                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-1360


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

FINN BATATO; BRAM VAN DER KOLK; JULIUS BENCKO; MATHIAS
ORTMANN; SVEN ECHTERNACH; KIM DOTCOM; MEGAUPLOAD LIMITED;
MEGAPAY   LIMITED;   VESTOR   LIMITED; MEGAMEDIA LIMITED;
MEGASTUFF LIMITED; MONA DOTCOM,

                 Claimants – Appellants,

           and

ALL ASSETS LISTED IN ATTACHMENT A, AND ALL              INTEREST,
BENEFITS, AND ASSETS TRACEABLE THERETO, in Rem,

                 Defendant.

-------------------------

CATO INSTITUTE; INSTITUTE FOR JUSTICE; NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS,

                 Amici Supporting Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:14-cv-00969-LO-MSN)


Argued:   March 22, 2016                    Decided:   August 12, 2016
Before GREGORY,    Chief   Judge,   and   DUNCAN   and   FLOYD,   Circuit
Judges.


Affirmed by published opinion.  Chief Judge Gregory wrote the
majority opinion, in which Judge Duncan joined.   Judge Floyd
wrote a dissenting opinion.


ARGUED:   Michael S. Elkin, WINSTON & STRAWN LLP, New York, New
York, for Appellants.       Jay V. Prabhu, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.          ON BRIEF:
Craig   C.    Reilly,    Alexandria,    Virginia,    for    Appellants;
Robb C. Adkins, San Francisco, California, Steffen N. Johnson,
Christopher E. Mills, WINSTON & STRAWN LLP, Washington,
D.C., for    Appellant    Megaupload    Limited;   David    B.   Smith,
SMITH & ZIMMERMAN, PLLC, Alexandria, Virginia, for Appellants
Julius    Bencko    and    Sven    Echternach;    Ira    P.    Rothken,
Jared R. Smith,     ROTHKEN     LAW    FIRM,    Novato,     California,
William A. Burck, Derek L. Shaffer, Stephen M. Hauss, QUINN
EMANUEL    URQUHART     &    SULLIVAN,     Washington,     D.C.,    for
Appellants Kim Dotcom and Megaupload Limited.         Dana J. Boente,
United States Attorney, G. Wingate Grant, Assistant United
States Attorney, Karen L. Taylor, Assistant United States
Attorney, Jasmine H. Yoon, Assistant United States Attorney,
Allison B. Ickovic, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia;
Ryan K. Dickey, Brian L. Levine, Senior Counsel, Computer Crime
& Intellectual Property Section, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.               Darpana Sheth,
INSTITUTE FOR JUSTICE, Arlington, Virginia, Thomas K. Maher,
NORTH CAROLINA OFFICE OF INDIGENT DEFENSE SERVICES, Durham,
North Carolina, Ilya Shapiro, CATO INSTITUTE, Washington, D.C.,
for Amici Cato Institute, Institute for Justice, and National
Association of Criminal Defense Lawyers.




                                    2
GREGORY, Chief Judge:

      The claimants in this case appeal from the district court’s

entry     of        default          judgment    for      the     government         in    a    civil

forfeiture          action       against        funds     deposited       in    the       claimants’

names in banks in New Zealand and Hong Kong.                                   Default judgment

was     entered           after        the    government          successfully            moved     to

disentitle          the    claimants         from    defending       their      claims         to   the

defendant       property             under   the    federal        fugitive      disentitlement

statute, 28 U.S.C. § 2466.                      The claimants appeal the judgment on

several grounds, most prominent among them that the district

court lacked jurisdiction over the defendant property because it

resides        in     foreign          countries,        that     fugitive       disentitlement

violates constitutional due process, and that disentitlement in

this case was improper because the claimants are not fugitives

from the law.              Finding these arguments unpersuasive, we affirm

the district court.



                                                    I.

      On January 5, 2012, a grand jury returned an indictment

against many of the claimants in this action, charging them with

criminal        copyright             infringement        and     money     laundering          “with

estimated           harm       to      copyright         holders     well       in    excess         of

$500,000,000             and    reported     income       in    excess     of    $175,000,000.”

Gov’t    Br.        4.         The    claimants’        alleged     copyright        infringement

                                                    3
scheme, dubbed the “Mega Conspiracy,” used public websites to

facilitate     the    illegal    reproduction       and     distribution     of

copyrighted    movies,     software,   television      programs,    and   music.

The government estimates that the alleged criminal conduct has

caused billions of dollars in harm to the copyright holders.

     Following       the   indictment,      the   district        court   issued

restraining orders for assets in New Zealand and Hong Kong where

most of the remaining identified proceeds resided.                    The High

Court in Hong Kong responded almost immediately by issuing a

restraining order against approximately $60 million in assets,

while New Zealand first arrested several of the now-claimants,

released them on bail, and then several months later, in April,

registered restraining orders on $15 million in assets.                      New

Zealand also scheduled extradition hearings for August 2012, but

these hearings have been continued at least eight times at the

claimants’ request.

     The     New   Zealand    restraining     orders      could    only   remain

registered for two years, after which they could be extended for

up to one year.       Recognizing that the restraints would run out

on April 18, 2014, or if extended on April 18, 2015, the United

States filed this civil forfeiture action against forty-eight

assets restrained pursuant to the criminal indictment in the

district court on July 29, 2014.             Although restraining orders

froze the assets in the lead up to this action, the New Zealand

                                       4
courts have routinely released funds to claimants for living and

legal      expenses.        Some   of    these       have     been    very    substantial,

including millions in legal fees for Kim Dotcom, and $170,000

per month for living expenses for the same claimant.

      Most     of    the    claimants      in     this       case   filed     their   claims

together on August 28, and Mona Dotcom filed a spousal claim on

September 1, 2014.           The claimants also filed a joint waiver of

notice.       The government subsequently moved to strike all the

claimants’     claims       pursuant     to     28      U.S.C.      § 2466,    the    federal

fugitive     disentitlement        statute.             On    February      27,   2015,   the

district     court     granted     the     motion       to    strike,     having      allowed

claimants to appear and present arguments on the motion but not

on   the    merits     of   the    case.          The    government       then    moved   for

default judgment, which the district court granted on March 25,

2015, issuing forfeiture orders for the assets in New Zealand

and Hong Kong.         United States v. All Assets Listed in Attachment

A, 89 F. Supp. 3d 813 (E.D. Va. 2015).

      Claimants timely noted this appeal.



                                            II.

      The     claimants’      first      challenge           to     the   district      court

judgment contests that court’s in rem jurisdiction over assets

in foreign countries.              The claimants make essentially several

arguments which we will address in turn:                             first, the statute

                                              5
cited by the district court as establishing its jurisdiction

speaks to venue rather than jurisdiction; second, that if that

statute is jurisdictional, the case must still be justiciable,

meaning the district court must have sufficient control over the

res to render a binding opinion effecting title; and finally,

that jurisdiction was improper because the district court did

not   have    sufficient   minimum        contacts   with   the    defendant

property.

                                     A.

      The district court asserted in rem jurisdiction pursuant to

28 U.S.C. § 1355(b)(2). 1     There is a potential split in the



      1For convenience,     the   relevant      portions    of    § 1355   are
reproduced here:

      (a) The district courts shall have original jurisdiction,
      exclusive of the courts of the States, of any action or
      proceeding for the recovery or enforcement of any fine,
      penalty, or forfeiture, pecuniary or otherwise, incurred
      under any Act of Congress, except matters within the
      jurisdiction of the Court of International Trade under
      section 1582 of this title.

      (b) (1) A forfeiture action or proceeding may be brought
              in--

               (A) the district court for the district in which
               any of the acts or omissions giving rise to the
               forfeiture occurred, or

               (B) any other district where venue for the
               forfeiture action or proceeding is specifically
               provided for in section 1395 of this title or any
               other statute.

(Continued)
                                     6
circuit courts regarding how to interpret subsection (b):      the

Second Circuit has held that it merely makes venue proper in

certain courts, while the Third, Ninth, and D.C. Circuits have

held that it establishes jurisdiction in those courts. 2       The

district court adopted the majority approach, and we affirm that

decision.




            (2) Whenever property subject to forfeiture under the
            laws of the United States is located in a foreign
            country, or has been detained or seized pursuant to
            legal process or competent authority of a foreign
            government, an action or proceeding for forfeiture may
            be brought as provided in paragraph (1), or in the
            United States District court for the District of
            Columbia.

                               * * *

    (d) Any court with jurisdiction over a forfeiture action
    pursuant to subsection (b) may issue and cause to be served
    in any other district such process as may be required to
    bring before the court the property that is the subject of
    the forfeiture action.
    2  There is only a “potential” split because the Second
Circuit may have reversed itself following its decision in
United States v. All Funds on Deposit in Any Accounts Maintained
in Names of Meza or De Castro, 63 F.3d 148 (2d Cir. 1995). As
the district court noted, a year after Meza the Second Circuit
described § 1355(b) as an amendment “to provide district courts
with in rem jurisdiction over a res located in a foreign
country.”   United States v. Certain Funds Contained in Account
Numbers 600-306211-006, 600-306211-011 & 600-306211-014 Located
at Hong Kong & Shanghai Banking Corp., 96 F.3d 20, 22 (2d Cir.
1996).   This language appears to at least abrogate Meza in the
Second Circuit.    If so, adopting the reasoning in Meza here
would actually create a split between this Court and the Second,
Third, Ninth, and D.C. Circuits.


                                 7
       “Under    the     traditional       paradigm,          ‘the    court     must      have

actual    or    constructive    control         over      the   res    when     an   in    rem

forfeiture suit is initiated.’”                     United States v. Approximately

$1.67 Million, 513 F.3d 991, 996 (9th Cir. 2008) (quoting United

States v. James Daniel Good Real Prop., 510 U.S. 43, 58 (1993)).

The question is whether § 1355—particularly the 1992 amendments

which added subsections (b) and (d), authorizing district courts

to   issue      process    against    property            outside     their     districts—

effectively dispenses with this traditional requirement.                             In the

only circuit opinion to so hold, the Second Circuit said it does

not do so with respect to property outside the United States.

United States v. All Funds on Deposit in Any Accounts Maintained

in Names of Meza or De Castro, 63 F.3d 148, 152 (2d Cir. 1995).

