Silk Road

Ross Ulbricht, Sentenced to Life for Running Website Silk Road, Files Appeal

Defense insists Ulbricht's trial denied him a fair defense of his theory of other potential Dread Pirate Roberts', and that his life sentence was unjustified and unconscionable.

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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.

In summation:

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).

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  1. Brian, when does double-time commence?!
    I agree that it’s a pathetic application of ‘justice’, but it’s not gonna get worse if it was posted in the later AM when Fist could ‘first’ it.
    In fact, I hope it doesn’t get ignored posted in west-coast commenting time.

    1. Double time?

  2. So my niece and her husband were watching The Making Of A Murderer which I still haven’t decided if I want to watch, and in discussing the thing a bit it turns out they got it – they understood that this wasn’t one case of justice denied, one case where somebody got railroaded, they got that if were either of them up there on trial they’d get fucked just the same. They saw the way the cops, the prosecutor, the judge were all in on making damn sure the defendant gets convicted – and if it happened to you or me nobody would ever know or care that it happened because all they’d ever read in the paper is some scumbag got his just desserts and they’d believe it. How can you fight the power of the state when the state’s got all the power? All you can hope for is some crusader with a soapbox and a megaphone to tell your story, because the media sure ain’t interested in telling the one about the broken justice system.

    1. Bear in mind, that’s (like all documentaries) very one sided and left out a lot of evidence of the guy’s guilt….

      “Kratz identified evidence that the documentary left out, including Avery burning his cat; Avery using a false name in his call to AutoTrader; Halbach’s phone, camera and PDA being found in Avery’s burn barrel; Avery telling another inmate of his intent to build a “torture chamber” when he was released and saying that the way to get rid of a body is to “burn it”…”heat destroys DNA”; the victim’s bones in the fire pit being intertwined with tires thrown on the fire; Halbach’s tooth and a rivet from her jeans found in the fire pit; three calls from Avery placed to Halbach’s cell phone on October 31; Avery’s DNA on the victim’s hood latch; and a bullet found in the garage being fired by Avery’s rifle”

      1. Thank you very much for illuminating my point in such a clear manner.

        If the guy’s guilty, then who gives a fuck if he got a fair trial? He got what he deserved and that’s all that matters. At the point where the cops arrested him, they should have just dragged that scumbag motherfucker out in the yard and shot him in the goddamn head, right? Why do we even need a trial if he’s guilty, huh? What a waste of taxpayer dollars.

        1. You forgot your /sarc tag, though this example is so extreme it shouldn’t even be necessary.

        2. You should realize that the point of the documentary wasn’t to question whether or not the guy was guilty, it was to look at how do we know the guy was guilty? (Remember, this guy served 18 years after being found guilty of a rape that he was later pretty damn conclusively shown to be not guilty of. If they got it wrong the first time, how do we know they didn’t get it wrong the second time?) We would like to think the way the system works is that if the cops suspect you guilty of a crime, they properly secure a warrant by presenting probable cause evidence to a judge who carefully scrutinizes their warrant application to make sure they really do have probable cause, the cops follow all sorts of rules in gathering evidence and interviewing witnesses and after careful consideration present their case to a prosecutor. The prosecutor then carefully checks their case to make sure they’ve followed all the rules of procedure in gathering their evidence and if he’s satisfied that there is indeed probable cause to believe that you committed the crime in question and that he can prove that beyond a reasonable doubt in a court of law using only the evidence lawfully allowed to be presented, he then presents his case to a grand jury – a group of regular people who examine the case with a layman’s eye to see if just regular folks would think the person charged could reasonably be thought to be guilty. Only then is the case even allowed to proceed to trial.

          1. Once the trial starts, you’ve got all kinds of rules designed to bend over backward to give the benefit of the doubt to the defendant. Start with, the prosecutor has to turn over his case to the defense attorney, let him know right up front what he’s charging the defendant with, how’s he’s going to prove his case, what evidence he has, what witnesses he’s going to call – the defense knows exactly what the prosecutor is going to say so that the defense can be prepared in advance to rebut every word he says. There are numerous rules about what evidence and what witnesses can be presented in court and the judge is charged with making sure the prosecutor follows the rules – it’s not just the prosecutor’s job to win the case, he has to do it with one arm tied behind his back and the judge is there to make sure that one arm stays tied.

