Silk Road Sealed Document Dump Day (Full Text)

Today Cryptome released 122 pages of documents (local mirror plaintext) related to Ross Ulbricht's Silk Road trial which had been sealed due to the ongoing investigation of Carl Mark Force IV. The order to unseal (local mirror) came into effect with his arrest. For what it is worth Preet Bharara's minions can be seen pleading to Judge Forrest that the terminally corrupted Baltimore investigation some how touches their investigation in no way. The full extracted text of the unsealed documents is below:

Case 1:14-cr-00068-KBF Document 227 Filed 03/31/15 Page 1 of 1

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

March 31, 2015

By ECF
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
Yesterday, the Government submitted a letter requesting the unsealing of certain sealed
filings in this matter (the “Sealed Filings”), which the Court so-ordered. Pursuant to the Court’s
order, please find the Sealed Filings attached.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
SERRIN TURNER
TIMOTHY T. HOWARD
Assistant United States Attorneys
Southern District of New York
Cc:

Joshua Dratel, Esq. (by ECF)

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 1 of 121

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

TO BE FILED UNDER SEAL
November 21, 2014
By E-mail
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, 14 Cr. 68 (KBF)

Dear Judge Forrest:
The Government writes respectfully concerning an ongoing federal grand jury
investigation being conducted by the U.S. Attorney’s Office for the Northern District of
California (“USAO-San Francisco”), in conjunction with the Public Integrity Section of the
Criminal Division of the Department of Justice. The subject of the grand jury investigation is a
former Special Agent (“SA”) with the Drug Enforcement Administration (“DEA”), named Carl
Force. In 2012 and 2013, SA Force was involved as an undercover agent in an investigation of
Silk Road conducted by the U.S. Attorney’s Office for the District of Maryland (“USAOBaltimore”). As the Court is aware, USAO-Baltimore has a pending indictment against Ross
Ulbricht, charging Ulbricht with, among other things, soliciting the murder-for-hire of a Silk
Road employee. (See Attachment A.) SA Force is the undercover agent whom Ulbricht
allegedly hired to arrange the murder-for-hire, as described in that indictment. He is now being
investigated by USAO-San Francisco for, among other things, leaking information about USAOBaltimore’s investigation to Ulbricht in exchange for payment, and otherwise corruptly obtaining
proceeds from the Silk Road website and converting them to his personal use.
SA Force played no role in the investigation of Silk Road conducted by the U.S.
Attorney’s Office for the Southern District of New York (“USAO-SDNY,” or “this Office”),
which proceeded on a separate and independent track from the investigation conducted by
USAO-Baltimore. Moreover, the Government does not believe that the ongoing investigation of
SA Force is in any way exculpatory as to Ulbricht or otherwise material to his defense.
However, in an abundance of caution, the Government seeks to disclose the investigation of SA
Force to the defense, and therefore respectfully requests a protective order authorizing the

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 2 of 121

Government to do so pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E) and prohibiting
the defense from disclosing the investigation to any third-party.
Facts
SA Force is being investigated by USAO-San Francisco for a variety of conduct,
including suspected misconduct undertaken in his capacity as a DEA undercover agent in
USAO-Baltimore’s Silk Road investigation. USAO-San Francisco began investigating SA Force
in the spring of this year after learning of suspicious transactions he had had with a certain
Bitcoin exchange company with a presence in San Francisco. Further investigation by USAOSan Francisco revealed that SA Force held accounts at multiple Bitcoin exchange companies in
his own name, through which he had exchanged hundreds of thousands of dollars’ worth of
Bitcoins for U.S. currency during 2013 and 2014 and transferred the funds into personal financial
accounts. USAO-San Francisco also learned that SA Force had used his position as a DEA agent
to protect these funds, including sending out an unauthorized administrative subpoena to one of
the Bitcoin exchange companies, purporting to instruct the company to unfreeze an account held
in SA Force’s name that the company had frozen due to suspicious activity.
Since learning this information, USAO-San Francisco has been investigating, among
other things, how SA Force could have come into possession of such a large quantity of Bitcoins
and the extent to which he may have acquired these Bitcoins through his involvement in USAOBaltimore’s Silk Road investigation. This Office has been assisting USAO-San Francisco with
its investigation, by sharing relevant evidence collected from this Office’s investigation of Silk
Road, including evidence from the server used to host the Silk Road website (the “Silk Road
Server”) and evidence from Ulbricht’s laptop computer. To date, USAO-San Francisco’s
investigation has uncovered several possibilities as to how SA Force could have acquired a large
amount of Bitcoins through his involvement in USAO-Baltimore’s Silk Road investigation.
1.