The Meza court read § 1355(b) to make venue proper in cases

involving foreign property where the district court had control

over   that     property.      Id.    at    151       (“Section       1355(b)    addresses

venue in forfeiture actions . . . .”).                          While subsection (d)

establishes      legal    control     over          property    located       outside      the

court’s    jurisdiction      but     inside         the   United      States,    the      Meza

court held that a showing of control was still required for

property outside the United States.                   Id. at 152.

       This    interpretation      fails        a    closer     textual   analysis         and

runs contrary to the legislative history of the 1992 amendments.

By its own terms, § 1355(d) only applies to “[a]ny court with

                                            8
jurisdiction      over     a    forfeiture         action     pursuant     to    subsection

(b).”      § 1355(d)       (emphasis          added).         The     plain     meaning    of

§ 1355(d),    therefore,            renders    the    Meza     court’s        finding     that

“[s]ection     1355(b)          addresses          venue”     impossible—courts           may

acquire jurisdiction by operation of the provision.                             Although it

would be clearer still for § 1355(b) to explicitly state its own

jurisdictional       nature,          rather       than      merely     saying     that     a

“forfeiture       action       or    proceeding       may     be     brought     in”    those

district courts it describes, the plain meaning of that language

in the context of the entire statute is unmistakable.

     The   Meza     court’s         interpretation,          urged    by   the    claimants

here, also runs contrary to the legislative history of the 1992

amendments.       When the amendments were introduced in the Money

Laundering     Improvements            Act,        Senator     D’Amato        included     an

explanatory       statement          indicating        that        subsection     (b)     was

intended     to     provide          the      federal        district         courts     with

jurisdiction over foreign property:

     Subsection (b)(2) addresses a problem that arises
     whenever property subject to forfeiture under the laws
     of the United States is located in a foreign country.
     As mentioned, under current law, it is probably no
     longer necessary to base in rem jurisdiction on the
     location of the property if there have been sufficient
     contacts with the district in which the suit is filed.
     See United States v. $10,000 in U.S. Currency[, 860
     F.2d 1511 (9th Cir. 1988)]. No statute, however, says
     this, and the issue has to be repeatedly litigated
     whenever a foreign government is willing to give
     effect to a forfeiture order issued by a United States
     court and turn over seized property to the United

                                               9
        States if only the United States is able to obtain
        such an order.

        Subsection (b)(2) resolves this problem by providing
        for jurisdiction over such property in the United
        States District Court for the District of Columbia, in
        the district court for the district in which any of
        the acts giving rise to the forfeiture occurred, or in
        any other district where venue would be appropriate
        under a venue-for-forfeiture statute.

137   Cong.    Rec.    S16640-01     (Nov.       13,       1992)    (statement     of   Sen.

D’Amato).       The Meza court acknowledged, but did not analyze,

this evidence of legislative history, which clearly weighs in

favor     of   affirming      the    district          court’s       interpretation      of

§ 1355.

      Because the plain meaning of the statutory text and the

legislative         history   both     support          finding       that    28    U.S.C.

§ 1355(b)      is    jurisdictional,        we    affirm       the    district     court’s

holding to that effect.             The district court was also correct to

find that jurisdiction would lie if any of the acts resulting in

the forfeiture action occurred within its jurisdiction.                                 The

court noted that the civil complaint and the related criminal

indictment      allege    that      there    was       a    conspiracy       between    the

indicted parties and that they used “over 525 servers located

within the Eastern District of Virginia.”                          All Assets Listed in

Attachment A, 89 F. Supp. 3d at 823 (footnote omitted).                                  The

government furthermore contends, and the claimants do not deny,

that the cost of using those servers ran into the “tens of



                                            10
millions of dollars over a period of years.”                  Gov’t Br. 18.

This easily satisfies the relatively low standard set forth in

§ 1355, and so we affirm the district court’s finding that it

had jurisdiction under the statute.

                                       B.

     The     claimants    next    argue     that   the    district    court’s

forfeiture    order    amounts    to    a   nonbinding    advisory    opinion

because foreign sovereigns must honor that order for it to have

any effect on title to the res.                The argument rests on two

overlapping but distinguishable premises.                The first is that

principles    of    admiralty    law   which   usually    predicate   in   rem

jurisdiction on the court’s control of the res apply equally to

this case.     This argument relies principally on our decisions in

R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999)

[hereinafter Titanic I], and R.M.S. Titanic, Inc. v. The Wrecked

& Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006) [hereinafter

Titanic II].       The claimants’ second premise is that Article III

of the U.S. Constitution will not tolerate courts asserting in

rem jurisdiction without “exclusive             custody and     control” of

the res because such courts cannot “adjudicate rights . . .

binding against the world,” see Titanic I, 171 F.3d at 964, but

are instead limited to rendering advisory opinions “subject to

revision” by other governments, see Nashville, C. & St. L. Ry v.

Wallace, 288 U.S. 249, 261-62 (1933).

                                       11
        This    is    essentially            the        same        “lack-of-control”        attack

claimants launched against § 1355 as just discussed, but they

attempt to reframe the argument as addressing more fundamental

issues.

                                                   i.

       The     claimants’        first       argument          fails    because      it    confuses

principles       of   admiralty         law       for    principles        of   constitutional

law.      Both    Titanic        I    and    Titanic           II    describe   jurisdictional

principles governing admiralty courts and the law of the sea.

The two crucial distinctions between these cases and the one

before us are (1) that the Titanic cases based jurisdiction on

the common law of admiralty whereas this case relies on § 1355,

and (2) the Titanic cases involved a salvage and so no court

could assert jurisdiction through exclusive control of the res,

but    here    the    res    resides         in    two     sovereign       nations        that   are

cooperating with federal authorities from this country regarding

the assets in question.

       The claimants fail to acknowledge the most glaring problem

with their reliance on Titanic I and Titanic II:                                          the cases

speak     explicitly        in       terms    of        the     jurisdictional        limits     of

admiralty       courts      pursuant         to    “the        common    law    of   the     seas.”

Titanic I, 171 F.3d at 960-61 (“Thus, when we say today that a

case in admiralty is governed by the general maritime law, we

speak through our own national sovereignty and thereby recognize

                                                   12
and acquiesce in the time-honored principles of the common law

of the seas.”).

      “Maritime      law    . . .      provides     an    established             network    of

rules    and   distinctions         that   are    practically           suited       to     the

necessities of the sea,” United States v. W.M. Webb, Inc., 397

U.S. 179, 191 (1970), and as one of our sister circuits has

noted, “The general statute governing forfeiture actions states

that ‘[u]nless otherwise provided by Act of Congress . . . in

cases of seizures on land the forfeiture may be enforced by a

proceeding in libel which shall conform as near as may be to

proceedings     in    admiralty,’”         United       States     v.       All    Funds     in

Account Nos. 747.034/278, 747.009/278, & 747.714/278 in Banco

Espanol de Credito, Spain, 295 F.3d 23, 26 (D.C. Cir. 2002)

(quoting 28 U.S.C. § 2461(b)).               But of course, there is another

statute—§ 1355—guiding           the     action     here,        and        we    have     just

described how that statute confers jurisdiction on the district

court.     Thus, absent the amendments to § 1355, there might be

“little    doubt     that    traditional        rules    of   in       rem       jurisdiction

developed under admiralty law would apply,” id., but as things

stand there can be no doubt that § 1355 must prevail.                               As such,

the     cooperation     (or      lack    thereof)        of   foreign            nations     in

enforcing any of the district court’s orders “determines only

the   effectiveness         of   the    forfeiture       orders        of    the    district



                                           13
courts, not their jurisdiction to issue those orders.”                       Id. at

27.

      Finally,     on     this    point,    we   note    that    admiralty      cases

involving salvages on the high seas (like the Titanic cases)

necessarily      involve    difficult       questions     of    previously      owned

property lost in shared international waters where no nation has

sovereignty.       Our opinion in Titanic I was crafted “to ensure

that the conclusion that no nation has sovereignty through the

assertion of exclusive judicial action over international waters

does not leave the high seas without enforceable law.”                    171 F.3d

at 968.     These questions are not at issue here and there is no

need to plumb their depths as the claimants invite us to do.

Instead,    we    turn     to    the    question   of    justiciability         which

involves related issues of control.

                                           ii.

      The claimants here argue that the district court is without

jurisdiction because, without control of the res, it can only

advise    the    courts    of    New   Zealand   and    Hong    Kong   rather    than

disposing of the issues presented.               It is among “the oldest and

most consistent thread[s] in the federal law of justiciability

. . . that the federal courts will not give advisory opinions,”

Flast v. Cohen, 392 U.S. 83, 96 (1968) (quotations omitted), and

there are numerous cases holding that judicial decisions may not

be rendered if they would be subject to revision by another

                                           14
branch of government, e.g., Chicago & S. Airlines Co., 333 U.S.

103,    113-14    (1948).       But       this      principle   addresses    itself      to

maintaining the separation of powers between the branches of our

own government, not to concerns of sovereignty or international

comity.       See Courtney J. Linn, International Asset Forfeiture

and the Constitution:               The Limits of Forfeiture Jurisdiction

over Foreign       Assets    Under        28   U.S.C.    § 1355(b)(2),      31    Am.   J.

Crim.    L.   251,    297-98    (2004)         (collecting      numerous    cases,      all

addressing only revision by other branches of the United States

government).

       For a court to hear a case “it must be ‘likely,’ as opposed

to merely ‘speculative,’ that the injury will be redressed by a

favorable decision.”           Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992) (quotations omitted).                     We need to not wade into the

potentially thorny issues raised by claimants because this case

meets the test articulated in Lujan—the foreign sovereigns have

cooperatively detained the res by issuing orders restraining the

defendant property pursuant to this litigation.                      By showing that

the res was placed in custody in New Zealand and Hong Kong based

on the district court’s order, JA 468-69, the government has

demonstrated that it is likely, rather than speculative, that

these    courts      will   honor     a    forfeiture      order   from     the   United

States.       While the claimants repeatedly point to foreign court



                                               15
releases of restrained funds, these simply do not prove that an

order of forfeiture is unlikely to be honored.

       The district court, also in reliance on the cooperation of

Hong Kong and New Zealand, concluded its opinion would not be

advisory and that the court is capable of redressing the issue.

