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.