Leaks of Investigative Information in Exchange for Payment

As discussed further below, SA Force operated an authorized undercover account on Silk
Road under the username “nob,” which was involved in the murder-for-hire alleged in the
USAO-Baltimore indictment. However, USAO-San Francisco now suspects SA Force of also
operating at least two other accounts on Silk Road, which were not authorized undercover
accounts. These accounts appear to have been used to leak (or offer to leak) investigative
information to Ulbricht (whom SA Force knew only by his Silk Road username, “Dread Pirate
Roberts”), in exchange for payment in Bitcoin.
One of these accounts is the Silk Road username “french maid.” Evidence from the Silk
Road Server and Ulbricht’s laptop indicates that, in or about mid-September 2013, a Silk Road
user named “french maid” contacted “Dread Pirate Roberts” via Silk Road’s private message
system, claiming that “mark karpeles” had given the true name of “Dread Pirate Roberts” to
“DHLS.” Mark Karpeles is the former CEO of a now-defunct Bitcoin exchange company
known as “Mt. Gox,” whom USAO-Baltimore was seeking to interview in September 2013 to
determine if he had any information concerning the identity of the Silk Road operator “Dread
Pirate Roberts.” “DHLS” is a possible reference to the Department of Homeland Security,
2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 3 of 121

agents of which were working with USAO-Baltimore’s investigation. Evidence from Ulbricht’s
laptop indicates that Ulbricht paid “french maid” $100,000 in Bitcoins to pass on the name that
Karpeles had supposedly given to authorities, but that “french maid” never replied.1 Given
“french maid’s” use of SA Force’s first name and apparent knowledge of the USAO-Baltimore
investigation with which he was involved, USAO-San Francisco is investigating whether the
“french maid” account was controlled by Force and used to corruptly obtain this $100,000
payment from Ulbricht.
SA Force is also being investigated for leaking investigative information to Ulbricht
through a different Silk Road username – “alpacino” (or “albertpacino” or “pacino”). A file
recovered from Ulbricht’s laptop titled “le_counter_intel” (i.e., “law enforcement counter
intelligence”) contains extensive records of communications that appear under the heading
“correspondence with alpacino.” The communications purport to be from someone claiming to
be “in the perfect spot to play spy for Silk Road with the DEA.” Like the correspondence from
“french maid,” these communications reflect inside knowledge of USAO-Baltimore’s
investigation of Silk Road. Further evidence indicates that Ulbricht paid “alpacino” a salary of
$500 per week to supply such information. Accordingly, USAO-San Francisco is investigating
whether SA Force controlled this username as well and exploited it to exchange investigative
information to Ulbricht for payment in Bitcoins.2
2.

Use of Cooperator’s Silk Road Account to Steal Bitcoins from Silk Road

SA Force is also being investigated concerning a theft of $350,000 in Bitcoins that appear
to have been taken from Silk Road through the account of a Silk Road employee – the same
employee at issue in the murder-for-hire allegations charged by USAO-Baltimore. The
employee, Curtis Green, who went by the username “Flush” on Silk Road, was a cooperator in
USAO-Baltimore’s investigation at the time, and his handler was SA Force. Green was arrested
by SA Force and several other agents involved in the USAO-Baltimore investigation on January
17, 2013. Green cooperated with the investigation following his arrest and turned over his login
credentials to the “Flush” account to SA Force. According to DEA investigative reports filed by
SA Force, SA Force initially changed the password on the “Flush” account; however, the reports
state that, on or about January 19, 2013, he gave Green the changed password, so that Green
could log in to the account and resume communications with “Dread Pirate Roberts” for the
purpose of acting as a confidential source.3

1

Ulbricht’s name was not in fact given by Mark Karpeles to any investigators associated with
USAO-Baltimore’s investigation.
2

Silk Road employees are known to have been paid in Bitcoin.