We affirm that decision.

                                     C.

       The claimants next seek to challenge the district court’s

assertion of jurisdiction under the Due Process Clause of the

Fifth Amendment.         They argue that, regardless of any statute

passed by Congress, a federal court cannot assert jurisdiction

unless it is established that the defendant meets the “minimum

contacts” test articulated by International Shoe v. State of

Washington, Office of Unemployment Compensation & Placement, 326

U.S. 310 (1945) and its progeny, citing Harrods Ltd. v. Sixty

Internet Domain Names, 302 F.3d 214, 224 (4th Cir. 2002).                 The

district court held that the statute’s requirement that this

kind of in rem action be brought in “the district court for the

district in which any of the acts or omissions giving rise to

the    forfeiture   occurred,”   § 1355(b)(1)(A),     “serve[d]    much   the

same    function    as   the   minimum    contacts   test”   and   therefore

analyzed only that question.        J.A. 1963 n.10.     While we disagree

with the district court’s analytical approach, its conclusion

that the facts supporting statutory jurisdiction also establish

                                     16
sufficient       contacts      to    meet        due    process,      in     this    case,    is

affirmed.

       While     Congress        has        substantial             power     to     set     the

jurisdiction      of     the    federal        courts,        the    Due     Process    Clause

limits that power.             The exact contours of that limitation are

not entirely clear.            In Shaffer v. Heitner, 433 U.S. 186 (1977),

the    Supreme    Court       held     “that      all     assertions         of    state-court

jurisdiction must be evaluated according to the standards set

forth in International Shoe and its progeny.”                               433 U.S. at 212.

The    Court’s     insight       was       that        “the   relationship          among    the

defendant,       the    forum,       and    the        litigation,      rather       than    the

mutually exclusive sovereignty of the States on which the rules

of Pennoyer [v. Neff, 95 U.S. 714 (1878)] rest, [had become] the

central concern of the inquiry into personal jurisdiction,” and

that similar concerns should govern in rem jurisdiction.                                Id. at

204.    The Court rejected the narrow theory that in rem actions

were   strictly        actions      against       property,         concluding       that    “in

order to justify an exercise of jurisdiction in rem, the basis

for    jurisdiction       must       be     sufficient         to     justify       exercising

jurisdiction over the interests of persons in a thing.”                                Id. at

207 (quotation marks omitted).                    Thus the appeal of applying the

minimum contacts test in in rem cases.

       The Court’s decision in Shaffer, however, emerged from a

case   that    might     be    viewed       as    the     inverse      of    what    § 1355(b)

                                                 17
contemplates:         the property at issue was stock in a Delaware

corporation that was, by virtue of state law, legally sited in

the state of Delaware, while the owners of that stock had no

other ties to the state.             The Court determined that, despite the

property being legally located in the state, the owners of that

stock had insufficient contacts with Delaware for courts there

to   invoke     quasi    in     rem    jurisdiction         over    the    underlying

shareholder’s        derivative      suit.      Id.    at   213.     But    § 1355(b)

contemplates something completely different—a federal district

court asserting in rem jurisdiction over property (which, in

contrast   to    Shaffer,       is    central     to    the   forfeiture      action)

located outside the forum.

      Given that Shaffer provides only limited guidance as to how

to   proceed    in    this    case,   we     assume    without     deciding    that    a

traditional,         state-based        minimum        contacts      approach         is

appropriate in this case, 3 as posited by the claimants.                      Applying


      3“Because the United States is a distinct sovereign, a
defendant may in principle be subject to the jurisdiction of the
courts of the United States but not of any particular State.
This is consistent with the premises and unique genius of our
Constitution.”   J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S.
873, 884 (2011).     Given this principle, and based on the
interplay between Federal Rules of Civil Procedure 4(k)(1)(C)
and 4(k)(2), it has been held elsewhere that statutes expanding
a district court’s jurisdiction to the entire country may
transform the minimum contacts test into a “national contacts”
test.   See Graduate Mgmt. Admission Council v. Raju, 241 F.
Supp. 2d 589, 597 (E.D. Va. 2003) (“Rule 4(k)(2) was added in
1993 to deal with a gap in federal personal jurisdiction law in
(Continued)
                                           18
that   test   we    find    that    the        contacts     are    sufficient      and    due

process is not violated by the district court’s assertion of

jurisdiction.

       As in other cases we have decided in which websites and web

transactions have been the asserted basis for jurisdiction, we

will   analyze     the     minimum       contacts         question    by    applying      the

factors    commonly        used      for        determining        specific        personal

jurisdiction:        “(1)     the    extent         to    which    the     defendant      has

purposefully       availed    itself       of       the    privilege       of   conducting

activities    in    the    state;        (2)    whether      the   plaintiffs’       claims

arise out of those activities directed at the state; and (3)

whether    the      exercise        of     personal         jurisdiction          would    be

constitutionally         ‘reasonable.’”              Carefirst       of    Md.,    Inc.    v.

Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397 (4th Cir.

2003).




situations where a defendant does not reside in the United
States, and lacks contacts with a single state sufficient to
justify personal jurisdiction, but has enough contacts with the
United   States  as   a  whole   to  satisfy   the  due  process
requirements.”); see also Sec. Inv’r Prot. Corp. v. Vigman, 764
F.2d 1309, 1315 (9th Cir. 1985); F.T.C. v. Jim Walter Corp., 651
F.2d 251, 256 (5th Cir. 1981); cf. ESAB Grp., Inc. v. Zurich
Ins. PLC, 685 F.3d 376, 391 n.8 (4th Cir. 2012) (declining to
assess nationwide contacts pursuant to Rule 4(k)(2) because
state long-arm statute authorized jurisdiction).         It may
therefore be possible for such a test to substitute in in rem
actions like this one.    Finding no need to rely on this test,
however, we decline to express an opinion on the matter.


                                               19
      As already mentioned, both the forfeiture complaint and the

criminal indictment allege that 525 servers located within the

Eastern District of Virginia were used in furtherance of the

Mega Conspiracy.          All Assets Listed in Attachment A, 89 F. Supp.

3d at 823.     The government further alleges, and the claimants do

not   dispute,      that    these    servers      were    “operated       and    closely

controlled” by the claimants “at a cost of tens of millions of

dollars over a period of years.”                  Gov’t Br. 18.           We find that

such contacts are sufficient to show the claimants “purposefully

availed [themselves] of the privilege of conducting activities

in the state.”       See Carefirst, 334 F.3d at 397.

      The    claimants       argue,        however,      that     “this     Court      has

repeatedly     dismissed      ‘as    “de     minimis”     the     level    of    contact

created by the connection between an out-of-state defendant and

a web server located within a forum.’”                     Appellants’ Br. 17-18

(quoting     Carefirst,      334    F.3d    at   402).         Besides    not    being    a

binding rule of general applicability, the particular facts of

this case warrant a different outcome than otherwise might be

true.     The quote they rely on is an unfortunate paraphrasing in

our Carefirst opinion of a discussion contained in a footnote of

another     case,   Christian       Science      Board    of    Directors       of   First

Church of Christ, Scientist v. Nolan, 259 F.3d 209 (4th Cir.

2001).      In Nolan we went to some lengths to note that we were

not   deciding      the    effect     an    in-forum      server     might      have     on

                                            20
jurisdiction as the case did not present those facts—the server

involved    was    operated         in    California,       not    the      forum        state   of

North   Carolina.             Id.    at    217      n.9.        The       Carefirst       opinion

therefore     fails      to    adequately           capture     the       impact    of      Nolan.

Carefirst    also       does    not      purport      to   state      a    rule     of    general

application, nor could it given that the reference is contained

in dicta—Carefirst, like Nolan, did not involve an in-forum web

server and so the Court had no opportunity to address the effect

such    a   server      might       have       on    the   jurisdictional              question.

Carefirst, 334 F.3d at 402 (“NetImpact merely facilitated the

purchase    of     CPC’s      domain      names      and   rented         CPC   space       on   its

servers—which in fact were located not in [the forum state of]

Maryland, but in Massachusetts.”).

       More to the point, this case does not involve a single

server that happened to reside in the forum state.                                 It involves

hundreds     of    servers,         closely         controlled        by    the     claimants,

representing       an    investment         of      tens   of    millions         of     dollars.

Moreover, whereas Carefirst and Nolan involved conspiracies in

which a website was used to fraudulently solicit contributions

from individuals, the type of conspiracy alleged in this case

makes the servers a much more integral aspect of the crime.                                      The

alleged     Mega    Conspiracy           was   a    file-sharing           scheme      in    which

copyrighted files were illegally transferred to users around the

world through the servers located in Ashburn, Virginia.                                          The

                                               21
volume of data involved, while not disclosed in briefs to this

Court, would necessarily have been orders of magnitude greater

than that involved in Carefirst and Nolan.                     In those cases the

defendants were alleged to be using the Internet to commit a

traditional sort of fraud, and we decided the more important

activity was “creating and updating the . . . website.”                            See

Nolan, 259 F.3d at 217 n.9.             Here, the servers themselves held

and allowed the transfer of the copyrighted material—they were

the central conduit by which the conspiracy was conducted.                        The

location of a substantial number of the servers in Virginia is

clearly enough to demonstrate purposeful availment.

       The second factor, whether the plaintiffs’ claims arise out

of those activities directed at the state, is easily met:                         the

forfeiture      action    before     this    Court    arises    from   the   alleged

illegal transfer of files conducted using the servers located in

Virginia.

       The   third    factor,   constitutional         reasonableness,       is   also

met.     To determine constitutional reasonableness, we look at

“the   burden    on   the   defendant,       the     forum   State’s   interest    in

adjudicating the dispute, the plaintiff’s interest in obtaining

convenient      and      effective     relief,        the    interstate      judicial

system’s interest in obtaining the most efficient resolution of

controversies, and the shared interest of the several States in

furthering      fundamental     substantive        social    policies.”       Burger

                                            22
King   Corp.    v.     Rudzewicz,         471    U.S.          462,    477       (1985)       (quoting

World-Wide      Volkswagen         Corp.    v.       Woodson,          444       U.S.     286,     292

(1980))    (internal        quotation       marks         omitted).              This     factor    is

largely used to police for exploitation of jurisdictional rules

and ensure that defending a suit is not “so gravely difficult

and    inconvenient         that     a     party          unfairly          is     at     a    severe

disadvantage      in       comparison      to        his       opponent.”            Id.      at   478

(quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18

(1972)) (internal quotation marks omitted).                                  The claimants do

not argue that Virginia is any less convenient than any other

available forum, and we perceive no evidence that the government

filed where it did for any untoward purpose.



