US seeking to block PokerStars motion to dismiss based on fugitive disentitlement

[lawdude]

Originally Posted by Diamond_Flush

I said this in another thread, but I think it bears repeating here, there is no motion before the court to declare Scheinberg a fugitive, nor is there any motion to apply the fugitive disentitlement doctrine.

There is only a motion for expedited discovery, limited in scope to align with findings to possibly support the above.

Of course. As I noted, the key finding would be that the defendants exercised their imaginary "right not to come here" for the purpose of avoiding prosecution. That requires discovery as to their motives.

[tamiller866]

Originally Posted by lawdude

The courts do not disagree on either count. Show me ANY case that says that the US recognizes a "right" of suspects wanted under US law to avoid US jurisdiction for the purpose of avoiding the charges. So long as the reason the defendants don't come here is to avoid prosecution, the doctrine applies. The reason the government needs discovery is to establish that intent.

And show me ANY case that says fugitive disentitlement doesn't apply to motions to dismiss.

You are making up the law.

Doesn't apply to motions to dismiss? What?

Congress rewrote the forfeiture statutes to clarify to the courts that they did have the discretion to use fugitive disentitlement to approve a summary judgement.

The problem is that SCOTUS never suggested that courts don't have that discretion, so the only thing that changed under the new statute is the definition of fugitive, the common law definition has now been replaced by the statutory definition which includes simply refusing to enter the US.

This new definition has not yet been tested constitutionally, because in the one case in which it was used, the court asked the defendant to provide the court with a reason that exercising it's discretion would not serve justice, and his answer was only that he was not a common law fugitive.

Had his US accomplice not already been convicted of the crime giving rise to the civil forfeiture, had the assets not already been shown to a court by a preponderance of evidence to be involved in or proceeds from a crime, had he provided the court with any factual dispute needing to be resolved by trial, or any issue of law for the court not to grant a summary judgement, the court would be bound by precedent in Degen (who argued statute of limitations) to allow that argument to be heard.

Neither the statutory definition of fugitive nor the 'right' of the government to forfeit assets from people fitting that definition has ever been tested, and unfortunately it won't be in this case either because they reached a settlement - or are finally ready to announce the settlement that was clearly agreed to before Bitar ever got on a plane for NY.

[Didace]

Originally Posted by lawdude

So long as the reason the defendants don't come here is to avoid prosecution, the doctrine applies.

How does one prove the reason I didn't go somewhere?

[Skallagrim]

Originally Posted by Didace

How does one prove the reason I didn't go somewhere?

Either through direct evidence like a letter to a person located in that somewhere that says "I'd love to come visit but there is this damned indictment thing ...." or through circumstantial evidence like a record of monthly weekend trips to that somewhere that end for no other apparent reason at the same time you become aware of the indictment.

Hence the request for permission to comb through all of Mr. Scheinberg's emails and travel records, otherwise know as "limited discovery."

[lawdude]

Originally Posted by tamiller866

Doesn't apply to motions to dismiss? What?

Congress rewrote the forfeiture statutes to clarify to the courts that they did have the discretion to use fugitive disentitlement to approve a summary judgement.

The problem is that SCOTUS never suggested that courts don't have that discretion, so the only thing that changed under the new statute is the definition of fugitive, the common law definition has now been replaced by the statutory definition which includes simply refusing to enter the US.

This new definition has not yet been tested constitutionally, because in the one case in which it was used, the court asked the defendant to provide the court with a reason that exercising it's discretion would not serve justice, and his answer was only that he was not a common law fugitive.

Had his US accomplice not already been convicted of the crime giving rise to the civil forfeiture, had the assets not already been shown to a court by a preponderance of evidence to be involved in or proceeds from a crime, had he provided the court with any factual dispute needing to be resolved by trial, or any issue of law for the court not to grant a summary judgement, the court would be bound by precedent in Degen (who argued statute of limitations) to allow that argument to be heard.

Neither the statutory definition of fugitive nor the 'right' of the government to forfeit assets from people fitting that definition has ever been tested, and unfortunately it won't be in this case either because they reached a settlement - or are finally ready to announce the settlement that was clearly agreed to before Bitar ever got on a plane for NY.

Tamiller, the Constitution doesn't work the way you think it does. 99.999 percent of laws "have not been tested constitutionally"-- because they are constitutional.

Fugitive disentitlement is a COMMON LAW PRINCIPLE THAT DATES BACK HUNDREDS OF YEARS. Of course it's constitutional to disentitle fugitives.

And you might consider WHY people keep on making deals with the US government. Hint: it's not because the DOJ's positions have no merit and could be easily fought.

[tamiller866]

Originally Posted by lawdude

Tamiller, the Constitution doesn't work the way you think it does. 99.999 percent of laws "have not been tested constitutionally"-- because they are constitutional.

