Megaupload Pair Face 10 Years in Prison on New Organized Crime Charges

Eary 2022, after more than a decade of legal uncertainty following the Megaupload raids in 2012, Kim Dotcom and co-defendants Mattias Ortmann and Bram van der Kolk were still fighting to prevent their extradition to the United States.

With copyright infringement, racketeering and money laundering charges looming overseas, earlier this month Ortmann and van der Kolk admitted that the extradition case had “taken a heavy toll” on their lives. So, in the interests of moving on, a deal had been struck with the authorities.

Rather than risk a loss in their extradition battle and the prospect of standing before a US criminal court far from home, the former Megaupload executives reached an agreement with the New Zealand Government and the United States to be charged in New Zealand for “similar offenses”. Dotcom still faces extradition.

Court Appearance Delayed, Case Transferred to High Court

The two men were due to appear at the Auckland District Court today but the case was transferred to the High Court at Auckland instead. The first hearing there is scheduled for June, at which time the detailed charges should become public knowledge.

In the meantime, local journalist David Fisher reports that charge sheets filed with the District Court offer an early insight into what Ortmann and van der Kolk have agreed to face, in order to put their ten-year ordeal behind them.

Organized Crime-Related Charges

According to the documents, 50-year-old Ortmann and 39-year-old van der Kolk will stand accused of conspiring as part of an “organized criminal group” to unlawfully profit from copyright-infringing material. That “criminal group” will include Kim Dotcom but as things stand, he is not being charged in New Zealand.

The alleged offenses are said to have begun on January 1, 2005, several months earlier than the September 2005 date listed in the United States’s 2012 superseding indictment (pdf). Their alleged criminality is said to have ended on January 20, 2012, a date that marks the shutdown of Megaupload and the arrest of the men.

Pair Could Face Up To 10 Years in Prison

The detailed charges have not yet been made public but the phrase “organized criminal group” is referenced in Section 98A of the Crimes Act 1961. Such a group consists of three or more people with a shared objective or objectives. Since Ortmann and van der Kolk are not accused of any type of violence, the following objective(s) appear to apply:

(a) obtaining material benefits from the commission of offenses that are punishable by imprisonment for a term of 4 years or more; or
(b) obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of offences that are punishable by imprisonment for a term of 4 years or more

David Fisher reports that there are four charges for both of the men, each punishable by a maximum of 10 years in prison. Participation in an “organized criminal group”, consisting of three or more people with shared objectives, is an offense punishable by a prison term “not exceeding 10 years” in New Zealand, so that may well tie in.

When an offender is convicted of multiple similar and connected offenses in New Zealand, guidance in the Sentencing Act indicates that sentences are usually served concurrently. In any event, any sentences handed down locally are likely to be preferable to those available in the United States.

Defendants’ Plea Still Not Officially Confirmed

Kim Dotcom believes that his former colleagues will “admit liability” to put their ordeal behind them but that has not been confirmed publicly. However, the existence of an agreement with the authorities does strongly suggest that, especially since contested cases under Section 98A have a very low conviction rate.

According to a 2015 paper published by the Faculty of Law at Victoria University of Wellington (pdf), since it was conceived in 1998, an average of just 21% of offenders charged under Section 98A were actually convicted.

Kim Dotcom is yet to comment on today’s developments but his attacks on President Biden, who he directly blames for Megaupload’s demise, continue.

In response to a two-option Twitter poll this week, asking who people would prefer to be President of the United States, Dotcom’s followers overwhelmingly chose Vladimir Putin (75%) with Biden trailing behind with just a quarter of the votes.

While veteran politician Biden has bigger issues on his desk right now, including the state of the economy, Dotcom says he wants to undermine that too, at least according to a post on his new Telegram channel.

“If we can bring enough people together I have a plan how to do this,” he said.