                                            III.

       The district court ordered the claimants disentitled from

defending claims to the defendant property pursuant to the Civil

Asset Forfeiture Reform Act of 2000 (“CAFRA”), 28 U.S.C. § 2466.

The effect of the order was to prevent the claimants from using

the U.S. courts to defend their claims to the property.                                            The

claimants      argue       that    this    application                of    28     U.S.C.      § 2466

violates    the      Due    Process       Clause          of    the        Fifth    Amendment       by

stripping      them    of    their       right       to    be    heard.            The    claimants

present arguments closely tracking those rejected by the Second

Circuit in Collazos v. United States, 368 F.3d 190, 202-05 (2d

                                                23
Cir.    2004).       The       district       court    effectively              adopted     the

reasoning of that case, holding that the claimants had waived

the due process rights they claimed were violated by operation

of § 2466.       All Assets Listed in Attachment A, 89 F. Supp. 3d at

832 n.21.     We now affirm the district court’s decision.

                                             A.

       Fugitive    disentitlement            began     as     a        judicial       doctrine

allowing      appellate    courts       to     dismiss      appeals        from       criminal

fugitives who failed to surrender to authorities, holding that

such    failure    “disentitles         the       defendant        to     call       upon   the

resources of the Court for determination of his claims.”                                    See

Molinaro v. New Jersey, 396 U.S. 365, 365-66 (1970).                                 Prior to

1996,   the    courts     of    appeals       were    split       on    the     question     of

whether fugitive disentitlement would also “allow a court in a

civil   forfeiture       suit    to    enter       judgment       against        a    claimant

because he is a fugitive from, or otherwise is resisting, a

related criminal prosecution.”                Degen v. United States, 517 U.S.

820, 823 (1996) (citing as examples United States v. Eng, 951

F.2d 461 (2d Cir. 1991) (extending fugitive disentitlement to

civil forfeiture); United States v. $40,877.59 in U.S. Currency,

32   F.3d   1151   (7th    Cir.       1994)       (declining      to     extend       fugitive

disentitlement      to     civil      forfeiture);          and        United     States     v.

$83,320 in U.S. Currency, 682 F.2d 573 (6th Cir. 1982) (same)).



                                             24
      In 1996, the U.S. Supreme Court struck a federal district

court’s    use      of     disentitlement          to        strike   a    civil      forfeiture

claimant’s defense on the grounds that he was a fugitive evading

related criminal charges.                   Id.     at 828.          The Court was clearly

conflicted       over      the     interests           presented      by     the     disentitled

party, the government seeking forfeiture, and the district court

itself.        It noted that “[t]he need to redress the indignity

visited    upon      the      District      Court       by    Degen’s      absence     from    the

criminal proceeding, and the need to deter flight from criminal

prosecution         by     Degen      and     others”          were     both       “substantial”

interests.          Id.          It   also     “acknowledge[d]             disquiet      at    the

spectacle      of    a     criminal         defendant         reposing       in     Switzerland,

beyond the reach of our criminal courts, while at the same time

mailing    papers        to    the    court       in     a    related      civil     action    and

expecting them to be honored.”                          Id.     On the other hand, the

Court    was    even      more     concerned           that   “too    free     a    recourse    to

rules” such as disentitlement that “foreclose[e] consideration

of claims on the merits” might “disserve the dignitary purposes

for which [they are] invoked,” eroding respect for the courts.

Id.     It concluded that “[a] court’s inherent power is limited by

the necessity giving rise to its exercise” and that “[t]here was

no necessity to justify the rule of disentitlement in [that]

case.”    Id. at 829.



                                                  25
       In     the      course       of     that       opinion,        the     Supreme         Court

acknowledged         that     the       answer     might       be     different        if     civil

disentitlement were authorized by statute.                                 Id. at 828.           The

Court    expressly         left     open    the       question       of    such    a    statute’s

constitutionality.            Id.       It was against this backdrop that CAFRA

was enacted by Congress, and this appeal presents this Court

with its first opportunity to pass upon that open question.

                                                 B.

       The     claimants        argue      that       the     district       court      was     not

constitutionally           authorized       to    disentitle         them     from      defending

their       property       claims        against       the     government’s            forfeiture

action,       regardless      of    any     statute         passed    by    Congress.           They

argue that “[t]he fundamental requirement of due process is the

opportunity to be heard,” Doolin Sec. Sav. Bank, FSB v. FDIC, 53

F.3d     1395,      1402    (4th     Cir.    1995)          (quotations       omitted),         that

disentitlement violates this precept, and that Degen confirms

their position.

       To     begin,    much       of    Degen’s       reasoning          declaring      judicial

disentitlement          unconstitutional              centered       on    balance-of-powers

concerns eliminated by the congressional authorization manifest

in   §      2466.       The     Degen      Court       noted     that       “[p]rinciples         of

deference counsel restraint in resorting to inherent power,” 517

U.S.     at    820     (emphasis         added),       and     that       “[t]he       extent     of

[inherent       judicial]       powers      must       be    delimited       with      care,     for

                                                 26
there      is    a     danger      of     overreaching          when    one   branch     of     the

Government, without benefit of cooperation or correction from

the others, undertakes to define its own authority,” id. at 823.

It   went       on     to       expressly      convey      that    were     Congress     or     the

Executive         involved,         the       analysis      would      differ:         “In     many

instances the inherent powers of the courts may be controlled or

overridden by statute or rule.”                           Id.     We believe this is one

such instance.

      But       more        to    the    point,      the     claimants’       argument       fails

primarily because § 2466 does not eliminate “the opportunity to

be heard.”           Id. (emphasis added).                The guarantees of due process

do   not    mean       that       “the    defendant        in   every     civil   case       [must]

actually have a hearing on the merits.”                             Boddie v. Connecticut,

401 U.S. 371, 378 (1971).                      “What the Constitution does require

is an opportunity . . . granted at a meaningful time and in a

meaningful manner, for a hearing appropriate to the nature of

the case.”             Id. (internal quotations omitted); see also James

Daniel     Good,        510      U.S.    at    48    (“Our      precedents     establish        the

general         rule    that       individuals           must     receive     notice     and    an

opportunity to be heard before the Government deprives them of

property.”).                A    party’s      failure      to   take     advantage      of     that

opportunity waives the right it secures.                               See Boddie, 401 U.S.

at 378-79.



                                                    27
      The   government    points   out    that    courts      regularly    impose

procedural requirements that will control when and how a party

may be heard, including requiring that an appearance be made in

court.      See id. (“A State, can, for example, enter a default

judgment against a defendant who, after adequate notice, fails

to make a timely appearance . . . .”).                  As was true of the

claimant in Collazos, the claimants here “could have secured a

hearing on [their] forfeiture claim any time . . . simply by

entering the United States.”        368 F.3d at 203.          They declined to

do so.

      While the claimants correctly respond that § 2466 is no

mere procedural requirement, their argument actually underscores

the   justification      for    disentitlement      pursuant      to    statute.

Whereas entering default judgment against a party for failure to

meet a nonsubstantive requirement might produce the same result

as in Degen, the refusal to face criminal charges that would

determine whether or not the claimants came by the property at

issue illegally supports a presumption that the property was,

indeed, so obtained.       Id. at 203-04.        The very logic of fugitive

disentitlement    is     that   refusal   to     face   and    defend     against

charges, particularly in criminal court where procedural rights

and the presumption of innocence favor the defendant, is “but an

admission of the want of merit in the asserted defense.”                      See

Hammond Packing Co. v. Arkansas, 212 U.S. 322, 351 (1909).                    And

                                     28
the Supreme Court has long approved the power of the legislature

to authorize dismissal on the creation of such a presumption.

Id.

      The distinction is made clearer by reviewing one of two

nineteenth-century cases on which the claimants unsuccessfully

rely, Hovey v. Elliott, 167 U.S. 409 (1897). 4                 In that case the

trial court used disentitlement as a punishment:                       it held the

defendants in contempt for failure to deposit funds in the court

registry pursuant to its order, and it punished them by striking

their answer and entering default judgment against them.                       Id. at

411-12.      The Supreme Court reversed, noting as axiomatic that

courts      must   pursue     and   render     justice      rather     than    acting

arbitrarily        and      becoming     “instrument[s]        of      wrong      and

oppression.”       Id. at 413-14.

      But     in   Hammond     Packing        the   Court    distinguished        the

situation in Hovey from one where a party creates an adverse

presumption against itself.            212 U.S. at 349-50.           The Court held



      4The claimants also rely on McVeigh v. United States, 78
U.S. 259 (1870), but that case is simply inapposite.         It
involved the government’s seizure of property from a former
Confederate officer whose claim and answer were struck because,
the trial court held, he was an enemy alien and could not seek
relief in federal court.      78 U.S. at 261.   But “while Mr.
McVeigh could not undo his past support for the Confederacy in
order to obtain a hearing on his confiscation claim,” Collazos,
368 F.3d at 203, claimants here have had every opportunity to
come into court and be heard.



                                         29
that in the latter an answer may rightly be stricken and default

judgment entered because it is not an arbitrary punishment but

the inevitable result of that presumption.                         Id. at 350-51 (“The

proceeding here taken may therefore find its sanction in the

undoubted right of the lawmaking power to create a presumption

of fact as to the bad faith and untruth of an answer to be

gotten    from    the    suppression         or    failure    to    produce      the    proof

ordered, when such proof concerned the rightful decision of the

cause.”).        In such a case, “the sanction is nothing more than

the   invocation        of   a   legal      presumption,      or    what    is    the    same

thing, the finding of a constructive waiver.”                         Ins. Corp. of Ir.

v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982).

      We make two final notes in support of our decision.                              First,

there can be no doubt that the claimants’ waiver was knowing.

