Last Thursday, October 6, oral arguments were presented in Ross Ulbricht's appeal. Both sides spoke before three appellate judges for a little over ten minutes each. I transcribed the arguments of Joshua Dratel, Ross' lawyer (see below). Note that his statements may sound disjointed, as I didn't include questions by the judge. You can listen to the entire hearing here.
We are hopeful that the judges agree that Ross' trial was unfair and that they grant him a new trial where all the evidence is heard by the jury and Ross' rights are not violated. This is not only important for Ross, but for all Americans. Fair trials are a pillar of our liberty, and without them our country is in big trouble.
Joshua Dratel, Oral Arguments, US v. Ulbricht, October 6, 2016
It’s a natural question to ask why, and whether, the errors we’ve cited with respect to the trial made a difference in the light of all the evidence the government presented. Here’s why these errors mattered and why they denied Mr. Ulbricht a fair trial.
The government got to present its case, but the defense was not afforded the same opportunity. Thus, of course all the government’s evidence looks uncontested and very good. But starting before the trial, and throughout the trial, there was preclusion of every effort the defense made to mount a defense.
Preclusion of evidence regarding corrupt agents
First is the evidence of the agents’ corruption. The first evidence of the defense was that the digital evidence that was presented, a lot of it from the Silk Road site itself, and from other sources as well, was not reliable, was susceptible to manipulation and fabrication – not necessarily by the government….. They hijacked accounts, they changed passwords, they stole money, they were inside the guts of this website.Questionable Laptop Investigation
The laptop was another issue we were not allowed to explore. The government crashed Mr. Ulbricht’s laptop when they seized it, so that the processes that were running on that laptop are no longer available. That’s why we needed an expert to talk about what the screenshots would show. There were open internet ports; a BitTorrent program, which is a program rife with viruses and infiltration from the outside. I was not permitted to cross examine on that issue.
The Corrupt Agents
Force was selling information to Dread Pirate Roberts under a variety of different aliases. It shows that the real DPR had knowledge about the progress of the investigation in the early part of 2013. Then you have a series of events that set up an exit strategy for Dread Pirate Roberts to get out. And all this is material we were not permitted to develop. The government cited grand jury secrecy, yet had already interviewed the two agents, and again we only heard about one agent. Bridges was a computer expert who was schooled in identity theft and a whole range of other expertise that goes directly to what the defense was about. There is evidence we didn’t have before trial, which is that they did try to impose responsibility and guilt on others who were not responsible. So what they did to Curtis Green (Flush) – they made it seem that he was the one who stole the money and never revealed that they stole the money. He was left out to dry. They were going to take away his 5K, he was going to go to jail, he was going to take all the responsibility for this case, for that theft. And we have the other side of that coin right here with respect to Ross Ulbricht. This is a critical issue. All we wanted was the chance to put it in front of the jury.Blocked Expert Defense Witnesses
[Our computer expert] was going to say what we could gain from the computer, what was left after the government crashed it. What was on the computer… This was a vulnerable situation. There are tools that could infiltrate this computer, that meta data (because the government made a big deal about meta data) when all these documents were created on the computer and the dates.[We weren’t allowed to tell the jury that] this computer was in a very vulnerable state. We weren’t allowed to get into that. I think they needed an expert to show them that that computer was in a position to be hacked because the government’s claim was, “Where’s any evidence that this could have occurred?” All we wanted was the chance to show it.
Antonopoulos is a bitcoin expert. He was going to contest what the government’s witness had said. And he was going to establish that the government’s witness had all the concepts wrong, because he’s not a bitcoin expert. The spreadsheet we got two days earlier, and we gave our notice within 48 hours. We didn’t disclose earlier because we didn’t have to. They had a large gap. They were the ones who surprised us. We didn’t have to have an expert if they didn’t have the evidence. They produced the evidence in the middle of the trial. All of the Hornbeck standards for experts were met.
