By Aaron Kesel
Imprisoned Silk Road creator, Ross Ulbricht, has one last chance at reducing his sentence with an appeal to the Supreme Court. After that, his options in court for appealing his double-life sentence (for victimless crimes) will be extinguished.
Ross Ulbricht was arrested in 2013 for running the infamous darknet marketplace Silk Road. Ross admitted in trial that he helped create the site but denies that he was the only “Dread Pirate Roberts” (DPR) admin of Silk Road. Ross claims he sold the website and stated he was set up as the “ultimate fall guy.”
In fact, Ross Ulbricht’s defense team revealed in 2016, that one month after Ulbricht’s arrest (October 1st) on November 18, 2013, someone logged into “Dread Pirate Roberts” account on the Silk Road forum. The team has also disclosed that “evidence-tampering” may have taken place; these facts were documented in a discovery letter, Bitcoin Magazine reported.
“We have recently learned that someone using the Dread Pirate Roberts account logged into the Silk Road forum nearly seven weeks after Ross was arrested. A record of this was buried deep within the five to six terabytes the government produced in the discovery. The evidence shows that the last login by DPR was made November 18, 2013, four days before the Silk Road forum was taken offline on November 22, 2013. Ross Ulbricht was arrested on Oct. 1, 2013, and has been in custody ever since.”
Lyn says that the recently uncovered evidence is mentioned in the demand for additional discovery that was sent to the AUSA in Maryland:
“There is a record in the database for every account, showing the most recent login. We don’t know when that person or persons originally gained access, or how many times they logged into Silk Road as DPR. We don’t know how many DPRs there were. What we now know from the discovery evidence provided by the government is that the last time someone using the DPR account logged into the Silk Road Forum was November 18, 2013, when Ross Ulbricht had been in prison for nearly seven weeks.”
“Joshua Dratel, Ross’ lawyer, said a long time ago that we only know the tip of the iceberg regarding the corruption in this case. This week we have seen another big chunk of ice revealed: evidence tampering and apparently at least one additional DPR. If this backup of the forum database had not been saved or discovered; if logins made by DPR after Ross’ arrest were not found, no one would be the wiser. This begs the question: how much more is there? Unfortunately we may never know, as it’s the nature of digital evidence that it’s easily changed, planted or deleted without a trace. That my son — or anyone — would get a life sentence without parole based on vulnerable digital evidence, especially when it’s been corrupted, puts us all in peril.”
The guy who concocted DPR and mentored Ulbricht, according to Wired, was someone who called himself Variety Jones, and later, Cimon.
A federal judge, U.S. District Judge Kathleen Forrest, sentenced Ross Ulbricht to life in prison without parole in 2015.
It also came out that there was government corruption in the case that the jury was not allowed to know about during the trial. Federal agents Carl Mark Force IV and Shaun Bridges, who were involved in the Silk Road investigation, used their position to steal and extort millions of dollars in Bitcoin for the website and its users. Due to this corruption, Ulbricht’s lawyers subsequently filed for a re-trial motion on March 6th 2015.
On appeal last year, Ulbricht had argued that the evidence gathered with five warrantless “pen/trap orders” allowed the government to monitor IP addresses associated with traffic to and from Ulbricht’s home router, which ultimately violated his Fourth Amendment rights.
That re-trail appeal was denied by the courts last year, with the decision being upheld by a panel of three judges. Citing the 1979 Smith v. Maryland, case which allowed investigators to gather dialed phone numbers without a warrant, the panel of judges said that IP addresses were similar to phone numbers.
His defense “called for a re-evaluation of the third-party disclosure doctrine established by Smith.” But the judges were bound by it “until and unless it is overruled by the Supreme Court,” Circuit Judge Gerard Lynch wrote on behalf of the three-judge panel.
The Supreme Court will be weighing in on these issues and more in the case, as reported by Reason.
Kannon K. Shanmugam, the lawyer managing the appeal, summed up the legal issues that require settling by the Supreme Court in a December memo to potential amici in the case. Even those who might never dream of launching a darkweb site facilitating possibly illegal substance sales should be very worried about how the government convicted and sentenced Ulbricht, he explains:
This case presents two important questions of constitutional law with broader significance for the rights of criminal defendants generally. First, the Second Circuit affirmed the government’s warrantless collection of Mr. Ulbricht’s Internet traffic information by relying on the third-party doctrine, which the Court is reviewing in a different context this Term in Carpenter v. United States….This case would afford the Court an ideal opportunity to address how the doctrine applies to Internet traffic information.
Lyn Ulbricht told Activist Post in an email to this writer that this is one of the most important cases of our time and this is more than just about Ross, this is about our digital rights. Further, isn’t U.S. law supposed to prevent cruel and unusual punishment? You wouldn’t know that was the case with the fact that the judge bypassed a jury and enhanced Ulbricht’s sentencing with unproven allegations that were never brought to trial. The Ross Ulbricht case will set a precedent for the Fourth and Sixth Amendments to the U.S. Constitution. As Lyn stated to Activist Post:
Ross’ petition to the Supreme Court presents important constitutional questions that have broad significance, not only for the rights of criminal defendants but for us all. Can the government legally collect our Internet traffic without a warrant? Does a judge have the right to bypass a jury and enhance an unreasonable sentence with unproven allegations never brought to trial? The ultimate question here is whether the Fourth and Sixth Amendments are still viable and we should all be concerned about how the court answers.
We completely agree: this is about liberty and digital rights, and limiting government overreach.
Ulbricht is also appealing the obscene length of his sentence at the Supreme Court:
Second, the Second Circuit affirmed the sentencing court’s determination of facts never submitted to the jury, which significantly altered the Guidelines range and ultimately led the court to impose a life sentence—a sentence the Second Circuit admitted “condemn[s] a young man to die in prison.” Several justices have previously questioned whether this kind of judicial factfinding violates the Sixth Amendment. For both these reasons, this case warrants Supreme Court review.
To end with a quote: “This case is the birth of law as applied to our digital future. Watch it as a spectator at your peril.” – Scott H. Greenfield, attorney.