This is what Silk Road looked like during its heyday.US DOJ
Nearly five months after convicted Silk Road druglord Ross Ulbricht filed his opening brief in the 2nd Circuit Court of Appeals, the government finally responded with its own brief late Friday evening.
The government included over 200 pages of exhibits from the trial.
The 186-page reply rebuts, point-for-point, defense attorney Joshua Dratel’s claims that
his client wasn’t the primary operator of the notorious underground website,
that Ulbricht’s defense was hampered by two corrupt federal agents,
that Dratel was not adequately able to cross-examine government witnesses, and
that two witnesses were unable to testify on Ulbricht’s behalf, denying him constitutional rights, among other arguments.
After a lengthy recap of the entire case, United States Attorney Preet Bharara opened his arguments with a notable flaw in Ulbricht’s logic:
But nowhere, either below or here, has Ulbricht explained, other than in the most conclusory way, how the corruption of two agents—who neither testified at his trial nor generated the evidence against him—tended to disprove that he was running Silk Road from his laptop.
In short, the government argues, Ulbricht was caught red-handed, and the appeals court should uphold both the conviction and the sentence.
Those two figures loom large over the appeals process: former Drug Enforcement Agent Carl Mark Force, and former Secret Service Agent Shaun Bridges.
The pair worked together on the Baltimore-based law enforcement task force that went hard after Silk Road. Ultimately the case was prosecuted out of New York, where local investigators testified at trial.
All material gathered from Baltimore was kept out.
However, after Ulbricht’s trial concluded in late 2014, the government unveiled criminal corruption charges against both federal agents.
The government concluding that agents Force and Bridges worked independently to extort money from Dread Pirate Roberts (Ulbricht’s online identity) and rip off Silk Road as a whole.
By the end of 2015, after taking plea agreements, both Force and Bridges were sentenced.
As Ars reported previously, Dratel only became aware of the Force investigation in late 2014, and was precluded from talking about it at trial.
Dratel didn’t find out about Bridges until after Ulbricht’s trial concluded.
As such, roughly half of Dratel’s January 2016 appellate brief focuses on those agents’ corruption.
Bharara reminded the appelate court that government investigators were obligated to hand over any exculpatory information to the defense team—and they did not find any. Not only that, US District Judge Katherine Forrest was convinced that the government had demonstrated “persuasive evidence that no fabrication occurred.”
Indeed, Bharara drove home the point that just because there were two dirty cops on the case “did nothing to undermine the reliability of the evidence.” He pointed out how Ulbricht was, in fact, DPR.
After all, Ulbricht was caught logged in as DPR, and that laptop was full of chat logs and journal entries that testified to this fact.
As the prosecutor concluded:
Ulbricht’s appeal rests on the unspoken assumption that, once the Government identified a pocket of corruption in sweeping law enforcement investigations of him, he was entitled to conduct his own independent inquiry, to ensure no exculpatory material existed anywhere in the federal government’s holdings.
But that is not the law.
Ace in the hole
Another one of Dratel’s arguments focused on what he viewed as improper limitations on cross-examination of Jared Der-Yeghiayan, a special agent with Homeland Security Investigations.
At trial, Judge Forrest struck some of the cross-examination from the court record: specifically any “personal beliefs” that he may have had about “particular individuals” during the investigation of Silk Road.
At one point during his detective work, Der-Yeghiayan was looking into former Mt.
Gox owner Mark Karpeles.
As Ars reported before, Dratel wrote in his appellate brief that he should have been able to present evidence (via cross-examination) about Karpeles.
Specifically, he hoped to focus on Karpeles’ offer to provide the name of someone he thought was running Silk Road in exchange for immunity on financial charges. (Karpeles has said he hadn’t heard of Ross Ulbricht until Ulbricht was arrested in October 2013; the information he had to offer was related to a fake name used to register a website advertising Silk Road.)
In the Friday reply brief, Bharara punched back by saying that Dratel didn’t establish any meaningful rationale as to why Karpeles, and not Ulbricht, was the true DPR.
The facts that Karpeles owned a Bitcoin exchange and that websites associated with him used publicly available software also used by the Silk Road website (Tr. 50203, 742-45), are no more probative than the fact that extremists in Oklahoma besides Timothy McVeigh considered attacking the Murrah Federal Building (a fact that was excluded from McVeigh’s trial).
Ulbricht’s defense team has long tried to make hay out of how they essentially put on no defense—their two star witnesses were denied their testimony on procedural grounds. However, Bharara countered that the testimony deserved to be excluded, as “the defense did not describe what the witnesses would actually say” in their own court filings.
Bharara closed his reply brief with arguments that not only was Ulbricht actually guilty of the crime he was convicted of, but that his sentence was reasonable.
Amici (friends of the court) who filed on Ulbricht’s behalf post-sentencing have pointed out that less than one percent of drug cases result in a life sentence, so his double life sentence is far too long on its face.
“But life sentence are hardly unprecedented for defendants who held leadership roles in large-scale drug conspiracies, especially when they used the threat of violence to maintain their organization,” the prosecutor wrote.
He went on:
Although Ulbricht likens himself to the “landlord” who lets his tenants sell drugs (Br. 138), in fact he was a kingpin, the “captain of th[e] ship,” (Tr. 258), in his words, who was “lead[ing] an international narcotics organization” from “[b]ehind [his] wall of anonymity,” (Tr. 264, 283).
The drug dealers who sold through Silk Road were his “business partners” (Tr. 1793), not mere tenants, and unlike a landlord, Ulbricht received a commission on each and every sale that Silk Road facilitated. Ulbricht generally did not sell drugs himself, because he did not have to; like any other kingpin, he had an entire network of individuals operating under his umbrella who did the work for him, including individuals he paid to kill others.
The 2nd Circuit Court of Appeals has yet to schedule oral arguments in the case.
A decision is likely to follow several months later.