3

All of this information has already been disclosed to the defense, as SA Force’s investigative
reports were turned over in discovery pursuant to Rule 16(a)(1), given that they contain
numerous recorded statements by the defendant.
3

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 4 of 121

Approximately one week later, on January 26, 2013, the “Flush” account appears to have
been used to steal approximately $350,000 in Bitcoins from Silk Road.4 “Dread Pirate Roberts”
messaged “Flush” on January 26, 2013, accusing him of stealing the money and warning that he
was “taking appropriate action.” Subsequent private messages from the Silk Road Server and
chats recovered from Ulbricht’s computer reflect that Ulbricht subsequently recruited a Silk
Road user he knew as “nob” to have Green killed in retaliation for the theft. The “nob” account,
as noted above, was an undercover account controlled by SA Force. SA Force had been using
the account to communicate with “Dread Pirate Roberts,” posing as a large-scale drug dealer
seeking to do business on Silk Road. As reflected in USAO-Baltimore’s indictment, after being
solicited to arrange Green’s murder, SA Force continued communicating with “Dread Pirate
Roberts” about what he wanted done and eventually staged Green’s murder to prove that the
murder was carried out, for which “Dread Pirate Roberts” paid $80,000.
SA Force’s use of the “nob” account for this purpose was part of an authorized law
enforcement operation and his communications with “Dread Pirate Roberts” about the murderfor-hire – which have already been disclosed to the defense – are not suspected of being
improper. Moreover, the receipt of the $80,000 payment for the murder-for-hire is documented
in SA Force’s reports. However, the apparent theft of $350,000 from Silk Road through the use
of the Green’s “Flush” account remains unaccounted for. Given that SA Force had the login
credentials to the “Flush” account at the time, he is under investigation for using the account to
steal the funds.5 Although these funds were criminal proceeds and thus would have been subject
to seizure by law enforcement, USAO-San Francisco is investigating whether SA Force took the
funds without proper authorization and unlawfully converted them to his own personal use.
3.

Receipt of Additional Undocumented Payments from “Dread Pirate Roberts”

SA Force continued to use the “nob” account to communicate with “Dread Pirate
Roberts” through September 2013, and USAO-San Francisco is investigating whether he used
the “nob” account to receive any payments that are not documented in his investigative reports
filed with the DEA. In particular, the Silk Road Server contains private messages sent by “Dread
Pirate Roberts” to “nob” in the summer of 2013, referencing two transfers of Bitcoins made by
“Dread Pirate Roberts” to “nob” during this time period – totaling 400 Bitcoins and 525 Bitcoins,
respectively (equivalent to approximately $85,000 altogether at then-prevailing exchange rates).
However, the receipt or seizure of these Bitcoins does not appear to be reflected in SA Force’s
4

As a Silk Road administrator, “Flush” had administrative privileges on the Silk Road website
that gave him certain effective access to user funds, such as the ability to reset user passwords
and thereby take over user accounts.
5

According to an investigative report filed by SA Force, Green claimed not to know anything
about the theft. The report states: “GREEN has telephoned SA Force on numerous occasions
and advised that he has been ‘racking his brain’ about the supposed theft of $350,000 from
DREAD PIRATE ROBERTS. Note, DREAD PIRATE ROBERTS is accusing GREEN of
stealing the money. GREEN believes that there is a glitch in the website and that somebody
hacked into the SILK ROAD marketplace and stole the Bitcoin.”

