United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
Artem Vaulin (“Vaulin”) has been indicted along
with two co-defendants on various charges stemming from his
alleged involvement in operating a BitTorrent website, as
well as other related websites. The charges in the indictment
comprise criminal copyright infringement under 17 U.S.C.
§ 506 of the Copyright Act, conspiring to commit
criminal copyright infringement under 18 U.S.C. § 371,
aiding and abetting criminal copyright infringement under 18
U.S.C. § 2, money laundering under 18 U.S.C. §
1956(a)(2)(A) and § 1956(a)(2)(B)(i), conspiring to
commit money laundering under 18 U.S.C. § 1956(h), and
aiding and abetting money laundering, again under 18 U.S.C.
who is currently in Poland and contesting extradition, has
moved to dismiss the indictment. In response, the government
argues among other things that, because Vaulin is a fugitive
and refuses to appear in this proceeding, the Court should
decline to entertain his motion under the fugitive
disentitlement doctrine. For the following reasons, the Court
finds that the fugitive disentitlement doctrine applies here.
Nevertheless, following the path charted by the Seventh
Circuit in United States v. Bohhari, 757
F.3d 664 (7th Cir. 2014), and for the sake of judicial
efficiency, the Court reviews and denies Vaulin's motion
to dismiss  on the merits.
following allegations are taken from the indictment and
accepted as true in evaluating Vaulin's motion to
dismiss. United States v. Moore, 563 F.3d 583, 586
(7th Cir. 2009).
times relevant to the indictment, Vaulin and his
co-defendants operated Kickass Torrents (“KAT”),
“a commercial website that facilitated and promoted the
reproduction and distribution of copyrighted content over the
Internet without the authorization of the copyright
owners.” Indictment, Count 1 ¶¶ 1(b), 1(e),
ECF No. 19. KAT solicited, collected, and indexed
“torrent files.” Id., Count 1,
¶¶ 1(b), 4, 9. A torrent file contains instructions
for identifying other users of the so-called
“BitTorrent” network. Id., Count 1,
¶ 1(a). The file further instructs users on how to
download copies of media from other users over the Internet
using a BitTorrent client, or software. Id. Torrent
files, therefore, are not media themselves; they are a means
of connecting a user desiring a copy of media with other
users willing to distribute. By obtaining torrent files from
sites like KAT, users of a BitTorrent network locate one
another, and, by use of a BitTorrent client, distribute
copies of media or download their own.
a large following of users-“[m]illions of members . . .
many of whom resided in the United States.”
Id., Count 1 ¶ 1(b). KAT's network utilized
computer servers throughout the world, including servers
located in Chicago. Id., Count 1 ¶ 18. The site
“generate[d] millions of dollars from the unlawful
reproduction and distribution of copyright-protected media,
including movies-some of which were still playing in
theaters-television shows, music, video games, computer
software, and electronic books.” Id., Count 1
¶ 3. Vaulin and his co-defendants accomplished this by
“soliciting and causing others to solicit extensive
online advertising, sales of KAT's visitor traffic, and
KAT user donations.” Id., Count 1 ¶ 13.
might surmise from this amount of revenue, the KAT website
was quite elaborate. Torrent files were indexed by genre in
order to allow KAT users “to easily browse, locate, and
obtain their desired infringed copyrighted content.”
Id., Count 1 ¶¶ 9-10. To assist in the
downloading and distribution process, Vaulin and his
co-defendants developed and offered their own BitTorrent
client for their users. Id., Count 1 ¶ 19.
Users notified one another when new content was available,
and the website encouraged and rewarded frequent users with
awards and accolades. Id., Count 1 ¶¶ 6,
11. At the same time, Vaulin and his co-defendants instituted
a code of conduct that banned users for “uploading
torrents that contained malware, promoted other torrent
sites, or facilitated the download of ‘banned'
content.” Id., Count 1 ¶ 12. There were
no sanctions, however, for uploading torrent files for
copyright-protected content. Id.
result of KAT's success, Vaulin and his co-defendants
received donations from KAT users and made millions from
online advertising revenues. Id., Count 1
¶¶ 7, 13. But, given that KAT facilitated the
unauthorized exchange of copyrighted material, they hid these
proceeds in bank accounts owned by various shell companies.