            1. And finally, the jury. The jury has to be an impartial jury of one’s peers – no cops, no relatives of the prosecutor or friends of the crime victim, no reporters who’ve been covering the investigation from day one – and they must believe beyond a doubt the defendant is guilty and that the belief comes strictly and solely from the evidence lawfully presented by the prosecutor in the courtroom. No bullshit about what you read in the paper or the guy must be guilty because look at that low, sloping forehead and those beady little eyes. No “well, I think there were some things the witness was telling the truth on and some things he was lying about but more truth than lies, so I’m pretty sure the guy did it. Or else somebody else did it. But probably this guy, so I’m voting guilty.” And sure as hell, no “well, if the guy wasn’t guilty, the cops wouldn’t have arrested him, would they? He must be guilty – the cops even arrested him for being guilty!”

              1. And that’s how you rest easy at night knowing there’s no way in hell you could ever wind up behind bars convicted of a crime you didn’t commit – look at all the safeguards built into the system to make sure no innocent person ever gets the punishment reserved for the guilty. How can they possibly prove beyond a doubt something that simply isn’t true when there are so many levels of fact-checkers to catch any mistakes?

                But all that’s just bullshit. The plain fact is, once you’re arrested, that’s it, you’re guilty. If you weren’t guilty, then why did the cops arrest you? The cops know you’re guilty, the prosecutor knows you’re guilty, the judge and the jury know you’re guilty, and they all will bend over backward to give the benefit of the doubt to the prosecution and make sure the defense keeps one arm tied behind his back because if there’s any doubt this guilty bastard might not go to jail, we have to safeguard against that. Better a hundred innocent men go to jail than let one guilty man go free – that’s the American Way.

                1. And the newspapers are all going to report that you’re guilty and the public is going to know you’re guilty because the newspapers wouldn’t lie and look at all the safeguards built into the system to make sure we bent over backwards to give the benefit of the doubt to you. The public believes this because that’s what allows them to rest easy at night knowing they could never wind up behind bars convicted of a crime they didn’t commit. It’s not like just being in the wrong place at the wrong time or pissing off a psycho cop at a traffic stop who decides he’s going to find a big bag of dope under your car seat or having a police department under pressure to solve a case and deciding the most likely suspect should have evidence planted on him just so they can say they solved the case and the prosecutor can get the glory of winning a conviction and the guy’s probably guilty of something or other anyway so who cares if he’s guilty of this particular crime is ever going to be enough to put an innocent man away.

                  Is it?

      2. Actually a bunch of that stuff is included in the documentary. And some of it wasn’t produced at the trial.

      3. Do what now?

        I disagree with your outlook on all documentaries as inherently biased. Regardless, what you’re saying is factually incorrect. I’ve watched the documentary and the cat thing, as a for instance, was mentioned by Avery himself in the very first episode. Here’s a full list of the defense evidence left out of the show: http://www.avclub.com/article/…..kin-230634

  3. Ross Ulbricht has great taste in online handles.

  4. Anyone who would be commenting on this is doing so in a way that may exaggerate in some ways, jocularity may ensue, but we really, really don’t like violence as a means to an end. Especially anything to do with wood chipping, or chippers or choppers for that matter. Just for the record, in case it needs to be said.

    1. So you’re saying – don’t us the ‘W’ word?
      http://stumpcutters.com/wp-con…..-large.jpg

      1. Wallawalla Washington?

  5. All caps? Someone’s ISP is in for a big subpoena.

  6. If these assertions are true, and I’m sure they are a matter of record, then either Judge [REDACTED] is an idiot or had prior contact with United States Senator Chuck [REDACTED] from New York about the case.

    1. The Judge who shall not be named, is a social justice warrior from hell. Read her briefs and her statements to Ulbricht, rejecting his character witnesses and disavowing his heartfelt claims of remorse on the grounds that there was “no social justice” in what he did. The fact that a federal judge is openly making rulings on the grounds of social justice theory, tells you that she is uniquely unfit to be a judge.

  7. You mammals are going to need a larger cellulose bulk processing device

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  9. Ladies and gentlemen,

    START YOUR WOODCHIPPERS.

  10. Not knowing anything more about this case, it seems like this appeal has merit. Also, if I had been on that jury, he probably would have walked (not convinced he was taking out a hit on someone).

    I could be wrong, he could be guilty. I want someone to try to prove he was. The feds failed miserably.

    1. I too would have let him walk.

      The way in which drugs were sold at Silk Road, with immediate feedback/ratings from customers (something Uber understands), led to far safer transactions than those conducted on the street, especially for narcotics. Which should be applauded, what with ‘harm reduction’ being all the rage.

      My friend Leonard Pickard is serving two life sentences without parole for the conspiracy to manufacture LSD, resulting from the infamous ‘silo bust’ in Kansas, 2001. Travesties, both.

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  13. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.

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