Appeals Court Upholds Life Sentences For Silk Road Mastermind

from the 'plus-cancer'-sentencing-enhancement-considered-reasonable dept

Ross Ulbricht — sentenced to two life sentences for running a dark web drug marketplace — has just had his appeal rejected by the Second Circuit Appeals Court. Ulbricht raised several challenges to the verdict and sentence, including the denials of his motion to suppress, motion for a new trial, and several alleged errors by the district court. He also challenged the reasonableness of the sentence (which certainly seems unreasonable): two life sentences plus a judgment holding him personally financially responsible for every drug transaction on the Silk Road ($184 million).

On the Fourth Amendment grounds, the appeals court panel determined IP addresses have no more expectation of privacy than dialed phone numbers — no warrants needed. Ulbricht pointed out a lot has changed, even in terms of jurisprudence, since 1979’s Smith v. Maryland decision (the basis for the Third Party Doctrine) but the appeals court isn’t interested in setting new precedent [PDF link].

[W]hatever novel or more intrusive surveillance techniques might present future questions concerning the appropriate scope of the third-party disclosure doctrine, the orders in this case do not present such issues. The recording of IP address information and similar routing data, which reveal the existence of connections between communications devices without disclosing the content of the communications, are precisely analogous to the capture of telephone numbers at issue in Smith… The substitution of electronic methods of communication for telephone calls does not alone create a reasonable expectation of privacy in the identities of devices with whom one communicates. Nor does it raise novel issues distinct from those long since resolved in the context of telephone communication…

Ulbricht struck out on every other appealed issue as well. The court found the warrants issued to search Ulbricht’s accounts and devices were broad, but sufficiently particular. That the FBI may have had to dig through plenty of irrelevant files just to get what it was looking for is irrelevant. The judges point out simple keyword searches would have been defeated by actions Ulbricht took to obscure the contents of files, like name a folder of Tor chat logs “mbsobzvkhwx4hmjt.”

As for the supposed errors committed by the trial court, the one discussed the longest is the denial of Ulbricht’s motion to obtain grand jury evidence used in the indictment of DEA agent Carl Force, who stole Bitcoin and sold the movie rights to his Dread Pirate Roberts investigation, all while still on the clock. The court agrees Force’s actions were reprehensible and reflected badly on the government, but the evidence itself was of no value to Ulbricht’s defense. (Obviously, this theory can’t be tested post facto.) The court, however, makes the point that there’s little use in attacking the credibility of a witness the government isn’t interested in making available.

The government’s commitment to eliminating all evidence that came from Force’s work on the Silk Road investigation further undermines Ulbricht’s claim that he needed the information to avoid a possible injustice. Had Force been called as a government witness, or had any of the government’s evidence relied on his credibility, his character for truthfulness would have been at issue during the trial, and information that impeached his credibility would have become highly relevant. Ulbricht’s reliance on the general fact of cooperation among different government agencies and different U.S. Attorney’s Offices does not undermine the government’s explicit representations that none of the evidence presented at trial derived from Force, and nothing in the record suggests that those representations were false. Ulbricht had no need to rely on the grand jury investigation of Force to attack the credibility of the actual government witnesses or the integrity of its other evidence.

The appeals court goes on to deny every challenge, leaving Ulbricht back where he started: facing life without parole. The judges aren’t entirely unsympathetic to Ulbricht’s challenge of the sentence’s reasonableness, but they note this is how American society as a whole has decided drug dealers should be treated.

At this point in our history, however, the democratically-elected representatives of the people have opted for a policy of prohibition, backed by severe punishment. That policy results in the routine incarceration of many traffickers for extended periods of time.

This indictment of the public is no more reasonable than the sentence handed to Ulbricht because you go to the polls with the candidates you have. And many candidates have made long careers out of long drug sentences, thanks to endless PR campaigns by our nation’s law enforcement agencies, who themselves rely on draconian policies to keep themselves federally funded.

And there were aggravating factors which cannot be undone simply because actions bought and paid for apparently were never carried out.

[T]he facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal. Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite.

[…]

The attempted murders for hire separate this case from that of an ordinary drug dealer, regardless of the quantity of drugs involved in the offense, and lend further support to the district court’s finding that Ulbricht’s conduct and character were exceptionally destructive. That he was able to distance himself from the actual violence he paid for by using a computer to order the killings is not mitigating.