Id., Count 1 ¶ 14. In addition, they were
forced to change KAT's domain name at various times,
“in part to avoid and circumvent court orders.”
Id., Count 1 ¶ 16. And, in order to hide their
operations, Vaulin and his co-defendants housed KAT and
related sites under a Ukranian company called
“Cryptoneat.” Id., Count 1 ¶ 24.
addition to KAT, Vaulin and his co-defendants operated a
number of “direct download websites.”
Id., Count 1 ¶ 21. These websites, rather than
collecting torrent files, made unauthorized copies of
copyrighted works directly available for users to download.
Id. Vaulin and his co-defendants also hid operation
of the direct download websites by way of Cryptoneat.
Id., Count 1 ¶ 24.
on these alleged activities, the indictment charges Vaulin
and his co-defendants with sixteen counts of criminal
conduct. Count 1 charges them with conspiring to violate 17
U.S.C. § 506(a)(1)(A) and § 506(a)(1)(C), two
different provisions of the criminal copyright
statute. Count 2 charges them with violating and
aiding and abetting a violation of 17 U.S.C. §
506(a)(1)(C) in relation to the commercial movie, “The
Butler, ” on September 17, 2013. Counts 3 through 12
charge the same, but in relation to ten additional commercial
movies over a period spanning June 24, 2016, through July 7,
2016. Lastly, Counts 13 through 16 charge money laundering,
conspiracy to commit money laundering, and aiding and
abetting money laundering in connection with these
Rule 7(c)(1), “[t]he indictment or information must be
a plain, concise, and definite statement of the essential
facts constituting the offense charged.” Fed. R. Crim.
P. 7(c)(1). “For each count, the indictment or
information must give the official or customary citation of
the statute, rule, regulation, or other provision of law that
the defendant is alleged to have violated.”
Id. An indictment satisfies Rule 7(c)(1) if it
“(1) states all the elements of the crime charged; (2)
adequately informs the defendant of the nature of the charges
so that he may prepare a defense; and (3) allows the
defendant to plead the judgment as a bar to any future
prosecutions.” United States v. White, 610
F.3d 956, 958 (7th Cir. 2010).
indictment “‘tracks' the words of a statute
to state the elements of the crime, ” it generally
suffices, and “while there must be enough factual
particulars so the defendant is aware of the specific conduct
at issue, the presence or absence of any particular fact is
not dispositive.” Id. “Indictments are
reviewed on a practical basis and in their entirety, rather
than ‘in a hypertechnical manner.'”
United States v. Smith, 230 F.3d 300, 305 (7th Cir.
2000) (quoting United States v. McNeese, 901 F.2d
585, 602 (7th Cir. 1990)). When doing so, the allegations in
the indictment are accepted as true and viewed in a light
most favorable to the government. Moore, 563 F.3d at
586; United States v. Yashar, 166 F.3d 873, 880 (7th
seeks to dismiss the indictment on a number of grounds. But
because Vaulin is in Poland and currently resisting
extradition to the United States, the Government first asks
that the Court deem him to be a fugitive and exercise its
discretion to dismiss his motion without prejudice under the
fugitive disentitlement doctrine.
Fugitive Disentitlement Doctrine
fugitive disentitlement doctrine vests courts with discretion
to dismiss a request for relief where “the party
seeking relief is a fugitive while the matter is
pending.” Degen v. United States, 517 U.S.
820, 824 (1996). The Supreme Court has explained that
[n]o persuasive reason exists why [a court] should proceed to
adjudicate the merits of a criminal case after the convicted
defendant who has sought review escapes from the restraints
placed upon him pursuant to the conviction. While such an
escape does not strip the case of its character as an
adjudicable case or controversy, we believe it disentitles
the defendant to call upon the resources of the [c]ourt for
determination of his claims.
Molinaro v. New Jersey, 396 U.S. 365, 366 (1970)
core principles animate the doctrine. First, as a practical
matter, it is difficult to enforce a judgment against a
fugitive who is, by definition, outside of the court's
reach. Degen, 517 U.S. at 824. The Seventh Circuit
has likened this principle to “mutuality, ” in
that “if [a criminal defendant] wants the United States
to be bound by a decision . . . he should be similarly
willing to bear the consequences of [that] decision.”
