “focus now moves to the UK”.

US attorney general Jeff Sessions has said arresting Assange was “a priority”, over alleged crimes relating to Wikileaks’ publication of classified documents.

London’s Metropolitan Police Service, which has been staking out the embassy for five years, said there was still an outstanding warrant for Assange’s arrest in the UK for skipping bail. Wikileaks claimed the UK would arrest Assange “regardless”.

He may not find it easy to get out of Britain.

Melinda Taylor, a member of Assange’s legal team, said their next step was to push for the US to “clarify” Assange’s legal status.

“Their prosecution has been going on since at least 2010, that’s a hell of a long time,” she said. “He has been deprived of the ability to defend himself.”

His lawyers would approach the Department of Justice in the US and request that they either confirm their decision to seek Assange’s extradition, or drop the case altogether, she said.

Assange argues that he and Wikileaks are protected under freedom of speech laws, so he has no case to answer in the US.

Asked if Assange would consider agreeing to extradition to fight the case conventionally in the US courts, Taylor said Assange had already indicated earlier this year that he would do so “if he could rely on standard due process protections and assert a public interest defence”

Assange’s lawyers will also call on the UK to drop the outstanding arrest warrant against him.

They have a potential legal avenue: to approach the courts arguing that the Swedish decision constitutes a significant change in circumstances that means the warrant should be reviewed.

 

Dotcom to appeal after High Court judgment

As expected Dotcom will appeal.


Media Statement From Dotcom Legal Team.

This case is no longer the “largest criminal copyright case”, 1 at least as far as New Zealand is concerned. As we have said all along, there is no such offence under our Copyright Act. We were right. However, this afternoon the High Court judgment 2 was issued and, ultimately, although it concluded we are right, 3 the Court concluded that Kim is still eligible for surrender.

To win the major plank 4 of the case but to get that outcome is extremely disappointing. However, we are far from defeated. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright is not an offence under that Act, how it can nonetheless be massaged into a general fraud offence. In fact, that thinking has been rejected outright in the Supreme Court in the United States.

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

The last hurdle to what we say is the correct outcome – no extradition – will now need to be determined by the Court of Appeal. We remain confident that this last point, which would prevent extradition in this complex and unprecedented legal case, will be resolved in Kim’s favour in a manner consistent with Parliament’s intent, international law and, importantly one might think, the United States’ own law.

Whilst many have struggled to get beyond the United States’ hype in this politically charged and misunderstood case, an objective observer will now realise that there is much more to this case than they were previously informed of from the District Court judgment.

Whether Kim has committed an offence under New Zealand copyright law has finally now been answered in his favour; he has not. Whether our law should still permit him to be extradited to the United States under an Act that has no interest in copyright, is the question that remains now to be answered by our Courts. We say no and we are confident that this must be right.

Whether you are a supporter of Kim’s or not, these are important principles of law for us all and the very issues that we need our justice system to grapple with if we want a credible and safe process for extradition to any requesting country, including those with whom we have a close commercial and political relationship.

Ron Mansfield, Barrister

Dotcom Legal Team

1 https://www.justice.gov/opa/pr/justice-department-charges-leaders-megaupload-widespread-online-copyright-infringement

2 Ortmann & Ors v United States of America [2017] NZHC 189.

3 See paragraphs [169]-[192] (in particular [192]).

4 See paragraph [591].

5 See paragraph [183].

(Dotcom and) Ortmann v The United States of America

High Court media release on a judgment on the extradition of Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato to the United States.


Result

In a judgment released today the High Court has confirmed that Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato (the appellants) are eligible for extradition under section 24 of the Extradition Act 1999.

The United States Government has been seeking the appellants’ extradition to face trial on 13 counts including allegations of conspiracy to commit racketeering; copyright infringement; money laundering and wire fraud since 2012.

The High Court has found that the District Court decision in December 2015 finding that the appellants are eligible for extradition was flawed but that the errors in the judgment were immaterial because there are available pathways for extradition on each count.

The key legal questions

In extradition proceedings the primary role of the Court is to determine whether the requested persons are eligible for surrender in relation to the offences for which surrender is sought. Broadly speaking, this requires the Court to follow a two-step approach.

First, the Court must be satisfied that the alleged conduct constituting the essence of the offence for which surrender is sought correlates to an “extradition offence”. In this case, because there is an extradition treaty, this will depend on whether the conduct correlates to an offence listed in the NZ-US Treaty or deemed to be listed in it by the Extradition Act.

Second, if the Court is satisfied that the offences for which surrender is sought are extradition offences, it must then determine whether the evidence relied on by the requesting State (the US) is sufficient to justify a trial if the offence had been committed in New Zealand. This is what is commonly referred to as a prima facie case – is there sufficient evidence for a properly directed to jury to convict?

Contents of the judgment

The essence of the United States’ case is that the appellants, as officers of Megaupload, were party to a conspiracy to profit from copyright infringement by users of Megaupload’s services.

One of the central issues in the case is whether copyright infringement by digital online communication of copyright protected works to members of the public is a criminal offence in New Zealand under the Copyright Act. The High Court has held that it is not, contrary to the conclusion reached in the District Court. The appellants have therefore succeeded with one of the main planks of their case.

However, the High Court has found that a conspiracy to commit copyright infringement amounts to a conspiracy to defraud and is therefore an extradition offence listed in the USNZ Treaty. Further, other extradition pathways are available for all counts because of their correlation to a number of serious crimes in the Crimes Act. These offences are deemed to be listed in the Treaty by a provision in the Extradition Act, subject to various criteria being met.