The Life Sentence
Re the sentencing, it was procedural and substantive unreasonableness. The procedural unreasonableness created the opportunity of substantive unreasonableness. The court departed from any standards, so that it could consider a justification for a life sentence, a life sentence for a 30-year-old with no prior criminal record, who basically had the same position as a landlord. (Statute 856).Murder-for-Hire Allegations
Re proof as to murders-for-hire: these never happened, the government knows they never happened, they never found a person even by the name. The Vallee case [Note: 807 F.3d – 2015] is not in our brief, but the court decided last year about internet chats. We can’t…. [Re evidence of payment] Again, we can’t elevate chats….it’s only in the sense of what’s in an internet chat room. We have no idea that that was what the money was actually paid for. There is no evidence that anything ever occurred. We don’t know whether it was an extortion plot, or how the agents got their money… It could have been a way for the agents, or someone else, to get their money out of Silk Road. We don’t know. The agents had encrypted chats that have never been decrypted; they’ve never given up their encryption keys.Also murder-for-hire is a 10-year statute if no death results, if there’s no injury. That’s a ten-year statute, 1958. Murderers don’t get life as a matter of course. They get much less. The average for murder is 20-something years, in this district, in this circuit. So people who actually commit murders, not where there is no evidence of anything happening other than money being paid from who knows what, from an internet conversation. Plus someone who’s never sold any drugs, who created a platform for it, who is in a position of a landlord where a statute is a 20-year maximum – yes a life sentence is unreasonable, procedurally the way the judge handled the overdose deaths. We had a forensic...there’s no forensic evidence, no but for causation. Supreme Court case 134 181 is about but for causation…
More on the Sentence
[For a judge to say that there are bound to be overdose deaths]: I think that creates a disparity, number one, because it’s immeasurable, unquantifiable. It’s not standardized in any way, between this defendant and any other defendant in a narcotics case. In my experience, in a high volume narcotics case, those are not considerations the courts have. It’s unquantifiable, it’s speculative.The gravity of the sentence makes it error. In other words, by saying “you deserve a life sentence for that” is error. That is unreasonableness of its own capacity.
Also it’s connected to the nature of the proof. Because if you don’t have the proof, and you speculate; and you dismiss all the evidence we put in mitigation; and you dismiss the 100 letters that were submitted on this defendant’s behalf… She dismissed all the evidence in mitigation about the site. She took the exact opposite position without any basis. As a judge she’s entitled to her own opinion, but it has to be based on some evidence, and all the expert evidence that we put in, in terms of sociologists, the medical pathologist, was completely opposite. The government presented no forensic evidence, no pathologist. There was nothing about the overdose deaths that contested our pathologist saying they’re not sufficiently proved as relating to the Silk Road. All of these factors led the court down a road of procedural unreasonableness into substantive unreasonableness.
When you think “sufficient, but not greater than necessary,” was a life sentence necessary here? No, it’s not necessary.
Defense Rebuttal to Government Statements
With respect to Force, there were 14 government exhibits initially that related to Force that they pulled after this issue became live. With respect to the cross examination, computer experts in the preclusion, the judge stopped me in the middle and said, in front of the jury, “You can put somebody on.” Then when we tried, we were precluded. With respect to the alternative perpetrator, it’s not speculative. The government had probable cause, the government got warrants, the government could have charged this person under the standard of probable cause. The prosecutor in this case, in the Southern District, signed a warrant application – probable cause – for that person six weeks before they arrested Mr. Ulbricht. So this was not early in the investigation. Probable cause because they believed that person was Dread Pirate Roberts. Even the government didn’t ask for a life sentence. The government asked for a substantial sentence above the mandatory minimum of twenty. Re the harm reduction, this is very important. [Note: The prosecutor claimed to the appellate court that the defense provoked the government to bring the overdose deaths into sentencing by talking about harm reduction. This was proven to be a false statement in the defense rebuttal below]. The harm reduction was litigated before we ever filed a sentencing memorandum. They were not responding to anything. They told us early on, “We’re putting these five overdose deaths in.” We litigated that before we filed the sentencing memorandum about harm reduction. That was our response. We were trying to ameliorate the impact of those deaths. And I agree with you, your honor, 100% having been there, it hijacked the sentencing entirely. You all have tremendous experience in the district court sentencing, and you know what it’s like in those proceedings.[Judge Newman asked: “Let me be clear about the sequence you just said. The first time the defense ever raised the issue of harm reduction was the sentencing memorandum and this came after you were notified there would be evidence of the deaths?”] Not only notified, but after we actually briefed that issue. We briefed that issue preliminarily, prior to any sentencing memorandum being filed. That was a preliminary issue we litigated.
[Judge Newman continues: “Prior to their raising their indication of proof of deaths, had you said in any
communication anything about the benign purposes of this operation?”] No. [“Nothing.”] No.
With Antonopoulos, two letters, page 349 and 380 of the appendix: those were our letters and I think they were sufficiently detailed.
Also In respect to Force and what could have, or would have, we weren’t allowed to investigate, we weren’t allowed to subpoena, we were foreclosed from pursuing it, so what we could have found…it’s just not a fair way to have a trial.