[…]

[I]n evaluating Ulbricht’s character and dangerousness, the most relevant points are that he wanted the murders to be committed, he paid for them, and he believed that they had been carried out. The fact that his hired assassin may have defrauded him does not reflect positively on Ulbricht’s character. Commissioning the murders significantly justified the life sentence.

In the end, it appears Ulbricht was the guy he never wanted to be: a violent drug dealer. He may have fired up the Silk Road with the best of worst intentions — a utopian deep web drug market that could have removed some of the danger associated with buying and selling drugs. But by the end of it, he was apparently ordering hits and rationalizing away the sale of cyanide.

The sentence upheld here reflects that, but it also indicates the government is still inconsistent, even with a stack of sentencing minimums to work with. The government got its man, but it also showed it’s willing to pin life sentences on third party marketplace facilitators, which is a bit like locking up Backpage execs because sex traffickers use their site to… oh wait.

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Companies: silk road

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Comments on “Appeals Court Upholds Life Sentences For Silk Road Mastermind”

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21 Comments
Gorshkov (profile) says:

Slight difference

The government got its man, but it also showed it’s willing to pin life sentences on third party marketplace facilitators, which is a bit like locking up Backpage execs because sex traffickers use their site to… oh wait.

I don’t think that comparison is quite valid. Backpage is a site that is used, incidentally, by some people involved in illegal activities – but silk roads was designed and operated SPECIFICALLY AND INTENTIONALLY for illegal activities.

And personally, I think contracting a murder or two DOES justify a life sentence – there’s a big difference between that and mere "third party marketplace facilitation".

Anonymous Coward says:

Re: Slight difference

And personally, I think contracting a murder or two DOES justify a life sentence

Absolutely. But on the other hand, if he’s going to be sentenced based on alleged attempted murder, my idea of due process demands that he actually be convicted of attempted murder, and not just be an "oh, by the way, he probably did this other crime we didn’t want to actually prosecute."

SirWired (profile) says:

What's the deal with that last sentence?

“The government got its man, but it also showed it’s willing to pin life sentences on third party marketplace facilitators, [who casually order murder hits on their enemies.]”

FTFY

If any drug dealer is going to land life in prison, he certainly deserves to join their ranks.

(Oh, and the “I am not the real Dread Pirate Roberts; his name is Karpeles, and he’s been living like a king in Japan these past several years” defense wasn’t exactly a great idea either.)

Anonymous Coward says:

Ross Ulbricht — sentenced to two life sentences for running a dark web drug marketplace ** — has just had his appeal rejected

** AND ORDERING MULTIPLE FUCKING MURDERS

.

This indictment of the public is no more reasonable than the sentence handed to Ulbricht

YES, WHAT AN UNREASONABLE SENTENCE FOR SOMEONE WHO ORDERED MULTIPLE FUCKING MURDERS

.

"Oh, such a travesty of justice."
"Oh, what an unreasonable sentence."
–Tim Cushing
meh, let’s put this minor footnote at the bottom of the article.
"HE ORDERED MULTIPLE FUCKING MURDERS."

Anonymous Coward says:

Re: The evidence for attempted murder wasn't presented at trial.

The only evidence/testimony that linked Ulbricht to the alleged murder plots came from the law enforcement officer(s)[1]that were later convicted of stealing bitcoin from the silk road site and of selling information about the ongoing criminal investigation to the site’s operators. The credibility problems for evidence from those sources forced the prosecution to drop the attempted murder charges, but they then used that deeply flawed testimony, which Ulbricht never had a chance to challenge, as part of the sentencing.

This loophole where the sentencing guidelines allow for consideration of evidence that wouldn’t be allowed in trial is deeply troubling from a due process standpoint and has been repeatedly abused.

The FBI also appears to have used parallel construction to gin up technically unconvincing evidence for how they located the servers with some very convincing arguments from skeptics that the real source of the location was from NSA.

[1] There were at least two different prosecutions of law enforcement from different agencies. I didn’t bother reviewing to sort out which ones committed which crimes.

Anonymous Coward says:

The murder charges were dropped, (“None of the murders was carried out, nor was Ulbricht charged in connection with the schemes”) https://www.wired.com/2016/10/judges-question-ulbrichts-life-sentence-silk-road-appeal/

but the sentencing mentions them, so part of his sentence is based on charges that were never brought or argued. His lawyer sucks balls, in my opinion.

