Stephen Cohen, who was forced in court to return Sex.com to Gary Kremen, wants the U.S. Supreme Court to order the Ninth U.S. Circuit Court of Appeals to reconsider his appeal of a $65 million judgment against him for the 1995 domain-name hijacking.
Cohen is still believed to be living in Mexico. But in an April 2 filing to the Supreme Court, a copy of which was obtained by AVN Online, his attorney, W. Michael Maycock, argued Cohen is a lawful resident and not a fugitive. "(Cohen) did not flee to Mexico," Maycock wrote in his brief. "He was detained there."
Cohen landed Sex.com when he sent what Kremen has maintained was a forged letter to Network Solutions, Inc., a domain name registrar which has since changed its name to VeriSign, Inc. Maycock's brief to the Supreme Court argued that Cohen's "right not to be deprived of property without due process of law" was violated.
Maycock is hanging his hope on whether the Ninth Circuit Court stretched the definition of what he called the "fugitive disentitlement doctrine," whereby a criminal case involving an appeal by a fugitive from justice can be thrown out. He argues that Cohen is not a fugitive as commonly understood, not even with a multi-million dollar judgment against him in a civil case.
"This case marks the ultimate expansion of the fugitive disentitlement doctrine," Maycock argued. "What originated as a remedy authorizing the dismissal of (an) appeal of an absconding criminal defendant has spilled over into certain civil cases, usually ones where related criminal charges are pending, a foreign national is involved, and the 'fugitive from justice' cannot be located… (G)uidance regarding how to treat the actions of an opposing party who acts to perpetuate the 'fugitive' status about which he complains is necessary."
Cohen, he said, is a U.S. citizen who "at all items" lived at a known Mexican address, "was readily accessible, and was not the subject of criminal charges." Maycock also wrote in his brief that Cohen can't be classified a fugitive because Mexico's government put him under house arrest for "repatriat(ing) checks to the United States to comply with a district court order."
One of the questions Sex.com wants the Ninth Circuit Court to answer is whether Sex.com in fact can be classified properly as property, which might make Cohen classifiable as a criminal.
There's just one little problem with Cohen's apparent Supremes appeal, Sex.com said in an announcement about the Supreme Court filing: You can't appeal to the highest court when you're still on the lam, and Sex.com isn't budging from its position that Cohen is a fugitive trying to duck that $65 million judgment.
"It defies reason to say that you can use the legal system to your benefit while, at the same time, you're thumbing your nose at law enforcement officials," said Jim Wagstaffe, Kremen's San Francisco attorney. Other analysts suggest Cohen probably has two chances, at best, of prevailing at the Supreme Court where he couldn't prevail in the lower courts: slim and none. Out of an estimated 7,000 similar petitions the Supremes field each year, the court usually takes only 90, if that many. "These petitions are rarely granted even under the best of circumstances," said business law specialist Steven Adamski of Adamski, Moroski, Madden and Green, adding that he thinks Cohen has "zero" chances with the Supremes.
So does Sex.com. "Even (Cohen) knows he's not going to get anything from this," said a Sex.com worker who spoke on condition of anonymity. "He's been doing this for a long time, doing ridiculous things with the law. It's beyond his comprehension, almost, to be doing this for logical reasons. He's doing this for spite, or for other ulterior motives. I just think, even for him, it's like a long shot, but to him it's worth it."
That long shot includes Maycock, in the April 2 filing, wanting the Supreme Court also to consider that, when Sex.com posted a $50,000 Internet reward for Cohen's arrest - "which resulted in several shootouts and made his potential return to the United States a hazardous proposition," after would-be bounty hunters and Mexican police guarding Cohen got into it - it made their case against him even more illegitimate.
In a related development, Sex.com said VeriSign is still waiting for word on whether they'll be held liable in the Cohen domain name hijack. The Ninth Circuit Court agreed last August to move forward oral arguments in Sex.com's appeal against the company, and Judge Alex Kozinski "expressed his surprise" that VeriSign/NSI seemed to disregard Cohen's forgery. "I mean," Kozinski told Sex.com attorneys, "this is really sloppy. You wouldn't approve this if you had seen this letter."
VeriSign could face a judgment from zero to a percentage of their present market value if the Ninth Circuit Court holds them in any way responsible in the Cohen hijack.
In late February, the California Supreme Court refused to weigh in on whether the Sex.com domain name constituted actual property, leaving that question to the Ninth Circuit Court. VeriSign/NSI wanted the California Supremes to review the case, claiming the Internet is tenuous enough that a Sex.com win "would cripple the Internet and jeopardize the national economic benefit for e-commerce," according to a court filing.