In re Hijazi, 589 F.3d 401, 413 (7th Cir. 2009).
Second, disentitlement “redress[es] the indignity
visited upon the District Court by [a fugitive's] absence
from the criminal proceeding, ” essentially denying the
fugitive the benefit of unclean hands. Degen, 517
U.S. at 824, 828. And, finally, the doctrine discourages
escape and promotes voluntary surrender in order to ensure
courts are respected and operate efficiently. Id.
principles, however, do not mandate invocation of the
doctrine. The Supreme Court, while “acknowledg[ing]
disquiet at the spectacle of a criminal defendant reposing
[abroad], beyond the reach of our criminal courts, while at
the same time mailing papers to the court . . . and expecting
them to be honored, ” has indicated that invoking the
doctrine to deny all relief is an extreme sanction to be
reserved only for those circumstances in which it is
warranted. Id. at 828-29.
the fugitive disentitlement doctrine originated as a response
to appeals of convicted defendants on the run, e.g.,
Molinaro, 396 U.S. at 366, the Seventh Circuit has
suggested that it can apply where a fugitive defendant seeks
to dismiss an indictment, e.g., Bokhari,
757 F.3d at 671-73 & n.7; cf. Hijazi, 589 F.3d
at 412- 14. In Hijazi, for example, the defendant
faced criminal charges in the United States stemming from
certain dealings with the U.S. Army and one of its
contractors in Kuwait. 589 F.3d at 403. Hijazi voluntarily
surrendered to Kuwaiti authorities, but Kuwait refused to
extradite him. Id. at 405. Meanwhile, Hijazi filed a
motion to dismiss the indictment through attorneys in the
United States, arguing in part that the statutes under which
he was charged did not apply extraterritorially. Id.
The district court held that the fugitive disentitlement
doctrine did not directly apply to Hijazi, given that he had
not been convicted of a crime, had never even visited the
United States, and voluntarily surrendered in Kuwait.
Id. at 406. The court nevertheless reasoned that,
because Hijazi had little to lose from filing the motion,
mutuality concerns undergirding the doctrine required that
his motion be denied and declined to enter a ruling on the
Seventh Circuit reversed. It began by explaining why a writ
of mandamus should issue to direct the district court to rule
on Hijazi's motion, observing in part that his motion
raised “importan[t] and delica[te]” questions as
to the extraterritorial reach of the statutes at issue.
Id. at 408-12. Then, addressing the fugitive
disentitlement doctrine, the court noted that Hijazi had only
set foot in the United States once for reasons unrelated to
the case. Id. at 412. Thus, in the court's view,
Hijazi “did not flee from the jurisdiction or from any
restraints placed upon him.” Id. This, in
light of Hijazi's voluntary surrender to Kuwaiti
authorities and their ability to extradite him if they so
wished, led the court to conclude that the fugitive
disentitlement doctrine did not apply. Id. at
412-13. Finally, the court held that the district court had
undervalued the adverse consequences that Hijazi would face
if he lost the motion to dismiss. Id. at 413.
Highlighting the serious risk of extradition he could face if
he ventured outside of Kuwait, the court reasoned that there
was not such a mutuality deficit that the district court
should refrain from deciding his motion. Id. at
413-14. The Seventh Circuit concluded by commenting that,
“[o]utside of the core fugitive disentitlement context,
the Supreme Court has indicated that disentitlement is
‘too blunt an instrument' to redress the indignity
of a defendant's absence.” Id. at 414
(quoting Degen, 517 U.S. at 828).
Hijazi identifies circumstances in which a court
should be wary of invoking the fugitive disentitlement
doctrine, the Seventh Circuit has more recently discussed
circumstances in which it may be proper to do so. First, in
Bokhari, the defendant faced an eight-count
indictment for an illegal scheme he perpetrated while living
in the United States. 757 F.3d at 666. He took refuge in
Pakistan, where he was also a citizen. Id. The
United States requested extradition, but the governments were
unable to reach an agreement. Id. at 666-67. United
States officials therefore secured a notice through Interpol
instructing all member states to arrest Bokhari if he entered
their jurisdiction. Id. at 667. And Bokhari, through
his attorneys, ...