JDratel's Blog

[jdratel]

Charges against DEA agent and Secret Service agent

Here is the statement we issued Tuesday regarding the criminal charges against the DEA agent and Secret Service agent involved in the Silk Road investigation and prosecution. The last four paragraphs are new (and were added after dissemination of the statement to provide further information and answer some questions posed by journalists and others. Also, Tuesday afternoon the judge unsealed the prior submissions in Ross Ulbricht's case that had addressed this issue. Here's the statement w/ the additional paragraphs: The government’s considerable efforts at keeping this monumental scandal from being aired at Ross Ulbricht’s trial is itself scandalous. In addition to keeping any information about the investigation from the defense for nearly nine months, then revealing it only five weeks prior to trial, and then moving to keep sealed and secret the general underlying information so that Mr. Ulbricht could not use it in his defense at trial, and then stymying the defense at every turn during trial when the defense tried to introduce favorable evidence, the government had also refused to agree to the defense’s request to adjourn the trial until after the indictment was returned and made public – a modest adjournment of a couple of months, since it was apparent that the investigation was nearing a conclusion. Throughout Mr. Ulbricht’s trial the government repeatedly used the secret nature of the grand jury investigation as an excuse to preclude valuable defense evidence that was not only produced in discovery, independent of the investigation of Mr. Force, but also which was only at best tenuously related to that investigation. In that manner the government deprived the jury of essential facts, and Mr. Ulbricht of due process. In addition, the government failed to disclose previously much of what is in the Complaint, including that two federal law enforcement agents involved in the Silk Road investigation were corrupt. It is clear from this Complaint that fundamentally the government’s investigation of Mr. Ulbricht lacked any integrity, and was wholly and fatally compromised from the inside. Also, it is clear that Mr. Force and others within the government obtained access to the administrative platforms of the Silk Road site, where they were able to commandeer accounts and had the capacity to change PIN numbers and other aspects of the site – all without the government’s knowledge of what precisely they did with that access. In light of the information provided in the Complaint, it is now apparent to all just how relevant some of the issues raised by the defense at trial were, including the payment by Dread Pirate Roberts to a law enforcement agent for information about the investigation, the ramping up of the investigation of Mr. Ulbricht in mid-2013, soon after that paid information began flowing, and the creation of certain evidence at trial, such as the 2013 journal that conveniently begins – again – in Spring 2013, after the corruption alleged in this Complaint ripened. As the evidence at trial – particularly from the government’s law enforcement witnesses – demonstrated, the Baltimore investigation and agents were inextricably involved in the evolution of the case and the evidence, as well as with alerting Mark Karpeles that he was under investigation, and meeting with his lawyers and exchanging information. At Mr. Ulbricht’s trial, knowing full well the corruption alleged in the Complaint made public today, the government still aggressively precluded much of that evidence, and kept it from the jury (and had other similar evidence stricken from the record). Consequently, the government improperly used the ongoing grand jury process in San Francisco as both a sword and a shield to deny Mr. Ulbricht access to and use of important evidence, and a fair trial. In addition, the government not only precluded use of the information at trial, even if it emanated from independent sources, such as discovery, but the government also prevented the defense from conducting any independent investigation, including subpoenaing Mr. Force to testify at trial. The defense also filed numerous discovery requests, to which the government refused to respond. Regarding the government’s claim that the information was not relevant, the government notified the defense of the investigation of Mr. Force December 1, 2014. Two days later, the government provided its trial exhibits. Among those exhibits were several that referred to Mr. Force in his various internet personas, including “Nob” (his authorized undercover alias), as well as his rogue identities on Silk Road, including alpacino, french maid, and Death From Above (all of which were providing, or attempting to provide, Dread Pirate Roberts with confidential information about the government’s investigation of Silk Road). Thus, according to the government, even after it disclosed the fact of the investigation, it believed Mr. Force was indeed quite relevant. However, in the course of the ensuing litigation regarding whether the defense would be allowed to use the information about the investigation of Mr. Force at Mr. Ulbricht’s trial, by the time trial began the government either eliminated those exhibits or redacted them. During trial, the government successfully objected to the defense’s attempts to introduce the unredacted documents the government had initially designated as its exhibits. Many journalists and others have asked about the potential impact the charges against Mr. Force may have on Mr. Ulbricht’s post-trial motions and appeal. The defense had already moved for a new trial based on the issues implicated by the investigation of Mr. Force, and the government’s subsequent late and/or non-disclosure. The filing of the Criminal Complaint against Mr. Force will amplify that motion, and will be addressed in Mr. Ulbricht’s reply papers, which are scheduled to be filed April 15, 2015 (following the government’s response to the motions, which is due this Friday, April 3, 2015). Should the Los trial motions not succeed, the issue will be included in Ross's appeal.

[jdratel]

Ross Ulbricht's lawyers' Reply to Govt

Here are two statements from Ross Ulbricht's lawyers regarding (1) the government's response to his motions to suppress specifically with respect to its explanation of how it purportedly located the Silk Road servers, and (2). It's response generally. A more extensive response, with technical detail, will be included in the reply papers we will file Sept 23: #1 As the internet community has quickly recognized, the government’s facile explanation of how it located the Silk Road servers raises more questions than it provides answers. It is easy for the government to provide a selective narrative, but without verification through documentation and forensic proof, the explanation in Special Agent Tarbell’s declaration simply does not suffice. As more and more commentators have pointed out, technical, logical, and practical inconsistencies in the government’s version require scrutiny, and resolution through evidentiary factfinding rather than unilateral government claims. Thus, a hearing, with testimony and cross-examination is necessary to test the veracity and validity of the government’s assertions. We are also conducting our own technical analysis of the government’s contentions, and will be responding in our reply papers, which are due September 23, 2014. The government’s dismissive response to the concept of “parallel construction” is, of course, precisely what parallel construction is designed to achieve: a sanitized, opaque version of how information or evidence was obtained, and one which resists further inquiry by categorical denial of access to information other than that which the government decides to provide. In that context, the government’s refusal to answer any of the questions posed in Mr. Ulbricht’s discovery motion is telling as well. A simple “no” with respect to questions regarding the involvement of NSA or other agencies could end the controversy. The failure to answer, of course, generates a presumption that a simple “no” would not be a candid response, or that the prosecutors themselves do not know the answer. #2 The government’s opposition to Mr. Ulbricht’s motions to suppress might be persuasive – if this were 1979, and the entire digital universe were still in the future, and the technology that dictates communication, commerce, and relationships in today’s world was still in its infancy. That the government could write nearly 50 pages and not once even mention, much less address, much less distinguish, the raft of principal Supreme Court decisions (such as Riley, Jones, and even Kyllo) in recent years recognizing the need for Fourth Amendment protections – and the conception of privacy – to incorporate the realities of digital communication, and digitally stored and transmitted information is both astonishing and demonstrative of the intellectual and legal bankruptcy of the government’s unavailing defense of its series of unconstitutional searches. Indeed, the government has retreated two centuries prior to 1979 – to the time of the American Revolution, arrogating to itself the power of the Crown: to search a person’s entire belongings, including his writings, without boundaries, without interference from the courts, and without legal recourse. That is what the Fourth Amendment was designed to cease, and what Mr. Ulbricht’s motions seek to vindicate not only for him, but for all others in a world that the Supreme Court clearly recognizes, but which the government, for transparent, cynical, and specious reasons, refuses to acknowledge. Thanks Joshua Dratel