Ross Ulbricht, convicted and sentenced to life in prison last year for running the darknet sales website Silk Road, had his legal team file an appeal yesterday. (I reported on his lawyer Joshua Dratel's initial appeal plans right after sentencing).
The defense's main points of contention, as specifically expressed in the suit (in forceful ALL CAPS) below.
Interpolated will be excerpts and summations from me and more extended quotes from the appeal explaining what the defense's contentions mean:
THE COURT ABUSED ITS DISCRETION AND DENIED ULBRICHT HIS FIFTH AND SIXTH AMENDMENT RIGHTS TO DUE PROCESS, THE RIGHT TO PRESENT A DEFENSE, AND A FAIR TRIAL BY (A) PRECLUDING THE DEFENSE FROM USING AT TRIAL THE EVIDENCE RELATING TO DEA SPECIAL AGENT CARL FORCE'S CORRUPTION; (B) REFUSING TO ORDER THE GOVERNMENT TO PROVIDE ADDITIONAL DISCOVERY AND BRADY MATERIAL REGARDING CORRUPTION; AND (C) DENYING ULBRICHT'S MOTION FOR A NEW TRIAL BASED ON ADDITIONAL POST-TRIAL DISCLOSURES REGARDING FORCE AND ANOTHER CORRUPT LAW ENFORCEMENT AGENT INVOLVED IN THE SILK ROAD INVESTIGATION….
Here is some previous reporting on Force and his corruption. He was a DEA agent who did a lot of the communication with "Dread Pirate Roberts" (DPR), the pseudonymous operator of Silk Road, and was responsible for entrapping him into an alleged murder for hire. Force also leaked info about the ongoing investigation to DPR in exchange for bitcoin payoffs.
Dratel in the appeal continues to argue that Ulbricht being the admitted launcher of Silk Road does not mean he was necessarily the "Dread Pirate Roberts" who continued to run it. He posits that the purely digital nature of most of the evidence linking DPR to Ulbricht could have been falsified, and that agents deeply involved in the case are known to have been in the game essentially for the chance to steal bitcoin.
This leads the appeal to state that all that evidence against Ulbricht "was permeated by corruption of two law enforcement agents participating in the investigation, the restrictions on cross-examination, and preclusion of expert witnesses offered to overcome those restrictions" and that all that "eviscerated Ulbricht's defense and denied him a fair trial."
Dratel tried during the trial to get it delayed until Force's case had been adjudicated—the defense only learned of the case's existence about a month before Ulbricht's trial began—but his request was denied. The existence of a second corrupt agent on the case, Treasury agent Shaun Bridges, was not revealed to the defense until the trial was over.
Despite the government's insistence that the investigation had to be kept secret, both of the accused were already well aware they were under investigation. The filing contains much detail about their behavior that would make one wonder about the veracity of any investigatory information they were responsible for.
The appeal offers the suggestion that whoever was DPR at the height of the investigation may have been tipped off by Force enough to attempt to falsely implicate Ulbricht.
The appeal continues to propose the alternate theory that Bitcoin exchange operator Mark Karpeles might have been the DPR operating the site during the period of the investigation. Karpeles is currently facing criminal charges in Japan related to embezzlement from his collapsed exchange, Mt. Gox.
Dratel also argued the unfairness of being denied cross-examination on some government computer forensics experts and then also denied introducing some of his own witnesses on those issues. The appeal notes that they need not prove that excluded evidence regarding Force would have changed the verdict, merely that it had a reasonable probability of doing so.
•The next point:
THE COURT ABUSED ITS DISCRETION BY CURTAILING CROSS-EXAMINATION AND THE DEFENSE THEORY AT TRIAL …
The Court eventually refused to allow questioning of one witness, a homeland security agent from Chicago, Jared Der-Yeghiayan, over his belief for a time that Karpeles might be DPR. This, Dratel insists, goes precisely to their defense of raising reasonable doubt that Ulbricht was DPR during the time of the investigation.
•The next point:
THE COURT ABUSED ITS DISCRETION IN PRECLUDING TWO DEFENSE EXPERTS …
Dratel insists that two computer expert witnesses they were not permitted to bring to the stand prevented the jury from understanding certain abstruse aspects of the government's case, particularly pertaining to bitcoin wallets.
Thus, "by precluding the defense experts, who would have countered the complex testimony regarding bitcoin presented by the government, the government witnesses' testimony essentially went unchallenged, and Ulbricht was denied his Fifth and Sixth Amendment rights to present a defense."
Many elements of the testimony of FBI special agent Ilhwan Yum that the denied witnesses were meant to clarify or contest were revealed to the defense, Dratel says, far too late in the process, including in many cases after the trial had started.
