Silk Road’s mastermind Ross Ulbricht faces objections to appeal

Maria Nikolova

Ulbricht has not established that the Pen/Trap data he seeks constitute “newly discovered” evidence that is material to his defense, or likely would have led to his acquittal at trial, US Attorneys argue.

Several months after Ross William Ulbricht, also known as Dread Pirate Roberts, the mastermind behind Silk Road, the notorious marketplace that used Bitcoins for its transactions, filed an appeal from a set of orders issued by the Honorable Katherine B. Forrest, United States District Judge, in the Southern District of New York, he now faces objections from the US Government.

Earlier today, the USA filed an appellee brief with the Second Circuit U.S. Court of Appeals. In the document, US attorneys insist that Ulbricht’s claims should be dismissed and that the District Court did not err in its judgment.

Let’s recall that Ulbricht appeals from

  1. an order entered on February 5, 2018, denying his request for an extension of time to submit a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure;
  2. an order entered on February 21, 2018, denying his request for reconsideration, both entered by the Honorable Katherine B. Forrest.

The motions by Ulbricht focus on data he claims is new. Over the course of investigating Ulbricht and his Silk Road enterprise, the Government had obtained five orders for pen register and trap and trace data (Pen/Trap). On February 5, 2018, while his petition for certiorari was pending, Ulbricht filed a series of motions, including a request for an extension of time to file a Rule 33 motion based on purportedly new evidence related to the five Pen/Trap orders. The District Court denied the motion for additional time to file a Rule 33 motion later that day.

Let’s note that Rule 33 provides, in relevant part, that “upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”

The Attorneys explain that where a motion for a new trial is based on a claim of newly discovered evidence, the defendant bears a particularly high burden, for relief may only be granted upon a showing that (1) the evidence is newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal.

The District Court did not abuse its discretion in denying Ulbricht’s request for an extension of time to file a Rule 33 motion, because Ulbricht has not established that the Pen/Trap data he seeks constitute “newly discovered” evidence that is material to his defense, or likely would have led to his acquittal at trial.

Ulbricht characterizes the purportedly “newly discovered” evidence as (1) Pen/Trap data for three of the orders “which should be contained in the three sealed magistrate’s files”; (2) “additional, new [Pen/Trap] data which the government had just discovered and promised to produce to the defense”; and (3) “evidence” from a book regarding Ulbricht’s conviction, American Kingpin, which “revealed” that the investigating agency was “invading” Ulbricht’s residence to “monitor his location, movements and online activity within his residence” through the use of the Pen/Trap orders.

The US attorneys argue that Ulbricht’s challenges are meritless. The existence of the Pen/Trap data was known to Ul-bricht as early as February 2014, they say, adding that the arguments he puts forth now about the purported import and use of the Pen/Trap data were raised by Ulbricht and rejected by the District Court and this Court on direct appeal. As such, the District Court did not abuse its discretion in denying both Ulbricht’s motion for additional time to file a futile Rule 33 motion, and his request for reconsideration of that denial.

From early 2011 through October 1, 2013, Ulbricht owned and operated a vast online black market, known as “Silk Road,” through which thousands of vendors sold approximately $183 million dollars of illegal drugs, as well as a variety of other goods and services. Ulbricht designed and created Silk Road to facilitate illegal transactions anony mously and beyond the reach of law enforcement, including by hosting the site on the Onion Router (Tor) network, which hides the identities of its users and their IP addresses, and by requiring vendors and customers to do business in Bitcoin, a virtual currency designed to be as anonymous as cash.

The Indictment was filed on August 21, 2014, charging Ulbricht in seven counts, including distributing and aiding and abetting the distribution of narcotics, engaging in a continuing criminal enterprise, and conspiring to launder money. Trial commenced on January 13, 2015, and ended on February 4, 2015, when the jury found Ulbricht guilty on all counts. On May 29, 2015, Judge Forrest sentenced Ulbricht to a term of life imprisonment and ordered forfeiture in the amount of $183,961,921.

Ulbricht is currently serving his sentence.

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