Section 2466 leaves the application of disentitlement to the

court’s     discretion,          see    § 2466(a)      (using       “may”     instead      of

“shall”), and in this case, the claimants were given a full

opportunity to resist its application.                     Given their lengthy, and

apparently        expensive,           intransigence         with     regard       to     the

underlying       controversy,          it   cannot    be     argued    that      they    were

unaware of the statute’s consequences and therefore unable to

waive.     Cf. United States v. Eng, 951 F.2d 461, 466 (2d Cir.

1991), abrogated by Degen, 517 U.S. 820 (“The doctrine operates



                                              30
as a waiver by a fugitive of his due process rights in related

civil forfeiture proceedings.”).

      Second, we are not certain that Degen cast as wide a net as

the   claimants     argue.         In       that   decision,    the   Supreme     Court

concluded that “[t]here was no necessity to justify the rule of

disentitlement in this case,” 517 U.S. at 829 (emphasis added),

and we have interpreted the opinion to mean only that courts

acting on inherent authority “[can]not rely on the fugitive from

justice doctrine to dismiss a civil forfeiture action merely

‘because    [the    party]      is      a    fugitive   from,    or   otherwise     is

resisting, a related criminal prosecution,’” Jaffe v. Accredited

Sur. & Cas. Co., 294 F.3d 584, 596 (4th Cir. 2002) (emphasis

added) (quoting Degen, 517 U.S. at 823).                   These opinions appear

to leave open the possibility that different circumstances could

more readily justify disentitlement, statutory or otherwise.

      In   this    case,     the     claimants       readily    concede    that    the

property   at     issue    is   being        spent   rapidly,    despite    numerous

orders attempting to restrain it.                  The government can therefore

show a need, in this case, to use more extreme measures.                           Cf.

James Daniel Good, 510 U.S. at 62 (holding that to show “exigent

circumstances” sufficient to justify seizure of real property

without notice or hearing the government must “show that less

restrictive measures—i.e., a lis pendens, restraining order, or

bond—would not suffice to protect the Government’s interests in

                                              31
preventing the sale, destruction, or continued unlawful use of

the real property”).              And the facts here are distinguishable

from    those    in   Degen,      most   notably   in   that    the    property      is

located outside the United States, complicating jurisdiction and

the district court’s ability to resolve these important issues.

We have no need to re-open the debate on judicial disentitlement

at    this   time.     But     these     differences    help    demonstrate         that

notions of due process are not so rigid that they cannot be

adapted in light of a party’s clear intent to use procedural

guarantees to avoid substantial justice.

       As    § 2466    predicates        disentitlement        on     an     allowable

presumption that a criminal fugitive lacks a meritorious defense

to a related civil forfeiture, we find it does not violate the

Due    Process    Clause     of    the    Fifth    Amendment    and        affirm   the

district court’s decision.



                                          IV.

       Having established the constitutionality of § 2466, we now

proceed to review its application in this case.                       The claimants

principally challenge the district court’s finding that each of

them is a fugitive from law as defined by the statute.                               We




                                          32
address two 5 of their arguments:                 first, that § 2466 defines a

fugitive      as   a   person    whose   “sole”        or   “principal”       reason    for

remaining       outside    the     United    States         is    to      avoid   criminal

prosecution, and so the district court erred in adopting a lower

“specific intent” standard; and second, that even if § 2466 only

requires specific intent, the government has failed to prove the

claimants intended to avoid the United States at all.

        Finding none of their arguments persuasive, we affirm the

decision of the district court.

                                            A.

        The intent standard established by § 2466 is an issue of

first       impression    in     this    Court.         We       review     questions    of

statutory interpretation de novo.                      United States v. Ide, 624

F.3d 666, 668 (4th Cir. 2010).

        A person is a fugitive subject to disentitlement if he or

she,

        (1) after notice or knowledge of the fact that a
        warrant   or   process   has  been   issued   for   his
        apprehension, in order to avoid criminal prosecution--

              (A) purposely        leaves        the   jurisdiction          of   the
              United States;

              (B) declines to enter or reenter the United States
              to submit to its jurisdiction; or

        5
       The claimants also argue that the district court abused
its discretion in deciding to disentitle them, but its brief on
this point merely repeats arguments made elsewhere and we see no
reason to repeat ourselves in response.



                                            33
            (C) otherwise evades the jurisdiction of the court
            in which a criminal case is pending against the
            person; and

        (2) is not confined or held in custody in any other
        jurisdiction for commission of criminal conduct in
        that jurisdiction.

§ 2466(a).      The dispute here is over the meaning of “in order to

avoid criminal prosecution,” which the claimants argue requires

a showing that the individual’s sole or primary reason for being

absent from the United States is evasion.                  The district court,

however, followed the reasoning of the Second and Ninth Circuits

in holding that this phrase only requires a showing of specific

intent.     All Assets Listed in Attachment A, 89 F. Supp. 3d at

826 (citing United States v. Technodyne LLC, 753 F.3d 368, 383-

84   (2d    Cir.      2014);   United    States   v.     $671,160.00    in   U.S.

Currency, 730 F.3d 1051, 1056 n.2 (9th Cir. 2013)).

     “The       starting       point    for   any        issue   of     statutory

interpretation . . . is the language of the statute itself.”

United States v. Bly, 510 F.3d 453, 460 (4th Cir. 2007).                       We

have previously held that “a natural reading” of the words “in

order to obstruct justice” in the U.S. Sentencing Guidelines

meant    that   the    conduct   it    modifies   must    have   been   committed

“with the specific intent” to obstruct justice.                   United States

v. Blount, 364 F.3d 173, 178 (4th Cir. 2004), vacated on other

grounds, Blount v. United States, 543 U.S. 1105 (2005).                        In

other words, “so long as the defendant had the specific purpose

                                         34
of obstructing justice” the intent requirement is met.                           Id.; cf.

Specific     Intent,       Black’s       Law    Dictionary        (10th        ed.     2014)

(defining    the    term    to    mean    “[t]he       intent    to     accomplish      the

precise criminal act that one is later charged with”).

     Congressional         intent        also     favors     a        specific       intent

requirement.        The claimants’ desired interpretation relies on

words that are not in the statute:                 had Congress wanted to make

§ 2466 apply only where avoiding prosecution was the “sole” or

“principal”       reason    for    a    person’s       absence        from    the    United

States, adding those modifiers to the statute would accomplish

the goal easily.

     Further, Congress clearly anticipated § 2466 would apply to

individuals with no reason to come to the United States other

than to defend against criminal charges.                   As the Second Circuit

noted   in   Collazos,      “Subpart      B     also    applies       to     persons   who,

qualifying     in    all    four       other    respects        for     disentitlement,

decline to ‘enter’ the United States’ jurisdiction.”                             368 F.3d

at 199.      Because the subpart explicitly applies to both those

refusing     to     “enter”       and     those        refusing        to     “re-enter,”

§ 2466(a)(1)(B), the court reasoned the former category could

only be those who have never before entered the United States.

Id. at 199-200 (finding the statute applies to persons who “may

have never set foot within the territorial jurisdiction of the

United States, know that warrants are outstanding for them and,

                                           35
as a result, refuse to enter the country” (emphasis added)).

Such individuals will often be foreign nationals with no ties to

the United States other than their alleged criminal conduct and

the indictment describing it.

     Because the statute must apply to people with no reason to

come to the United States other than to face charges, a “sole”

or “principal” purpose test cannot stand.              The principal reason

such a person remains outside the United States will typically

be that they live elsewhere.            A criminal indictment gives such a

person a reason to make the journey, and the statute is aimed at

those who resist nevertheless.

     Finally, we note that this decision is consistent with the

precedent      in   our   sister   circuits      who   have    addressed      the

question.      The Second and Ninth Circuits have explicitly adopted

a specific intent standard for § 2466.             See Technodyne, 753 F.3d

at 384 (quoting $671,160.00, 730 F.3d at 1056 n.2, in adopting a

specific intent standard).         And while claimants argue that the

D.C. and Sixth Circuits have adopted a stricter standard, we

interpret their decisions to be consistent with ours and those

of the Second and Ninth Circuits.

     In United States v. $6,976,934.65, Plus Interest Deposited

into Royal Bank of Scotland International, Account No. 2029-

56141070, Held in Name of Soulbury Ltd., 554 F.3d 123 (D.C. Cir.

2009),   the    court     held   that     “the   district     court   erred    in

                                        36
concluding that the statute does not require the government to

show that avoiding prosecution is the reason Scott has failed to

enter the United States.”         554 F.3d at 132.            The claimants argue

that the court’s emphasis placed on the word “the” shows it was

adopting a “sole” purpose standard.               There are two problems with

this interpretation.        First, placing emphasis on “the” could

simply    demonstrate     that    the   court         was    equating   the   intent

standard with but-for causation.             In other words, it is at least

as likely that the Soulbury court meant that the government must

show the claimant would enter the country and face prosecution

if he did not specifically wish to avoid prosecution.                         Second,

in   Soulbury   the   government’s        only        mens   rea   evidence    was   a

television interview demonstrating the claimant’s awareness of a

warrant for his arrest in the United States.                         Id. at 129-30.

This     evidence   was   insufficient           to    show    conclusively     that

avoiding    prosecution     was    even      a    reason      that    the   claimant

remained outside the United States, and neither the district

court nor the government had actually attempted to show intent,

believing the requirement was met by showing mere “notice or

knowledge.”     Id. at 132.       The most that can be taken from the

Soulbury decision, then, is that the intent standard in § 2466

is more than knowledge.          But the claimants are simply incorrect

to assert that the opinion weighed in on the distinction between

specific intent and sole intent at issue here—it did not.

                                        37
        The Sixth Circuit’s opinion in United States v. Salti, 579

F.3d 656 (6th Cir. 2009), is similarly not in conflict with our

own.     That decision reversed disentitlement where the district

court    had   found   the   claimant’s      poor   health   “irrelevant    as   a

matter of law” on the question of intent.                    Id. at 665.      The

court said, “If Al Ammouri is indeed too sick to travel, such

that his illness is what prevents him from returning to the

United States, the Government has not shown as a matter of law

that Al Ammouri’s being in Jordan, and not the United States, is

‘in    order   to   avoid    criminal   prosecution.’”         Id.   at    665-66

(emphasis added).       The court left open the possibility, however,

that while poor health might be a reason for his absence, the

government might still prove that avoiding prosecution motivated

his absence, making him a fugitive subject to disentitlement,

and so remanded the case for further proceedings.               Id. at 666.