I still have a problem with this case in that they are prosecuting the infrastructure provider for 3rd party content. If this is the standard, why then are they not prosecuting Fed-ex for shipping drugs, or Zuckerberg for Facebook snuff streams, or E-bay for fraud, etc. The whole idea of prosecuting infrastructure providers for activities carried out by users is bullshit.

And the fact that that this 3 person panel of judges (Judicial Branch) blames their decision to uphold an unconstitutionally harsh punishment on the Legislative Branch, (“the democratically-elected representatives of the people have opted for a policy of prohibition, backed by severe punishment”) of whom they are constitutionally independent, is cowardly and hints of corruption.

SirWired (profile) says:

Re: FedEx doesn't market to drug dealers

FedEx doesn’t openly advertise itself as a way to ship drugs. Zuckerberg doesn’t send out invitations to producers of snuff films. E-Bay has entire gigantic teams dedicated to fighting fraud that occurs on their site.

Silk Road openly sold itself as a site to trade criminal contraband, which is kind of a description of “Conspiracy to Sell [x]”. They were far more than just a disinterested provider of generic services that happened to end up in the middle of various criminal enterprises.

Anonymous Coward says:

Re: Re: FedEx doesn't market to drug dealers

Gee, I didn’t realize you could “openly” advertize on the dark web. In an interview I saw some time ago, Ross Ulbricht said that the site was created to be a site where a person could sell anything. So its a good thing, I guess, that this one guy is now in prison for the rest of his life because now all drug selling will stop. Fabulous.

Anonymous Coward says:

Re: Re: FedEx doesn't market to drug dealers

Ross Ulbricht makes a site where people can sell drugs. The government says selling drugs is illegal. Ross Ulbricht goes to prison.

Maybe the US government should stop selling drugs.

The US government grows, imports and sells tons upon tons of narcotics in the US every year. What the government sells in terms of drugs far surpasses anything the silk road could ever dream of. Ross Ulbrict is a scapegoat to protect the lie that the government doesn’t want people to take drugs. Of course they do, they make so much money off of it. Coming and going.

According to former head of the DEA Robert Bonner, the US government is responsible for bringing tons of drugs into the US and has been for decades. Hypocrisy much?

https://www.youtube.com/watch?v=wFS4IAQpQKw

US soldiers protecting opium poppy fields.
https://www.youtube.com/watch?v=qW2YWqVpT4E

Anonymous Coward says:

Re: Don't blame the lawyer

“so part of his sentence is based on charges that were never brought or argued. His lawyer sucks balls, in my opinion.”

The only way to have challenged the allegations at trial would have been to bring them up, prejudicing the jury. To challenge the use in sentencing of evidence excluded from trial, the defense has to present testimony harmful to their client about the existence of the not-present testimony/evidence, then rebut it. This throws the whole concept of defending against specific charges on its head.

This problem first popped up decades ago in a drug case where the accused pleaded guilty to possession based on a small amount carried on his person and was sentenced to ridiculous term based on the much larger amount in the back of the truck he had been a passenger in that was never presented as evidence against him at trial.

tin-foil-hat says:

He's Worse

How can you equate silk road with back page? Ross Ulbright set the site up for the sole purpose of drug trafficking. Backpage is a site where you buy and sell stuff. Even if the execs of backpage knew there were adult-themed ads I doubt they knew there was sex trafficking. Has it even been proven that there was? I don’t disagree with some of the merits of Ulbricht’s case, especially that having two crooked investigators on staff taints the case but it’s unfair to equate Ulbricht’s deliberate act with backpage. Anything nefarious happening with backpage was unintentional if it happened at all.

Anonymous Coward says:

This indictment of the public is no more reasonable than the sentence handed to Ulbricht because you go to the polls with the candidates you have. And many candidates have made long careers out of long drug sentences, thanks to endless PR campaigns by our nation’s law enforcement agencies, who themselves rely on draconian policies to keep themselves federally funded.

Of course, we can still expect the same anti-regulation dumbfuck to crow his victory about everyone else making or not making the right or wrong decision that may or may not have actually been or not been a choice for which they may or may not have any significant or insignificant influence…

Because he just wants to crow that he’s decided that we’re all idiots.

Anonymous Coward says:

the brainwashing is now complete

Any time the government uses a court case to squash the constitutional rights of everyone in the country, people should be more than a little concerned. But, since the US Constitution and Critical Thinking have both been abolished from the school system, no one even notices that their rights are vanishing before their eyes.

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