While the government was permitted to present testimony regarding extremely complicated processes outside the ken of the average juror, Ulbricht was denied the vital opportunity to challenge that testimony and evidence, some of which was generated and provided only mid-trial shortly before its admission, and therefore, the Court's preclusion of the two defense experts was an abuse of discretion.
•The next point:
THE COURT ABUSED ITS DISCRETION IN PRECLUDING ADMISSION OF ANDREW JONES'S STATEMENT AGAINST PENAL INTEREST PURSUANT TO RULE 804(3)(b),FED.R.EVID., AND/OR RULE 807, FED.R.EVID
Dratel tried to admit into evidence a statement by a former Silk Road administrator Andrew Jones that indicated the DPR he was communicating with during the investigation, a couple of months before Ulbricht's October 2013 arrest, was not the same DPR who had first hired him, because he apparently wasn't able to respond properly to an agreed-on prompt. This obviously would have supported the defense assertion that despite being the founder of Silk Road, Ulbricht was not the DPR acting during the investigation.
•The next point:
THE COURT'S ERRONEOUS EVIDENTIARY RULINGS CONSTITUTED CUMULATIVE ERROR THAT DEPRIVED ULBRICHT OF DUE PROCESS AND A FAIR TRIAL…
As Dratel summed it up:
While each of the series of evidentiary trial errors set forth above individually are sufficient to warrant vacating Ulbricht's convictions and granting him a new trial, cumulatively they require it. In combination, they served to prevent Ulbricht from presenting any meaningful defense to the charges, and permitted the government to argue that the defense theory was unsupported by facts.
•The next point:
THE UNLIMITED SEARCHES AND SEIZURE OF ULBRICHT'S ENTIRE LAPTOP AND GMAIL AND FACEBOOK ACCOUNTS VIOLATED THE FOURTH AMENDMENT BECAUSE THEY CONSTITUTED THE FRUIT OF (A) A WARRANT THAT LACKED ANY PARTICULARITY; AND (B) UNLAWFUL AND WARRANTLESS PEN REGISTER AND TRAP AND TRACE ORDERS .
Dratel related two previous cases, Ganias and Galpin, whose outcome should lead the Court to the conclusion that the things being searched for in Ulbricht's digital life were so wide-ranging and non-particular as to qualify as a Fourth Amendment violation.
Dratel writes that:
Rather than require the government to establish probable cause in advance of reviewing categories of electronic data, they would license the government to examine every file to assure that probable cause to seize it did not exist. Any more dramatic or patent example of the "rummaging" could not be envisioned, yet that is what the government has done in this case with respect to Ulbricht's laptop and Gmail and Facebook accounts.
Dratel also says all the pen register and trap-and-trace searches in the investigation against Ulbricht were not justified under the Fourth Amendment as they arose "by court order and not by a warrant based on probable cause." Dratel argued at length, including quoting Reason contributing editor Julian Sanchez, that the dominant Smith v. Maryland case about information allegedly freely volunteered to third parties shouldn't apply in the internet age. He cites a great deal of precedent indicating that pen registers and trap and trace that reveal location and activities inside the home, as per the ones in this case, should require a warrant.
•The next point:
THE LIFE SENTENCE IMPOSED ON ULBRICHT WAS PROCEDURALLY AND SUBSTANTIVELY UNREASONABLE
The alleged deaths from drugs on Silk Road that weighed in Ulbricht's sentencing, Dratel argues, were not properly proven as directly connected to running Silk Road, and that even the government witness on which that conclusion derived didn't present the connection between Silk Road and the deaths as proven. "Accordingly, Ulbricht's life sentence should be vacated and he should be remanded to a different judge for resentencing without the alleged overdose deaths as a factor at sentencing."
He notes that it is far from common even when sentencing actual sellers of drugs to consider unadjudicated overdose deaths as a factor in sentencing, including with some actual Silk Road drug sellers who have faced prosecution.
Dratel also claims that
the life sentence was substantively unreasonable for several reasons. The Court ignored the 99 letters on Ulbricht's behalf that apprised the Court of the positive contributions Ulbricht has made, and could make in the future if given a reasonable sentence, ignored the expertise of the forensic pathologist, and ignored the empirical and other academic and practical research presented in Ulbricht's sentencing submission, although some of that research was about Silk Road specifically, and its harm reduction effects on the drug culture.
The overall purpose of the appeal is:
that Ulbricht's convictions should be vacated and a new trial ordered, particular evidence against him suppressed, or,in the alternative, the matter should be remanded for re-sentencing before a different judge.
My Reason feature on the history of Silk Road and the prosecution of Ulbricht (written before the trial).