        Because the plain language of the statute, the legislative

intent, and the weight of persuasive authority all favor doing

so, we adopt a specific intent standard for § 2466 and affirm

the district court.

                                        B.

       The claimants’ next contention is that the district court’s

findings of intent with respect to each of them were erroneous.

We review these findings for clear error, for while determining

whether claimants are fugitives is a legal determination that

                                        38
would be reviewed de novo, Collazos, 368 F.3d at 195, the issue

of    claimants’          intent     is     a     factual     predicate         to    the       legal

question, Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)

(holding that “[b]ecause a finding of intentional discrimination

is    a    finding        of    fact,”    the     standard         of   review       is   “clearly

erroneous”).

          The    claimants’        principal         argument      is    that     the     district

court impermissibly relied on the fact that each of them is

fighting         extradition        in    finding       specific        intent.           But    the

district court did not rely solely on this evidence—it merely

considered it as a relevant part of a holistic analysis.                                          And

the   weight        of    persuasive        authority        on    this    question         clearly

favors          finding        opposition       to     extradition        relevant        to     the

inquiry.          E.g., Soulbury, 554 F.3d at 132 (“Likewise, under the

third prong, Scott’s renunciation of his U.S. citizenship is

insufficient without some evidence that he took this action to

avoid       extradition.”           (emphasis          added));         United        States       v.

$1,231,349.68 in Funds, 227 F. Supp. 2d 130, 133 (D.D.C. 2002)

(finding that the claimant was “continuing to avoid prosecution

by    opposing       extradition”           and      that    this       conduct      represented

“precisely         the     type     of    situation         that    Congress         intended     to

address when it enacted the Civil Asset Forfeiture Reform Act of

2000”); see also United States v. Real Prop. Commonly Known as

2526 155th Place SE, No. C07-359Z, 2009 WL 667473, at *1 (W.D.

                                                  39
Wash. Mar. 12, 2009); United States v. All Funds on Deposit at

Citigroup Smith Barney Account No. 600-00338, 617 F. Supp. 2d

103 (E.D.N.Y. 2007).         The claimants are unable to respond to the

government’s       logical    conclusion          that     a    “three-year,       multi-

million-dollar quest to oppose coming to the United States is

most surely relevant to their intent.”

       Moreover, the district court did not rely solely on the

claimants’ resistance to extradition.                    Instead, it reviewed each

claimant and noted additional evidence of an intent to avoid

prosecution.        For    example,     Kim       Dotcom       posted    a     message   to

Twitter stating “HEY DOJ, we will go to the U.S.                             No need for

extradition.       We want bail, funds unfrozen for lawyers & living

expenses.”      All Assets Listed in Attachment A, 89 F. Supp. 3d at

827.    The court rightly found this and other public statements

to strongly suggest Dotcom was resisting extradition to posture

for criminal proceedings, using the ability to avoid prosecution

as leverage.       Finn Batato and Mathias Ortmann made statements in

declarations that they were “actively contesting the legal basis

on which the United States has issued the indictment.”                           Id.     The

court   found      that    this,    combined        with       their     opposition      to

extradition and statements that they would remain in New Zealand

sufficient    to    show     an    intent    to    avoid       prosecution.            Other

claimants    were    shown    to    have    made    statements          that    they   were



                                           40
avoiding      international              travel       to   reduce          their       risk     of

extradition and the prospect of prosecution.                         Id. at 829.

      The claimants’ argument that they have legitimate reasons

to remain where they are, such as jobs, businesses, and families

does not disprove that avoiding prosecution is the reason they

refuse   to    come        to    the     United      States.        As    we    have    already

rejected      their    argument           for    a    “sole    intent”         standard,      the

existence of additional reasons to remain in one’s home country

are   utterly    unpersuasive             because      they    do    not    contradict         the

evidence relied upon by the district court.                                 In fact, their

argument demonstrates another reason to reject that very high

standard—almost        any        claimant       could     defeat        disentitlement        by

merely asserting a self-serving reason to remain outside the

United States.             Under the claimants’ preferred standard, the

statute might easily be rendered a nullity.

      Finally,        we        address    the       evidence       of    intent       for    two

particular claimants who do not face extradition in their home

countries.       Claimant Sven Echternach argues that his “absence

from Germany could lead to a default judgment, or potentially

even a German arrest warrant in proceedings related to [the U.S.

charges],”     and     that       this    is    his    reason   for       remaining      there.

Appellants’      Br.        35     (internal          quotations         omitted).            This

assertion, however, is based on the testimony of Echternach’s

own attorney, and the district court spent considerable energy

                                                41
demonstrating        that       the    scenario    he     described          was    highly

doubtful,      particularly            because    his      trouble      with        German

authorities is based on the crimes he is charged with in the

United   States.          Id.    at    829-31.     The     court      noted    that       the

attorney    whose     advice      Echternach      is    following       “has       all    but

admitted    that    his     advice      is   predicated    on    his    desire,          as   a

criminal defense attorney, to keep his client from traveling to

a country where he will be arrested.”                     Id. at 831.          Moreover,

the court found that Echternach specifically fled to his home

country, stating that he refuses to leave (despite wishing to

travel internationally) because Germany does not extradite its

nationals.     Id. at 830.

      Claimants also argue there is no evidence Julius Bencko

returned to his home country of Slovakia, being driven across

Europe     from     Portugal      by     a    Portuguese     national,         to    avoid

prosecution.        But Bencko told a third party that “he was ‘stuck

here in this post commie state . . . the sooner the USA will do

some steps the soner [sic] they will let me go.’”                             Id. at 831

(quoting Bencko declaration).                 Bencko told this person that he

would prefer not to travel outside the country but could if

necessary and stated that he faced a fifty-five-year sentence in

the   United      States.        The    district    court       did    not    abuse       its

discretion     in    finding      these      statements    taken      together      showed

intent to avoid prosecution.

                                             42
                                              V.

      The claimants make two arguments regarding the effect of

international law on the application of § 2466, which we now

address.        Both are questions of law which we review de novo.

See   United     States       v.   Al-Hamdi,       356    F.3d      564,    569     (4th      Cir.

2004).

      First, they argue that disentitling New Zealand residents

violates     the    Charming         Betsy     canon          of   interpretation          which

requires courts to interpret federal statutes “consistent with

our obligations under international law,”                          Kofa v. INS, 60 F.3d

1084,    1090    (4th     Cir.       1995)    (citing         Murray   v.     The    Charming

Schooner     Betsy,       6    U.S.     64,        118    (1804)),         because       it     is

inconsistent       with        the     United         Nations       Convention          Against

Transnational Organized Crime (“UNTOC”).

      The relevant portion of UNTOC says,

      Any person whom [extradition] proceedings are being
      carried out in connection with any of the offences to
      which this article applies shall be guaranteed fair
      treatment at all stages of the proceedings, including
      enjoyment of all the rights and guarantees provided by
      the domestic law of the State Party in the territory
      of which that person is present.

UNTOC, art. 16, ¶ 13, Dec. 12, 2000, 2255 U.N.T.S. 209.                                        The

claimants       argue     that        disentitlement               prevents       them        from

exercising       their    rights       under       New    Zealand      law    and       thereby

violates    the    multinational             treaty      to    which   both       the    United

States and New Zealand are parties.

                                              43
      None of the claimants’ rather conclusory arguments made to

this Court respond to the district court’s ruling on this issue.

It held that there was nothing inconsistent about allowing the

claimants     to     pursue      their    rights       in    New     Zealand      courts,

meanwhile     subjecting         them     to    default        judgment      in     civil

proceedings in the United States which they refused to defend:

“That the exercise of their rights in new Zealand may cause

disadvantages        for   the      claimants    with       respect    to   litigation

occurring     in    America      does    not    mean    they    are    being      treated

unfairly or that they are denied their enjoyment of rights in

New Zealand.”        All Assets Listed in Attachment A, 89 F. Supp. 3d

at 833 (emphasis added).

      The claimants only answer is to misconstrue a New Zealand

court opinion as declaring disentitlement unconstitutional.                          The

opinion to which they refer was only deciding a motion to strike

a   request   that     their     government’s      enforcement        of    restraining

orders on funds (issued in response to orders from the United

States district court) be made reviewable.                         JA 2199-200.       The

case did not hold American disentitlement unconstitutional or in

violation of UNTOC, and the claimants’ selective quoting of a

passage noting the “the plaintiffs would say” that the lack of

reviewability        would     be    unconstitutional          is,    obviously,      not

persuasive.        Compare Appellants’ Br. 37, with JA 2200.



                                          44
       The claimants also argue that claimant Echternach cannot be

disentitled             pursuant      to      § 2466    because        the      Mutual       Legal

Assistance Treaty between Germany and the United States (“U.S.-

German MLAT”) prohibits “any penalty” or “coercive measure” for

failure       to    answer       a   summons.          See    The    German      Mutual      Legal

Assistance Treaty, Ger.-U.S., Oct. 18, 2009, T.I.A.S. No. 09-

1018 [hereinafter MLAT].                      The U.S.-German MLAT was signed in

2003 and ratified in 2007, years after § 2466 was enacted in

2000.         As    such,     claimants         argue       that    the   Supremacy       Clause

dictates that the treaty trumps the statute.                                   See Vorhees v.

Fischer & Krecke, 697 F.2d 574, 575-76 (4th Cir. 1983).

       The     district          court     expressed        “serious      doubts      that     this

treaty bars application of the fugitive disentitlement statute

against all [foreign nationals] who maintain fugitive status in

Germany.”          All Assets Listed in Attachment A, 89 F. Supp. 3d at

833.     The district court’s doubts were well founded.                                   As its

title    suggests,          the      U.S.-German       MLAT    adopts      a    framework       for

making    international              evidentiary       and    witness      requests      between

the     two    countries.                It    is     not     concerned        with     criminal

extradition between the United States and Germany.                                 The treaty

covers,       for       example,       “transferring          persons      in    custody        for

testimony          or    other    purposes,”        MLAT,     Art.     1(2)5.,     so     if    the

claimants were arguing that Echternach was being disentitled for

refusal to testify it might be on stronger ground respecting the

                                                 45
relevance of the treaty.              But because the U.S.-German MLAT does

not restrict how the United States may act towards a criminal

fugitive, there is no need to construe § 2466 consistent with

its provisions, and the Charming Betsy canon is inapplicable.