4

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 5 of 121

reports. Accordingly, USAO-San Francisco is investigating whether he wrongfully used the
“nob” account to acquire these Bitcoins as well and convert them to his personal use.
Discussion
Federal Rule of Criminal Procedure 6(e) generally prohibits an attorney for the
Government from disclosing any “matter occurring before the grand jury.” Fed. R. Crim. P.
6(e)(2)(B). The Supreme Court has explained that grand jury secrecy is justified, among other
reasons, by the need to protect the integrity of an ongoing investigation and to prevent premature
public disclosure of the fact that an individual is suspected of criminal wrongdoing. See Procter
& Gamble Co., 356 U.S. at 681 n. 6. However, the secrecy requirement of Rule 6(e) is not
absolute. In particular, the rule provides that a court “may authorize disclosure – at a time, in a
manner, and subject to any other conditions that it directs – of a grand jury matter . . .
preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E).
Disclosure is permissible under this exception if a court presiding over a judicial proceeding
determines that “a particularized need for disclosure outweigh[s] the interest in continued grand
jury secrecy.” Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 223 (1979).
Here, the Government seeks to disclose to the defense the facts set forth above
concerning the pending grand jury investigation of SA Force, under a protective order that
addresses the need to otherwise keep the investigation confidential. The Government therefore
requests that the Court enter a protective order authorizing the Government to make this
disclosure under Rule 6(e)(3)(E) and precluding the defense from disclosing the existence of
USAO-San Francisco’s investigation to any third-party.
To be clear, the Government does not believe that this disclosure is required under Rule
16 of the Federal Rules of Criminal Procedure or under Brady v. Maryland, 373 U.S. 83 (1963).
The suspected criminal conduct for which SA Force is being investigated – even if he did in fact
commit the conduct – does not exculpate Ulbricht in any way or otherwise materially aid his
defense. To the contrary, the suspected leaks of investigative information by SA Force indicate
that Ulbricht repeatedly paid a government agent to provide “counter-intelligence” information
in the interest of protecting Silk Road from law enforcement. Likewise, regardless of whether
SA Force or someone else stole $350,000 through the “Flush” account in January 2013, the facts
remain that Ulbricht believed that his employee, Curtis Green, had stolen the funds, and that
Ulbricht sought to murder Green for doing so. Finally, any personal use of payments that SA
Force received through his undercover “nob” account reflects only corruption on SA Force’s
part, rather than anything suggestive of Ulbricht’s innocence.
Moreover, SA Force played no role in this Office’s investigation of Silk Road and the
Government does not intend to call SA Force as a witness at trial. Thus, the facts underlying the
USAO-San Francisco investigation do not constitute impeachment material for which disclosure
would be required under Giglio v. United States, 405 U.S. 150 (1972). Nor does the Government
intend to use at trial any communications between Ulbricht and SA Force that were found on the
Silk Road Server and Ulbricht’s laptop – even though these communications include highly

5

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 6 of 121

incriminating exchanges reflecting Ulbricht’s hiring of “nob” to arrange the murder of Curtis
Green.6
Although not exculpatory or impeachment material, in an abundance of caution, the
Government seeks to disclose USAO-San Francisco’s investigation of SA Force to the defense in
order to avoid any dispute concerning whether this information is subject to discovery. Even
though the disclosure relates to an ongoing grand jury investigation, the Government believes
that, with the entry of a protective order prohibiting further disclosure, the disclosure will be
sufficiently limited so as to avoid impinging on any interests protected by Rule 6(e), and that the
disclosure is therefore permissible under Rule 6(e)(3)(E). This Office has consulted with USAOSan Francisco, which consents to the proposed disclosure under the requested protective order.
Conclusion
For the reasons set forth above, the Government respectfully requests that the Court enter
a protective order authorizing the Government to disclose to the defense the facts set forth in this
letter and prohibiting the defense from disclosing the existence of USAO-San Francisco’s
investigation of SA Force to anyone outside the defense team. The Government further
respectfully requests that the protective order, and this letter, be maintained under seal.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
SERRIN TURNER
Assistant United States Attorneys
Southern District of New York

Encl.

6

The Government does intend to introduce other evidence of this attempted murder-for-hire,
through communications that Ulbricht had about it with co-conspirators.
6

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 7 of 121

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
– v. –

UNDER SEAL

ROSS WILLIAM ULBRICHT,
a/k/a “Dread Pirate Roberts,”
a/k/a “DPR,”
a/k/a “Silk Road,”

14 Cr. 68 (KBF)

Defendant.

ORDER
Upon the attached letter from Serrin Turner, Assistant United States Attorney for the
Southern District of New York, dated November 21, 2014 (the “Letter”), IT IS HEREBY
ORDERED as follows:
1.

Pursuant to Rule 6(e)(3)(E) of the Federal Rules of Criminal Procedure, the
Government may disclose to the defense the existence of the grand jury
investigation referenced in the Letter.

2.

Pursuant to Rule 16(d)(1) of the Federal Rules of Criminal Procedure, the defense
is prohibited from disclosing the grand jury investigation referenced in the Letter
to anyone outside the defense team.

3.

The Letter and this Order shall be sealed until such time as the Court otherwise
directs.

Dated: New York, New York
November ___, 2014
_____________________________________
HON. KATHERINE B. FORREST
UNITED STATES DISTRICT JUDGE

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 8 of 121

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA

UNDER SEAL

-v. –

14 Cr. 68 (KBF)

ROSS WILLIAM ULBRICHT,
a/k/a "Dread Pirate Roberts,"
a/k/a "DPR,"
a/k/a "Silk Road,"
Defendant.
————————————————————————————————————————'

ORDER
Upon the attached letter from Serrin Turner, Assistant United States Attorney for the
Southern District of New York, dated November 21, 2014 (the "Letter"), IT IS HEREBY
ORDERED as follows:
1.