Fugitive disentitlement is a COMMON LAW PRINCIPLE THAT DATES BACK HUNDREDS OF YEARS. Of course it's constitutional to disentitle fugitives.

And you might consider WHY people keep on making deals with the US government. Hint: it's not because the DOJ's positions have no merit and could be easily fought.

lawdude,

It's not our constitution that would be the concern, had they been going after foreign assets of a foreign (Indian in that case) national who had never even been in the US, it would have taken a Noriega-like effort in order to exercise whatever 'summary judgement' a US court might have issued.

The reason deals get done is that public knowledge that a business is simply being investigated, let alone indicted, let alone found guilty is likely to cost a business more than the settlement.

In the case of PokerStars, 'winning' the case was never an option, even if no State had a law against internet gambling, making it possible that they might not face any civil penalty, any hope at all of even licensing their software in the US would be lost.

Not related to PokerStars, but I read this interesting article in Forbes today about the war the US government is waging with business in general, and just what a no win situation it is:

To the CEO Of Gibson: It's Not Just a War Against Capitalism

Edit: 19 MORE Examples Of How Control Freaks Are Killing America With Their Completely Ridiculous Regulations

[DonkeyQuixote]

Originally Posted by tamiller866

This exact argument was used to declare Bill Scott (Bodog) a fugitive and get a summary judgement for his seized assets (money), which was promptly overturned on appeal because they couldn't prove that his refusal to travel was to avoid US jurisdiction....

.

A clarification, Bill Scott, was from WWTS, not BoDog. His operation was sportsbetting and was featured on 60 Minutes as the source of the NFL betting line for US players. (According to 60 Minutes, Bill posted a special wiseguys line on Sunday noight, made adjustments based on their action, then posted it publicly later that night. Clearly, a high profile guy. He later sold his company to some public company I cannot recall the name of.)

[lawdude]

Ta:

Read my posts above again. It is quite true that the US has to prove that the reason for the absence is to avoid prosecution. That's not a constitutional requirement, but it is part of the statute.

But that's very different than a requirement that the person BE in US jurisdiction and then leave.

[Skallagrim]

It's all moot now!

[tamiller866]

Originally Posted by lawdude

Ta:

Read my posts above again. It is quite true that the US has to prove that the reason for the absence is to avoid prosecution. That's not a constitutional requirement, but it is part of the statute.

But that's very different than a requirement that the person BE in US jurisdiction and then leave.

Actually no, the new statute and the case law (one case) in which it was used does not require the US to prove anything, they were able to get a summary judgement over seized (US) assets in disregard of the innocent ownership claim of a foreign (Indian) national who had never been to the US.

But the statutory definition of fugitive was not an issue before the court, since the defendant in that case had failed to pay his lawyer and brought no question of law or disagreement over facts.

So the court was bound to the statute in that case, but it's hardly settled law that this new definition of fugitive (refusing to submit to US jurisdiction) will actually hold up if the 'innocence' of the owner is in some way in doubt.

[lawdude]

Originally Posted by tamiller866

Actually no, the new statute and the case law (one case) in which it was used does not require the US to prove anything, they were able to get a summary judgement over seized (US) assets in disregard of the innocent ownership claim of a foreign (Indian) national who had never been to the US.

But the statutory definition of fugitive was not an issue before the court, since the defendant in that case had failed to pay his lawyer and brought no question of law or disagreement over facts.

So the court was bound to the statute in that case, but it's hardly settled law that this new definition of fugitive (refusing to submit to US jurisdiction) will actually hold up if the 'innocence' of the owner is in some way in doubt.

Innocence has nothing to do with fugitive disentitlement. A perfectly innocent person can be convicted of even a felony offense in absentia.

The issue is whether the reason for the person's absence was due to the prosecution. As long as that is true, the defendant is disentitled.

[sba9630]

Originally Posted by Skallagrim

It's all moot now!

.

[tamiller866]

Originally Posted by lawdude

Innocence has nothing to do with fugitive disentitlement. A perfectly innocent person can be convicted of even a felony offense in absentia.

The issue is whether the reason for the person's absence was due to the prosecution. As long as that is true, the defendant is disentitled.

In a criminal case yes, but in a forfeiture of assets already established to be 'guilty' by a preponderance of evidence when the seizure warrant is granted, the innocence of the owner is the only thing that matters.

Had the innocence of the owner in the US v $6.1M case been properly brought into question, a ruling on whether the statutory definition of fugitive (to include a foreign citizen who had never even visited the US) was enforceable would have been required.

Since the defendant didn't contest the actual issue before the court, the motion for summary judgement was granted, and the DOJ now cites that case as precedent for their 'right' to seize assets from anyone/anywhere, but an actual reading of the case shows that SCOTUS' ruling in Degen is still the binding precedent for fugitive disentitlement in civil forfeiture when their is a pending criminal case.