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Friday, 4 May 2018

US DOJ files new formal request for Indonesian help to seize Equanimity yacht after April 17 Indonesian Court Ruling


US files formal request for Indonesian help to seize Equanimity
Published on 28 Apr 2018, 3:46 pm | Modified on 28 Apr 2018, 6:16 pm

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The US Department of Justice has filed a formal request for mutual legal assistance (MLA) to Indonesia to help seize the superyacht Equanimity, according to court documents lodged at the California Central District Court yesterday.

This followed the Jakarta South District Court’s decision on April 17 to invalidate the seizure made during a joint operation between the Indonesian police and the US Federal Bureau of Investigation (FBI) on Feb 28.

In particular, the Indonesian court found that the FBI request did not comply with Indonesian laws for rendering mutual legal assistance to foreign countries.

The request ought to have been directed to the Indonesian Ministry of Law and Human Rights, it said, instead of approaching Indonesian police directly.

The latest filing sighted by Malaysiakini states that the MLA request was made to the ministry on April 19 via the DOJ’s Office of International Affairs (OIA).

“In this MLA request, OIA formally requested the ministry serve this court’s arrest warrant in rem on the M/Y Equanimity.

“The ministry responded by requesting a translated version of the arrest warrant, which OIA provided on April 25, 2018,” said the DOJ attorney Joshua L Sohn in a declaration filed in court.

The filings are silent on whether Indonesian authorities had executed the warrant, which was issued by the California Central District Court on June 16 last year.

The DOJ had filed a series of 1MDB-related civil forfeiture suits on that day, claiming that the US$250 million Equanimity and other properties were the corrupt proceeds of misappropriation at 1MDB that had been funnelled through the US.

Although the yacht’s registered owner is the company Equanimity (Cayman) Ltd, DOJ contended that it is beneficially owned by the Penang-born tycoon Low Taek Jho through a series of intermediaries.

1MDB had denied its money had been misappropriated, while Low claimed that allegations against him are politically motivated.

After Equanimity was seized by Indonesian police off the coast of Bali on Feb 28, lawyers representing Equanimity (Ltd) had filed a legal challenge against the seizure in Indonesia and ultimately won on April 17.

While Equanimity Ltd said it would agree to an interlocutory sale of the vessel pending disposal of the civil forfeiture suit, it disagreed with the DOJ on how the sale should be conducted to maximise its value.

DOJ meanwhile contended that Equanimity’s crew cannot be trusted, and sought protective custody of the vessel to sail it to US waters with a US government-hired crew to facilitate a sale in the North American market.

Equanimity Ltd is contesting DOJ’s application for protective custody and the matter is still pending at the California Central District Court. Among others, it argued that the arrest warrant had not been served properly.

The lawyers argued that manner in which the warrant was served was contrary to US law that requires such warrants to be served “in accordance to any treaty or other international agreement” as well as obeying the domestic law of foreign countries.

With the latest MLA request, DOJ’s lawyers reiterated their contention that the warrant was served validly, but the point is now moot.

“But in any event, claimants’ argument is now moot. Even if (Supplemental Rule of Civil Procedure) G(3)(c)(iv) were the only way to validly serve the arrest warrant, the government has now complied with that rule by transmitting the arrest warrant to the ministry as part of an MLA request.

“The Ninth Circuit (Court) has recognised that merely transmitting an arrest warrant to the designated foreign authority is enough to satisfy Rule G(3)(c)(iv) and perfect jurisdiction over the subject res, regardless of what later actions the foreign authority does or does not take,” DOJ’s lawyers argued.

In a related development, the April 30 court hearing on DOJ’s application for protective custody of the Equanimity has been postponed to May 14.

This is because several lawyers of Equanimity Ltd would be attending to other cases on April 30, and both parties agreed that the hearing ought to be postponed. The judge Dale S Fischer concurred and signed an order to that effect yesterday.

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