The High Court has confirmed the conclusion reached by the District Court that the evidence relied on by the United States for the purposes of extradition does satisfy the prima facie case test against each appellant on each count. The High Court has also confirmed that the District Court was correct to dismiss the appellants’ applications for a permanent stay of the extradition proceedings for alleged abuse of process.

Decision

The District Court judgment finding that the appellants are eligible for surrender to the United States on all counts in the indictment is confirmed.


The full High Court judgment is here: Ortmann v The United States of America

High Court: Dotcom and co-accused eligible for extradition

The High Court has just released a decision saying that Kim Dotcom cannot be extradited for copyright infringement, but there are grounds for extradition on “general criminal law fraud provisions”.

NZ Herald: Kim Dotcom and co-accused eligible for extradition to US, says High Court

In the High Court finding released today, Justice Murray Gilbert upheld a decision by the District Court that there were grounds for the quartet to be extradited,

But the judge has also supported an argument made by Dotcom’s legal team that he and his former Megaupload colleagues cannot be extradited on copyright infringement grounds.

He said that was because “online communication of copyright protected works to the public is not a criminal offence in New Zealand”.

He said it meant the accused could not be extradited to the US on copyright grounds.

Instead, Justice Gilbert said there were “general criminal law fraud provisions” which covered the actions of the accused and they could be extradited on that basis.

He said he agreed with District Court judge Nevin Dawson that there was enough information to make the decision based on accepting a “record of the case” put forward by the US which detailed the evidence it claimed to hold against the Megaupload accused.

Dotcom’s lawyer is claiming a victory.

Dotcom’s lawyer Ron Mansfield claimed victory from the ruling, saying the case was no longer the “largest criminal copyright case”.

“As we have said all along, there is no such offence under our Copyright Act. We were right.”

That may be so, but if Dotcom can be still be extradited that is hardly a victory.

And it probably won’t be the last attempt to prevent extradition. I presume there are appeal steps yet to come.

NZ Herald has an interview with Dotcom on this: Kim Dotcom legal saga: Extradition to US over Megaupload still on cards but he claims court ruling is a ‘major victory’

Assange extradition – not

The Hill: Assange lawyer: Manning commutation doesn’t meet extradition offer’s conditions

The attorney for Julian Assange said President Obama’s commutation of Chelsea Manning’s sentence does not meet the conditions of the WikiLeaks head’s offer to be extradited to the United States if Manning were pardoned.

Obama on Tuesday commuted Manning’s sentence for leaking classified information to WikiLeaks, leading many to wonder whether that meant Assange was ready to surrender to the Department of Justice.

“Mr. Assange welcomes the announcement that Ms. Manning’s sentence will be reduced and she will be released in May, but this is well short of what he sought,” said Barry Pollack, Assange’s U.S.-based attorney, via email.

“Mr. Assange had called for Chelsea Manning to receive clemency and be released immediately.”

Assange has not been publicly charged with a crime in the United States, but his legal team believes he may be charged “under seal,” where charges are kept secret to prevent a suspect from preparing an escape.

Assange first offered in September to trade extradition to the U.S. for a pardon for Manning. He reiterated the claim as recently as last week on Twitter.

“If Obama grants Manning clemency Assange will agree to US extradition despite clear unconstitutionality of DoJ case,” tweeted WikiLeaks’s official account on Thursday.

I doubt this will surprise many people.

 

Dotcom extradition appeal closing

The Kim Dotcom extradition appeal seems to have dropped off the local media radar. If it wasn’t for Nelly prodding away here it would just about have been forgotten.

The closing arguments were heard in Court in Auckland this week.

Reuters: Dotcom’s appeal against extradition to U.S. winds up in New Zealand, ruling likely weeks away

Lawyers for German entrepreneur Kim Dotcom, wanted in the United States on copyright infringement and money-laundering charges over his file-sharing website Megaupload, argued on Wednesday there was not enough evidence to show he conspired to commit a crime.

The Auckland court heard closing arguments in Dotcom’s four-week appeal against a lower court’s decision to extradite him to the U.S., the first New Zealand court proceedings to be broadcast live on the internet.

The appeal took place nearly five years after dozens of black-clad police rappelled into the flamboyant entrepreneur’s New Zealand mansion and cut him from a safe room.

U.S. authorities say Dotcom and three co-accused Megaupload executives cost film studios and record companies more than $500 million and generated more than $175 million by encouraging paying users to store and share copyrighted material.

The four deny wrongdoing and are on bail.

The case has been closely watched by the media industry and developers in the file-sharing business for signs of how far the United States is willing to go to protect copyright holders.

The appeal set a precedent when the judge gave permission for the hearing to be streamed on YouTube, but legal experts at the time had warned that appeals hearings tend to be similar to “watching paint dry”.

Rodriguez Ferrere said the “monolithically boring” nature of the entire proceeding “turned everybody off”.

The final afternoon’s proceedings only attracted around 100 viewers online, according to YouTube.

If it wasn’t for Nelly’s efforts here it may have been far fewer.

“Given the stakes of this case, the losing party will likely appeal any adverse judgment to the Court of Appeal,” said Ira Rothken, a lawyer representing Dotcom, in an email.

Unless the US pulls the plug on proceedings it is likely to limp on for years.

Nelly can switch to watching grass grow while she waits for the ruling. At least it’s spring.