We therefore affirm the district court’s decision.



                                            VI.

       The claimants’ final argument is that the district court

erred in striking the marital claims to the defendant property

asserted       by   Mona    Dotcom,   the    estranged    wife     of   claimant    Kim

Dotcom.        The court recognized Mrs. Dotcom’s possessory interest

in two assets—a vehicle and the house in which she resides—but

struck her claims to fifty percent of marital property affected

by     this     litigation,     concluding        she   lacked     standing.        The

claimants argue this was error because Mrs. Dotcom only needs to

show       a   “colorable    interest”      in    the   property    (based     on   New

Zealand property law) to establish Article III standing, and she

has done so. 6         Both parties acknowledge that the New Zealand


       6
       The Fourth Circuit uses a higher “dominion and control”
test to determine Article III standing in criminal forfeiture
cases.   In re Bryson, 406 F.3d 284, 291 (4th Cir. 2005).     We
have used the same test an unpublished civil forfeiture case,
United States v. 1077 Kittrell Street, 1991 WL 227792, at *1-2
(4th Cir. Nov. 7, 1991) (unpublished), and several of our
district courts appear to have done the same, e.g., United
States v. $104,250.00 in U.S. Currency, 947 F. Supp. 2d 560, 562
(D. Md. 2013).    We need not resolve this issue because the
(Continued)
                                            46
Property (Relationships) Act (1976) (“PRA”) is controlling on

the question of Mrs. Dotcom’s alleged interest.

        To summarize, Mrs. Dotcom’s argument is that she and her

husband are estranged, that New Zealand law gives her the right

to    assert     a    claim   to   the   marital        property    and     creates     a

presumption that she is entitled to half, and that New Zealand

law     also    recognizes     this   status       as   establishing        an   actual

interest in that property.               The argument is no different from

that rejected by the district court.

      Article        III   standing   requires      a    plaintiff     to    show     “an

injury in fact—an invasion of a legally protected interest which

is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical.”              Lujan, 504 U.S. at 561.                 As

the   district       court    found   after    a    thorough       analysis      of   New

Zealand property law, Mrs. Dotcom has failed to articulate such

an injury because she has not asserted a nonhypothetical legal

interest in the property.                Instead, she is arguing that the

presumption of a fifty-percent share and the right to state a

claim     for    division     of   the    marital       property     establishes       a

“legally protected interest” in the property that is undermined

by the disentitlement of her husband.               It does not.



district court correctly found Mrs. Dotcom did not even meet the
lower of the two standards.



                                          47
      Actual      legal    interests      under     the   PRA   vest      “only     in   the

event of a future Court order or compromise” between the married

parties.     Comm’r of Police v. Hayward (unreported) High Court,

Auckland, CIV 2011-404-002371, 10 June 2013, Venning J, at para

103   (N.Z.)      (“Hayward       I”).      While    the    New     Zealand        Criminal

Proceeds     Recovery      Act     (2009)   (“CPRA”),       which      controls      asset

forfeiture, statutorily defines an “interest” as including “a

right to claim,” Hayward v. Comm’r of Police [2014] NZCA 625 at

para [33] White J for the Court (N.Z.) (“Hayward II”), it is the

Article     III    definition       of   interest     which     controls       standing.

That is, New Zealand law determines the extent of Mrs. Dotcom’s

interest in the property, and Article III determines whether

that interest is sufficient to create standing.                           The district

court rightly concluded that a right to state a claim “does not

rise to the level of a legal or equitable interest sufficient to

satisfy     Article       III.”      JA     1995     (citing      United      States      v.

Schifferli, 895 F.2d 987, 989 n.* (4th Cir. 1990))

      The   district       court    concluded,       rightly,     that       because     the

Dotcoms     had    neither    adjudicated         their    rights    to      the   marital

property nor reached a binding settlement, Mrs. Dotcom had no

actual interest in the property and had therefore failed to even

“allege     that    she    owns    the    property.”        Id.        The    claimants’

argument to the contrary is built upon two major errors.                            First,

they argue that a New Zealand court declared that Mrs. Dotcom

                                            48
had an existing interest in the property, but failed to mention

that   the   opinion     was       explicitly       nonprecedential      and   that   it

recognized an interest in a claim, not an interest in property.

See JA 1994-96.        Second, the claimants misrepresent the holding

in Hayward II, implying that it reversed Hayward I and broadened

the    definition      of     a    marital        property   interest     to   include

hypothetical     claims       to    such     property.       It    did   not—it   very

clearly distinguished the two statutes.

       Finding   the        district    court’s        reasoning    persuasive,       we

affirm the decision to strike Mrs. Dotcom’s claims for lack of

standing.



                                           VII.

       For the foregoing reasons, the district court opinion is

affirmed in full.

                                                                               AFFIRMED




                                             49
FLOYD, Circuit Judge, dissenting:

     The majority concludes that a district court may properly

enter a forfeiture order against property entirely outside of

the United States after barring foreign Claimants--who are also

entirely    outside       of     the    United     States--from       defending     the

government’s forfeiture claim.               I respectfully dissent because I

conclude    Article       III’s    prohibition      against     advisory      opinions

precludes    the    exercise       of   in   rem    jurisdiction       over    a   res,

including real property, entirely outside of the United States

and beyond the control of the district court.



                                          I.

     I   agree     with    the    majority       that   28   U.S.C.    §   1355    is   a

jurisdictional statute.            In enacting § 1355, Congress intended

to fundamentally alter the law regarding in rem jurisdiction.

But see United States v. All Funds on Deposit in Any Accounts

Maintained in Names of Meza or De Castro, 63 F.3d 148, 152 (2d

Cir. 1995) (reaching the opposite conclusion, i.e., that §                         1355

is a venue statute, not a jurisdictional one).                        Congress hoped

to abolish the traditional requirement of in rem jurisdiction

that a court have actual or constructive control over the res.

Compare 28 U.S.C. § 2461(b) (providing that “[u]nless otherwise

provided by Act of Congress . . . in cases of seizures on land

the forfeiture may be enforced by a proceeding by libel which

                                          50
shall conform as near as may be to proceedings in admiralty” 11),

with       28    U.S.C.    § 1355(a),         (b)(2)    (providing      district       courts

“original         jurisdiction”          over     forfeiture       actions      concerning

property “located in a foreign country”).                        A congressional grant

of   jurisdiction             to   the   courts       remains,    however,     subject         to

constitutional constraints on the federal judicial power.                                      My

objection         to    the    ruling    of     the    district    court,      and   to       the

holding of the majority, is not grounded in an objection to its

claim of jurisdiction over the res pursuant to Congress’s grant

of that jurisdiction, but is rather grounded in justiciability

concerns arising from Article III. 2

       “The jurisdiction of federal courts is defined and limited

by Article III of the Constitution.”                          Flast v. Cohen, 392 U.S.

83, 94 (1968).             Article III limits federal courts to deciding

“cases”         and    “controversies.”         See    U.S.    Const.   art.    III,      §    2.



       1
       Admiralty law indisputably requires control of the res as
a prerequisite to the exercise of jurisdiction.
       2
       None of the circuits to apply § 1355(b)(2) and cited by
the majority considered challenges to the exercise of in rem
jurisdiction   based  on   Article  III.     The   D.C.  Circuit
acknowledged that application of § 1355(b)(2) must conform with
the Constitution, but declined any justiciability analysis
because no claimant raised constitutional objections.     United
States v. All Funds in Account Nos. 747.034/278, 747.009/278, &
747.714/278 in Banco Espanol de Credito, Spain, 295 F.3d 23, 27
(D.C. Cir. 2002) (“Unless the Constitution commands otherwise—
and the claimant has raised no constitutional objections at all—
the statute must be enforced.”).



                                                51
These two words “have an iceberg quality, containing beneath

their surface simplicity submerged complexities which go to the

very heart of our constitutional form of government.”                    Flast,

392 U.S. at 94.       Courts developed concepts of justiciability to

express the limitations placed upon federal courts by Article

III’s case or controversy requirement.          See id. at 95.

     As   one    commentator    cited   by   the    majority    notes,   cases

brought   pursuant     to   § 1355(b)(2)     implicate   two    distinct   but

related constitutional        justiciability    requirements--bindingness

and redressability.         See Courtney J. Linn, International Asset

Forfeiture      and   the   Constitution:     The    Limits    of   Forfeiture

Jurisdiction Over Foreign Assets Under 28 U.S.C. § 1355(b)(2),

31 Am. J. Crim. L. 251, 297–99 (2004).              In my view, bindingness

presents the most serious problem here. 3



     3 This is not to say that I am convinced by the majority’s
treatment of the redressability issue, ante, at 15-16. Lujan v.
Defenders of Wildlife requires that it be “likely” and not
“merely speculative” that an injury will be redressed by a
favorable decision of the court.      504 U.S. 555, 561 (1992)
(quotation marks omitted).    Both the district court and the
majority concluded that the actions by the New Zealand and Hong
Kong courts to restrain the defendant res render it probable
that those courts will enforce a judgment of forfeiture.
Perhaps.   I note, however, New Zealand’s repeated disbursement
of large amounts of the restrained assets even after the
issuance of the forfeiture judgment, the revocation (and
subsequent reimposition) of the restraining order by a Hong Kong
court, J.A. 738-39, and an order by a New Zealand court
enjoining the registration of the U.S. forfeiture judgment, J.A.
2220.

(Continued)
                                     52
                                         II.

     The opinions of federal courts must be final and binding on

the parties.       “‘[T]he oldest and most consistent thread in the

federal law of justiciability is that the federal courts will

not give advisory opinions.’”            Flast, 392 U.S. at 96 (quotation

omitted).       Article III courts cannot render decisions subject to

revision by another branch of government.                  See, e.g., Chi. & S.

Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 113 (1948)

(“Judgments, within the powers vested in courts by the Judiciary

Article    of    the     Constitution,      may   not     lawfully    be    revised,

overturned or refused faith and credit by another Department of

Government.”);         Hayburn’s    Case,     2   Dall.    409,    410     n*    (1792)

(opinion    of     Wilson     and     Blair,       JJ.,    and      Peters,          D.J.)

