A Few Notes By A Federal Criminal Practitioner On The Megaupload Indictment
So, the feds — more specifically, the U.S. Attorney for the Eastern District of Virginia, assisted by attorneys from the Department of Justice — have secured an indictment of many individual and entity defendants associated with the site Megaupload. The indictment is all over the internet, including here.
A few comments from the perspective of someone who used to indict people for the feds for a living, and now defends people indicted by the feds for a living:
1. The notion that the feds scheduled this as a response to the SOPA/PIPA blackout day is highly unlikely. The grand jury returned the indictment weeks ago and the feds obtained an order sealing it until they arranged the arrests and searches. A multi-country takedown like this is a logistical nightmare involving hundreds of agents and dozens of court filings; it's not something that can be moved on a dime, and appearances aside, I'd rate it as very highly unlikely that it was timed as some sort of response to anti-SOPA protests.
2. Please, for God's sake, so the heads of federal criminal practitioners don't explode, remember that there is little relationship between the maximum sentence that the media (and the prosecutors) announce and the actual probable sentence. The two might coincide, but it's rare. Federal sentences are strongly influenced (but no longer strictly determined) by the arcane United States Sentencing Guidelines. To approximate the experience of calculating a recommended sentence under the Guidelines, attempt to complete a multinational corporation's tax return whilst guiding an overcaffinated min-maxing twelve-year-old through rolling up a Runequest character.
3. The charges are as follows:
a. Conspiracy to commit racketeering under 18 U.S.C. § 1962(d), commonly known as RICO.
b. Conspiracy under the generic federal conspiracy statute, 18 U.S.C. § 371, to commit criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(d)(2).
c. Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).
d. Criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(d)(2) and aiding and abetting the same under 18 U.S.C. § 2. These are charged in two separate counts to address the feds' two separate theories of how the defendants violated the relevant statutes.
4. All of those statutes have well-established elements — that is, the building blocks that the feds must prove beyond a reasonable doubt to establish the defendants' guilt. If there is interest I will go into the elements in depth. For now let me focus on one — the plain-vanilla federal conspiracy statute, 18 U.S.C. § 371. Under the Ninth Circuit's model jury instruction (which I link because the Fourth Circuit, in its wisdom, has elected not to publish model jury instructions) describes the elements like this:
The defendant is charged in [Count _______ of] the indictment with conspiring to _______ in violation of Section _______ of Title ___ of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit at least one crime as charged in the indictment; [and]
Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it [and;]
Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed.
I shall discuss with you briefly the law relating to each of these elements.
A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.
For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy. It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.
One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators. On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.
An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.
So: as you can see, the federal conspiracy statute is very broad, requiring that the charged individual himself or herself do little more than join an unlawful agreement.
5. The "overt act" requirement is a favorite of the feds, and the cause of much mischief. Note that the Megaupload indictment is 72 pages long. Much of that is taken up by a recitation of "overt acts" in furtherance of the conspiracy. The feds traditionally use the overt act requirement as an excuse to frame their indictments as recitations of the evidence in support of their case, detailing what happened and what evidence they have in gratuitous detail. Note, for example, the multiple quotations of seemingly incriminating emails in this indictment, recited on the pretext that sending the email was an overt act. Why do this? Well, it makes for good press. It's an avenue for providing many factual details to reporters without running afoul of such modest limits on press communications as the courts and DoJ rules impose. Moreover, many courts will read the entire indictment to a jury at the start of the case — it's like a free extra opening statement. Some courts will even let jurors take the indictment into the jury room with them.
Some judges see through this and don't care for it. The late William Matthew Byrne once yelled at me for the better part of half an hour on this subject, upset that my office had listed overt acts in a drug conspiracy indictment. He was particularly annoyed because the drug conspiracy statute didn't even require an overt act showing at the time. He saw it as a transparent ploy to influence press and jurors, and believed that it violated Federal Rule of Criminal Procedure 7(c)(1), which calls for a "plain, concise, and definite written statement of the essential facts constituting the offense charged," not the prosecutor's LiveJournal page. I viewed the experience as (1) an occasion for development of my moral character, and (2) an occasion for learning to stand there while a federal judge, red-faced, shouts at you whilst you nod and take it and think about pending in limine motions and the Heiligenstadt Testament and reverse cowgirl and the merits of dual-classing (your dwell-upon subjects during judicial tirades may vary).
6. The New Zealand extradition treaty looks fun; it will be interesting to see how it pays out.
More to follow next week.
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