Pursuant to Rule 6(e)(3)(E) of the Federal Rules of Criminal Procedure, the
Government may disclose to the defense the existence of the grand jury
investigation referenced in the Letter.

2.

Pursuant to Rule 16(d)(l) of the Federal Rules of Criminal Procedure, the defense
is prohibited from disclosing the grand jury investigation referenced in the Letter
to anyone outside the defense team.

3.

The Letter and this Order shall be sealed until such time as the Court otherwise
directs.

Dated: New York, New York
NQve~91#'"_, iW-1.4– _,__,

'\)"'~k IJ '2A l 'f
HON. KATHERINE B. FORREST
UNITED STATES DISTRICT JUDGE

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 9 of 121

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.
A PROFESSIONAL CORPORATION

29BROADWAY
Suite 1412
NEW YORK, NEW YORK 10006
TELEPHONE (212) 732-0707
FACSIMILE (212) 571-3792
E-MAIL: JDratel@JoshuaDratel.com
JOSHUA L. DRATEL

STEVEN WRIGHT
Office Manager

LINDSAY A. LEWIS
WHITNEY G. SCHLIMBACH

December 3, 2014

BY ELECTRONIC MAIL
FILED UNDER SEAL

,—··–:.;;:··-=-======-===-=·-::.;-:..:..·: :.;-· ·;.;. ·-·-·,
USDC

The Honorable Katherine B. Forrest
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
New York, New York 10007
Re:

SD~Y

DOCUMENT

ELECTRONICALLY FILED
DOC#: _ _ _ _ _._ __

!DATE FJLED:]£C_Q_!2014
i.::-··

United States v. Ross Ulbricht
14 Cr. 68 (KBF)

Dear Judge Forrest:
This letter is submitted under seal on behalf of defendant Ross Ulbricht, whom I
represent in the above-entitled case, respectfully requesting an extension until Tuesday,
December 9, 2014, for the filing of Mr. Ulbricht's motions in limine, which are currently due
today, December 3, 2014. Assistant United States Attorney Serrin Turner has informed my
associate, Lindsay A. Lewis, Esq., that the government consents to this request so long as the
Court grants a corresponding extension for the government's motions in limine. The letter is filed
under seal at the government's request because it references the government's sealed letter
pursuant to Rule 6(e), Fed.R.Crim.P.
The requested extension is necessary in light of the government's recent sealed letter to
counsel, which raises additional issues that are appropriately addressed in Mr. Ulbricht's
motions in limine, and, in fact, materially affect the motions counsel intended to make. Also,
because the deadline for notice of the government's exhibits was changed to today, time will be
needed to review these exhibits prior to the filing of Mr. Ulbricht's motions in order to determine
whether those exhibits provide a basis for further motions in limine not previously anticipated by
counsel, or possibly obviate the need to make other such motions.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 10 of 121

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
December 3, 2014
Page 2of2

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

In addition, the proposed changes in the motion schedule, which would also push back
the due date for motion responses by the parties to December 16, 2014, will compress the
Court's time for consideration of the motions in limine prior to the final pre-trial conference,
currently scheduled for Wednesday, December 17, 2014, at 2 p.m. The parties are of course
available if the Court wishes to adjust the date of that conference.
Accordingly, it is respectfully requested that the Court grant an extension until Tuesday,
December 9, 2014, for the filing of Mr. Ulbricht's motions in limine. As noted, the government
consents to this application so long as the Court grants a corresponding extension in regard to the
government's motions in limine.
Respectfully submitted,

~~f~
Joshua L. Dratel
JLD/lal
cc:

Serrin Turner
Timothy Howard
Assistant United States Attorneys

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Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 11 of 121

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
——————————————————X
UNITED STATES OF AMERICA
– against ROSS ULBRICHT,

:

14 Cr. 68 (KBF)

:

(Electronically Filed)

:

Defendant.
:
——————————————————X

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT ROSS ULBRICHT’S MOTIONS IN LIMINE

JOSHUA L. DRATEL, P.C.
29 Broadway, Suite 1412
New York, New York 10006
(212) 732-0707
JOSHUA J. HOROWITZ, ESQ.
225 Broadway, Suite 1804
New York, New York 10007
(845) 667-4451
Attorneys for Defendant Ross Ulbricht

