Ross Ulbricht, aka Dread Pirate Roberts,
will serve life in prison.
A US federal appeals court has upheld a life sentence for Ross Ulbricht. He was convicted in 2015 of being the Dread Pirate Roberts who ran the Silk Road website, the largest Internet black market at that time.
The three-judge panel unanimously upheld the rulings on a variety of issues by US District Judge Kathleen Forrest, who oversaw the trial. Ulbricht’s defense lawyers wrote dozens of pages challenging Forrest’s rulings on the rules of cross-examination, hearsay evidence, and expert witnesses. But the appeals court ruled in favor of the lower court judge on every count, saying she handled the trial with “patience and skill.”
It’s debatable how much of a defense case Ulbricht would have had even if the judge had ruled for him on all of those matters. The shell of a defense he was left with included “cross-examining government witnesses, briefly calling four character witnesses, having a defense investigator authenticate a task list on Ulbricht’s computer, and reading a few of DPR’s posts into the record,” the appeals judge wrote.
On appeal, Ulbricht had argued that the evidence gathered with five warrantless “pen/trap orders,” which allowed the government to monitor IP addresses associated with traffic to and from Ulbricht’s home router, violated his Fourth Amendment rights. But the appeals court didn’t find that Ulbricht had any privacy right in the IP addresses that were communicating with him. Citing the 1979 precedent Smith v. Maryland, which allows investigators to gather dialed phone numbers without a warrant, the panel of judges said that IP addresses were similar.
Ulbricht’s appeal “call[ed] 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,” wrote Circuit Judge Gerard Lynch on behalf of the three-judge panel.
Ulbricht also challenged the warrant for searching his laptop by arguing that it was overly broad and did not identify specific search terms. The appeals court didn’t agree. In their view, the warrant was necessarily open-ended, since investigators didn’t know what kind of defense mechanisms would be used. The judges noted that Ulbricht kept a certain Tor chat in a file labeled “mbsobzvkhwx4hmjt,” which would have defeated a search that was rooted to specific search words.
Ulbricht also challenged warrants that gathered his information from his Google and Facebook accounts, but the appeals judges found them valid for similar reasons.
Corruption in Baltimore
Ulbricht argued that he should have been able to admit evidence about Carl Force, a corrupt federal agent on a Baltimore task force who stole from the site even as he investigated it. Evidence about Force’s corruption was kept out of the 2015 trial because the investigation was still underway. (A second corrupt agent, Sean Bridges, wasn’t yet being discussed.)
“[T]he shocking personal corruption of these two government agents disgraced the agencies for which they worked,” wrote the appeals judges. At the same time, they found that Forrest’s decision to keep the matter sealed was not an abuse of her discretion. Ulbricht did not show a “particularized need for disclosure,” and revealing the information would have compromised the grand jury investigation.
“[T]he fact of that investigation [against Force] and its scope does not bolster any of the defense theories that Ulbricht described before the district court or on appeal,” the judges wrote.
Ulbricht also asked for the trial to be adjourned until the Force investigation was complete. Again, the appeals court agreed with Forrest that proceeding with the trial was appropriate, since “none of the evidence revealed by the government concerning Force’s corruption was exculpatory.”
Forrest also kept two of Ulbricht’s chosen expert witnesses off the stand, ruling that he didn’t disclose his intent to call them in an adequate or timely way. The appeals court agreed.
“Not only were the disclosures late, more importantly, they were plainly inadequate,” wrote Circuit Judge Lynch.
In his sentencing argument, Ulbricht claimed that Silk Road “made drug use less dangerous” and had “harm-reducing effects.” The site even employed a Spanish doctor, Fernando Caudevilla (Doctor X), who gave advice on safer drug use to Silk Road customers. Ulbricht said the site “reduced violence associated with the drug trade by providing a safe, computer-based method of purchasing drugs.”
Ulbricht faced a high sentencing guideline, which “largely resulted from the massive quantity of drugs trafficked using Silk Road,” as well as an enhancement for directing the use of violence. Acting as DPR, Ulbricht ordered “hits” on two imagined enemies and some of their associates, as well as a staffer-turned-informant, Curtis Green.
The appeals judges agreed with Forrest that Ulbricht “may well have expanded the market” by making buying and selling drugs easier. While harm reduction arguments may be worthy of policy consideration, the appeals court said that judges must enforce the current, admittedly harsh, laws. Lynch wrote:
It is very possible that, at some future point, we will come to regard these policies as tragic mistakes and adopt less punitive and more effective methods of reducing the incidence and costs of drug use.
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.
The government believes Silk Road customers exchanged about $183 million worth of illegal drugs. Ulbricht was caught with more than $18 million in bitcoins on his laptop.
Finally, the appeals court said Forrest was right to take into account Ulbricht’s interactions with fake hitmen at sentencing. The relevant point is that “he wanted the murders to be committed, he paid for them, and he believed that they had been carried out,” Lynch wrote in a footnote. “The fact that his hired assassin may have defrauded him does not reflect positively on Ulbricht’s character.”
Lynch acknowledged that life sentences for drug crimes “are extraordinary and infrequent, which is as it should be.” In the federal system, there’s no parole. But a life sentence was “within the range of permissible decisions,” and in the judges’ view, not unreasonable.
The Ulbricht family, which operates a “Free Ross” website and Twitter account, called today’s appeals ruling a “huge shock and blow.”
“I’m in shock,” reads an unsigned note on the Free Ross website, presumably from one of Ulbricht’s parents, both of whom have been present and supportive of him since his arrest. “I feel like I’m reliving the day Ross was sentenced and now must go tell Ross that the Second Circuit has upheld his convictions and double life sentence… Do they really think that if Ross emerges in 20 years, after not having been on the Internet all that time, he would be a threat to society in any way?”