Silk Road’s mastermind Ross Ulbricht seeks rehearing in appeal case

Maria Nikolova

Two weeks after the Court nixed the appeal by Ross Ulbricht, aka Dread Pirate Roberts, he files a petition for rehearing.

Ross William Ulbricht, also known as Dread Pirate Roberts, the mastermind of Silk Road, the notorious marketplace that used Bitcoins for its transactions, is not giving up his fight with the US authorities. Two weeks after the Second Circuit U.S. Court of Appeals published a Summary Order and Judgment, effectively nixing Ulbricht’s appeal, he requests a rehearing in this case.

On February 7, 2019, Ulbricht submitted his Petition for Panel Rehearing or for Rehearing en banc. In the document, Ulbricht outlines several points for consideration.

The court should rehear this matter en banc because, according to Ulbricht, it involves a question of exceptional importance that the panel did not address, namely, whether trial counsel’s refusal to provide the defendant with his complete client file (1) interfered with the defendant’s exercise of his right to pursue Rule 33 relief; and (2) established good cause for the defendant to obtain an extension of time as needed to obtain his complete file, and to then research investigative leads which may be in his file, in the search for new evidence that could require a new trial.

The panel decision conflicts with the decision of this court in another case where the court reversed a trial court’s denial of a new trial motion on the basis that the defendant learned after trial, that a juror had lied in her answers during voir dire in order to be chosen to serve on the jury.

Finally, Ulbricht argues the panel should rehear this matter because the panel decision reveals that the panel misapprehended or overlooked several important points, including

  • that Ulbricht argued that he needed his client file from trial counsel in order to effectively research his Rule 33 claim, not because he thought that file would contain newly discovered evidence;
  • that Ulbricht could not obtain prior to trial the pen/trap data he now seeks because the government refused to produce it, despite his request;
  • Ulbricht did not have reason to think that the government had used illegal electronic surveillance of his home in their pen/trap data collection, until the publication of American Kingpin in 2017; and
  • that the government notified Ulbricht three days before the Rule 33 filing deadline, that they had just located pen/trap data not previously disclosed, and would send that to Ulbricht’s counsel.

In March last year, Ulbricht appealed the decisions of Judge Forrest dated February 5, 2018 and February 21, 2018. In these instances, the Judge denied the motion to extend time for a Rule 33 motion and a petition for a rehearing . Explaining her motives for making the judgement, Judge Katherine B. Forrest said: “A rule 33 motion is not an opportunity to re-litigate that which has been litigated, or to engage in a fishing expedition for new evidence”.

Let’s recall that, in February 2015, a jury convicted Ulbricht of various counts stemming from his founding and operation of an online black market called “Silk Road,” which facilitated the sale of millions of dollars of illegal goods and services. Before trial, Ulbricht moved to exclude evidence obtained pursuant to five “pen/trap orders”. These orders allow the Government to, among other things, record the IP addresses associated with users of specific networks and the websites they visit. The district court denied Ulbricht’s motion to suppress this evidence.

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