Last month, Ross Ulbricht was found guilty by a federal jury in New York on all seven charges, including the “continuing criminal enterprise” charge normally reserved for traditional criminal organizations. Some of the bitcoins found on his laptop were sold off before the trial was concluded. Pundits nationwide speculated then that he will get the maximum penalty of life in prison, but his sentencing does not take place until May.
High-profile felony cases are nearly always appealed, and occasionally even the most guilty-looking individuals either win or get a lighter sentence on appeal. In the case of Ross Ulbricht, many speculated that the actions of Judge Katherine Forrest would lead to a viable re-trial.
Whether Ross Ulbricht was guilty or not, things that Judge Forrest did which could be considered to tip the scales in favor of the prosecution included allowing the prosecution to talk about yet-unproven murder-for-hire charges in a separate case and not allowing the defense to know who would be witnessing for the prosecution.
The federal judge’s most confusing move was in barring the defense from asking Undercover Agent Jared Der-Yeghiayan about his one-time belief that Mark Karpeles of Mt. Gox was the Silk Road mastermind Dread Pirate Roberts. Additionally, jurors were never able to consider a 2012 interview Dread Pirate Roberts gave which might have corroborated Ross Ulbricht’s story that while he founded Silk Road, he was not its consistent operator.
A subset of the people who were in support of Ross Ulbricht for various reasons was a group of jury nullification activists whose position was that, even if Ross Ulbricht is guilty, the statutes he was being tried under were themselves criminal. Through a little-publicized process known as jury nullification, where jurors decide that a defendant is not guilty even though the evidence is persuasive enough, activists outside the New York courtroom hoped to inform jurors of their right to vote not guilty.
The prosecution believed that jury nullification could be a real possibility and asked the judge to prevent any discussion of Ross Ulbricht’s political beliefs. Ulbricht is a libertarian who does not accept that it is illegal for one person to sell plants – of any type – of substances to any other person. During jury selection, nullification activists passed out fliers outside the courthouse that detailed for potential jurors their right to vote not guilty based on their conscience.
Judge Forrest curtailed this movement by interrogating potential jurors about whether or not they had received such literature, thereby giving the prosecution a chance to oppose jurors who were aware of their rights. At the time, Ulbricht’s defense attorney Joshua Dratel said of the activists,
“People think they’re helping the defense, but they’re not.”
The document filed by Ulbricht’s defense on Friday in support of a re-trial has three main arguments.
“Mr. Ulbricht should be granted a new trial because the government failed to provide exculpatory material and information in a timely manner, thereby denying him his fifth amendment right to due process and a fair trial”
The fifth amendment is most often used in criminal cases when the defendant does not want to testify against himself. It is the latter section of it that the defense is here referring to because it guarantees that prosecutors must follow “due process,” a legal gray area that has been defined and re-defined by federal courts over the past two centuries.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The defense argues that the federal government broke due process in more than than one way, including provisions settled in a 1963 case, Brady vs. Maryland, in which it was found that the government had not allowed evidence that was favorable to the defendant into the courtroom. Remember, the judge would not allow the Dread Pirate Roberts interview into the courtroom.
In a situation where the jury only has to have reasonable doubt to vindicate a defendant, such an interview might have led to that very thing, as it went in line with what the defense team was saying – that Ulbricht may have begun the Silk Road, but did not continue to operate it. This among other actions of the prosecution and the bench might be seen as sufficient cause for a second trial. The document also charges that the Brady disclosures the government did concede to were done in such a way as to preclude the defense from effectively preparing a strategy.
“Mr. Ulbricht’s motion to suppress evidence should be reopened based on information produced by the government in connection with trial, and should be granted in its entirety”
The defense argues that since much of the FBI’s surveillance and evidence were actually conducted without a warrant (and are therefore constitutionally illegal), this evidence should have been suppressed. This is a somewhat dangerous issue to introduce into an appeal since courts the country over are conflicted as to when a warrant is actually necessary anymore.
Where once the government required a warrant to gather almost any kind of information about a private citizen, we now have 24-hour-a-day surveillance of all communications conducted by the NSA compounded by various “national security” motivated laws. A judge who agrees with the statements in this part of the appeal might well set themselves up as defining an unintentional precedent.
Andreas M. Antonopoulos was not allowed to testify
When a defense attorney is going to introduce expert testimony, they have to provide a written explanation of what the expert is going to say that is related to the case. Antonopoulos was planning to testify in the case. Because of scheduling issues, Ulbricht was not able to proffer enough information about Antonopoulos’ expertise.
Andreas M. Antonopoulos is considered an expert on Bitcoin, and he would have informed the court of the weakness of FBI evidence in regard to Bitcoin transactions supposedly related to the Silk Road. He would have pointed out their narrow understanding of change addresses, for example, which in several cases could have cast serious reasonable doubt on the FBI’s execution of the investigation.
The goal of this part of the defense would have been to provide reasonable doubt about the provenance of the Bitcoin that Ulbricht had on his laptop at the time of the arrest. “In bitcoin, access does not imply rightful ownership,” Joshua Dratel had told the court when orally outlining the nature of Antonopoulos’s prospective testimony.
Felony cases are regularly won on appeal. Ulbricht’s request for a re-trial is based on a miscarriage of justice that only comes out in the details of the way the prosecution and the judge conspired to deny his fifth amendment right to due process.
In several documented instances during the case, the jurors could have potentially found reasonable doubt in evidence that was either suppressed or wrongly introduced. It will be interesting to see whether the federal court in southern New York grants a new trial or not, and CCN.com will keep you posted.
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