(“[R]evision and control” of Article III judgments is “radically

inconsistent with the independence of that judicial power which

is vested in the courts”).

     The    advisory       opinion     prohibition        is      founded       on     the

principle that federal courts may only issue judgments that are




     Further--although this question may safely be left for
another day--it seems to me that if a foreign sovereign were to
refuse to cooperate, the probability that a § 1355 forfeiture
judgment would redress the government’s injury might slip from
“likely” to “speculative.”    Such a refusal to cooperate by a
foreign sovereign may deprive the government of standing to
pursue the forfeiture action.



                                         53
binding and conclusive on the parties.                      See Waterman, 333 U.S.

at 113–14; Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249,

261–62 (1933) (explaining that a case was justiciable when it

sought   a     “definitive      adjudication”        of     a    disputed      right   that

would    not    be       “subject   to    revision     by       some   other    and    more

authoritative agency”); Gordon v. United States, 69 U.S. 561,

561 (1864) (noting that the Constitution forbids federal courts

from expressing opinions on a case “where its judgment would not

be final and conclusive upon the rights of the parties”). 4                             The

revision       of    a    court’s    judgment     by      “some        other    and    more

authoritative agency” renders the judgment an advisory opinion

prohibited by Article III.               See Wallace, 288 U.S. at 262.

     The majority side-steps this concern by cabining it to the

separation of powers context.                One of the basic tenets of what

constitutes a “case or controversy” cannot be elided so.                                The

defendant      in    this    action--the      res--is       outside     of     the    United

States and beyond the control of the district court.                                  Absent

control, no order of the district court can be binding on the



     4 The Supreme Court has similar concerns with regard to in
rem jurisdiction, observing that when a defendant ship leaves a
port and the plaintiff no longer has a res from which to
collect, courts may find the judgment to be “useless” and not
adjudicate the case based on a “traditional, theoretical
concern[]   of  jurisdiction:   enforceability  of  judgments.”
Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 87
(1992).



                                            54
res because the fate of the res is ultimately not in the hands

of the district court.          Instead, the res in this case is subject

to the control of the courts of New Zealand and Hong Kong.                     The

district court’s forfeiture order therefore merely advises the

courts of a foreign sovereign that (in the district court’s view

under the laws of the United States) the United States should

have title to the res.          Those courts, of course, with control of

the res and with the authority vested in them by their own

sovereigns,       remain   free     to     revise,    overturn,       or   refuse

recognition to the judgment of the district court.                   The decision

of the district court regarding title in the res is thus subject

to   a    “more   authoritative    agency”    outside   of     the   Article   III

hierarchy.        Without control of the res, the district court’s

decision cannot bind the res and thus constitutes an advisory

opinion prohibited by Article III.

         The risk of revision to the district court’s judgment is no

mere     hypothetical.     As     the    government   notes,    “[d]espite     the

registration of the restraints, the New Zealand courts released”

over $5 million for legal fees and living expenses.                  Gov’t’s Br.

7.       Additionally, even after receiving the “final” forfeiture

order from the district court, New Zealand courts granted Dotcom

monthly releases of $135,000 for living expenses.                    Id. at n.5.

In fact, the district court recognized that the foreign courts

“may or may not” register its order and that “New Zealand courts

                                         55
may continue to litigate the issue of whether the assets will be

forfeited.”        J.A. 1982.     The government also concedes that “even

with    a    valid    forfeiture    order,       the    fugitive’s     property        may

suffer no adverse effect.”              Gov’t’s Br. 20 n.13.               In an in rem

action, the district court cannot issue a judgment binding the

res    absent      control   of   the   res.         Where,   as    here,    a   foreign

sovereign controls the res because the res is located abroad,

any in       rem   forfeiture     order   by     a   district      court    constitutes

advice to the foreign sovereign regarding how it should vest

title to the res.



                                          III.

       Our own precedent recognizes the Article III limits of in

rem jurisdiction.            We explored the interplay at length in our

Titanic decisions.           R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943

(4th Cir. 1999) (Titanic I); R.M.S. Titanic, Inc. v. The Wrecked

& Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006) (Titanic II).

The    Titanic       cases   involved     disputes      concerning         the   law   of

salvage as it applied to the wreck of the British passenger

liner R.M.S. Titanic, which sank in the North Atlantic Ocean in

1912.       As the majority notes, ante, at 12-14, the cases arose in

admiralty and applied maritime law, and I readily accept that

§ 1355 attempts to divorce the in rem actions it authorizes from

the traditional in rem principles of admiralty law.                          However, I

                                           56
part ways with the majority because I read the Titanic cases to

contain principles both of admiralty law and of constitutional

law.

       What makes in rem actions problematic from an Article III

standpoint is that “judgments in them operate against anyone in

the world claiming against that property.”                       Titanic I, 171 F.3d

at 957.      Without control of the property, the judgment cannot

“operate against anyone in the world” claiming interest in the

defendant    property.           Id.     “Only     if    the    court       has    exclusive

custody and control over the property does it have jurisdiction

over the property so as to be able to adjudicate rights in it

that   are   binding       against     the     world.”         Id.    at    964    (emphasis

added).      When,     as     here,      the      res    is     not    in    the    court’s

possession, “the court may not adjudicate rights to the res and

effectively bind others who may have possession.                            Consequently,

a court could not exercise in rem jurisdiction, as traditionally

understood, so as to vest rights in property outside of its

territory    .   .     .    .”         Id.   (citation         omitted).           “In   rem

jurisdiction, which depends on sovereignty over property, cannot

be   given   effect    to    property        beyond     a     nation’s      boundaries   of

sovereignty.”    Id. at 966.            Simply put, the res in this case is

beyond the United States’ sovereign territory and our courts

cannot--absent control of the res--declare rights in it that are

binding against the world.

                                             57
      Our   decision      in    Titanic    I    emphasizes       the     importance    of

sovereignty--and control--for in rem actions.                      In Titanic I, we

found the exercise of in rem jurisdiction proper because the

court had constructive control over the wreck because it had a

portion of the wreck in its control.                 The main body of the wreck

itself was located in international waters, i.e., beyond the

sovereign     limits      of     any      nation.          Thus,       although      “the

exclusiveness       of   any    [in    rem]     order      could      legitimately     be

questioned by any other court in admiralty,” we concluded that

the   court    could,      nonetheless,         exercise     an       “‘imperfect’     or

‘inchoate’ in rem jurisdiction which falls short of giving the

court sovereignty over the wreck.”               Id. at 967.

      As Titanic II makes clear, the court’s exercise of power in

Titanic I was possible only because the wreck was outside the

territorial    limits      of    another       sovereign.        In    Titanic    II   we

announced     the    limits      of    constructive         in     rem    jurisdiction

grounded in the boundaries imposed upon courts by territorial

sovereignty.        We held that a court cannot exercise in rem or

constructive    in       rem    jurisdiction        over    property       within      the

sovereign limits of other nations.                Titanic II, 435 F.3d at 530.

We held that a party “cannot come to a court in the United

States and simply assert that the court should declare rights

against the world as to property located in a foreign country.”



                                           58
Id.     That is precisely what the government attempts to do in

this case.

       The majority is correct that the Titanic cases applied the

traditional, admiralty-based law of in rem jurisdiction and is

also correct that § 1355 attempted to alter that traditional

law.     What the majority fails to recognize, however, is that the

traditional limits of in rem jurisdiction are also commanded by

the    Constitution’s        requirement    that      judgments     by       Article    III

courts    be    binding      on   the   parties.         Needless       to    say,     this

requirement cannot be waived by statute.                   Because the res is a

party and because the judgment purports to adjudicate rights in

the res binding against the whole world, control of the res is

the sine qua non of in rem actions.                Absent control, the court’s

judgment cannot bind the property but, instead, merely advises

the foreign sovereign that does control the property as to how a

United States court believes the rights in the property should

be settled.

       The     possible     cooperation     of     the    foreign        sovereign      is

irrelevant, contrary to the weight the district court and the

majority       place   on    that   variable.          Unlike     the     question      of

redressability, which is indeed a matter of probabilities, the

requirement that a judgment be binding and conclusive on the

parties is absolute.              Consider the circumstances of Waterman,

which    articulated        bindingness    as    an   essential     requirement          of

                                           59
Article III’s judicial power.                 In Waterman, the court of appeals

determined that it had jurisdiction to review an order of the

Civil Aeronautics Board awarding an overseas air route.                                 333

U.S.   at    104-05.          By   statute,        such    orders   were     subject     to

presidential         approval      and    the      order    in   question     had      been

approved by the President.               Id. at 110-11.          The court of appeals

determined that even after it reviewed the Board’s order, its

review would remain subject to the approval or disapproval of

the President.         Id. at 113.        The Supreme Court held the judgment

of the court of appeals to be advisory: “Judgments, within the

powers      vested     in    courts      by     the   Judiciary     Article       of    the

Constitution, may not lawfully be revised, overturned or refused

faith and credit by another Department of Government.”                            Id.    I

see no valid reason why a court should be prohibited from giving

advisory opinions to domestic branches of government and yet be

permitted to issue advisory opinions to foreign sovereigns.

       The Supreme Court has never given any indication that the

bindingness concerns in Waterman could be cured by a court’s

determination that the other entity was “likely” to follow its

decision.      While a judgment may in fact have a higher chance of

eventually     being        binding      on   the     parties     where     the   foreign

sovereign     has     acted     cooperatively,        the    U.S.   judgment      remains

“subject      to      later        review       or     alteration      by     [foreign]



                                              60
administrative       action”   and        its   bindingness   remains--

impermissibly--a question of probabilities. 5       See id. at 114.



                                  IV.

       The district court in this case did not have control of the

res.       The res is controlled by foreign sovereigns--New Zealand

and Hong Kong.       Therefore, the district court could not in my

view issue an order as to the res which would be binding against

the world.       Foundational Article III principles preclude the

court from entering a forfeiture order against the res in this

case.      I would reverse the district court on this basis and deem

the other issues presented by this appeal moot.




       5
       It may be possible for the government to make a showing
before the district court that the foreign sovereign would be
compelled, by its own law, to give binding effect to a civil
forfeiture judgment by a U.S. court.   However, the government
has made no such showing in this case sufficient to assuage
Article III concerns.



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