– Of Counsel –
Joshua L. Dratel
Lindsay A. Lewis
Whitney G. Schlimbach

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 12 of 121

TABLE OF CONTENTS
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT
POINT I
CERTAIN GOVERNMENT EXHIBITS SHOULD BE
PRECLUDED BECAUSE THEY CONSTITUTE
INADMISSIBLE HEARSAY, AND/OR DO NOT QUALIFY
AS CO-CONSPIRATOR STATEMENTS OR UNDER ANY
OTHER HEARSAY EXCEPTION, BECAUSE EVIDENCE
OF HUNDREDS OF THOUSANDS OF TRANSACTIONS
BETWEEN THOUSANDS OF ANONYMOUS USERS OF
THE SILK ROAD WEB SITE AT MOST ESTABLISHES
MULTIPLE DISCRETE CONSPIRACIES, RATHER THAN THE
SINGLE UNITARY CONSPIRACY CHARGED IN THE INDICTMENT . . . . . . . . . . . . . . . . 3
A.

As a Threshold Matter, Venue Has Not Been Established In the Southern
District of New York for the Multiple Conspiracies Alleged Against Mr. Ulbricht . . . . . 4

B.

The Conduct Alleged Does Not Fall Within the Scope of the Single Charged Conspiracy
and Is Thus Inadmissible As Irrelevant Pursuant to Rules 401 and 402 . . . . . . . . . . . . . . 6

C.

The Admission of the Evidence and Government Exhibits Would Be
Unfairly Prejudicial to Mr. Ulbricht, Pursuant to Rule 403, Fed.R.Evid. . . . . . . . . . . . . 7

POINT II
ANY AND ALL EVIDENCE AND/OR REFERENCES
TO THE “MURDER-FOR-HIRE” ALLEGATIONS
SHOULD BE PRECLUDED AT TRIAL, AND ANY
AND ALL SUCH LANGUAGE SHOULD BE STRICKEN
FROM THE SUPERSEDING INDICTMENT, BECAUSE
THEY ARE NOT RELEVANT TO THE CHARGED OFFENSES
AND/OR, UNDER RULE 403, FED.R.EVID., THEIR UNFAIR
PREJUDICIAL EFFECT SUBSTANTIALLY OUTWEIGHS
i

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 13 of 121

ANY PROBATIVE VALUE THEY MIGHT POSSESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.

The Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B.

Any and All References to the “Murder-For-Hire” Allegations Should Be
Precluded At Trial, And Stricken from the Superseding Indictment As Surplusage,
Because They Are Irrelevant to the Charged Offenses and Unduly Prejudicial . . . . . . . 11
1.
2.

The “Murder-For-Hire” Allegations Should Be
Excluded Because They Are Irrelevant to the Charges . . . . . . . . . . . . . . . . . . . . 12
The “Murder-For-Hire” Allegations Should Be Excluded
Because They Are Unduly Prejudicial Pursuant to
Rule 403, Fed.R.Evid., As Any Probative Value Is Vastly
Outweighed by Their Extraordinary Danger of Unfair Prejudice . . . . . . . . . . . 14

POINT III
CERTAIN GOVERNMENT EXHIBITS SHOULD
BE PRECLUDED BECAUSE THEY ARE NOT
SUFFICIENTLY AUTHENTICATED PURSUANT
TO RULE 901, FED.R.EVID., AND RECENT CASE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A.

The Applicable Law Regarding Authentication Under Rule 901 . . . . . . . . . . . . . . . . . . 16

B.

The Facts and Opinion In Vayner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C.

Vayner’s Application to the Government’s Proposed Exhibits In This Case . . . . . . . . . 20

POINT IV
CERTAIN EVIDENCE AND GOVERNMENT EXHIBITS
ALLEGING PURCHASE OF FALSE IDENTIFICATION
DOCUMENTS SHOULD BE PRECLUDED BECAUSE THEY ARE
NOT REASONABLY DEMONSTRATIVE OF “CONSCIOUSNESS
OF GUILT,” AND/OR THEIR PROBATIVE VALUE, IF ANY,
IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF
UNFAIR PREJUDICE TO MR. ULBRICHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A.

The Law Applicable to Admissibility of “Consciousness of Guilt” Evidence . . . . . . . . . 21

B.

Mr. Ulbricht’s Alleged Purchase of False Identification
Documents from the Silk Road Web Site Is Insufficient to
Reasonably Infer His Consciousness of Guilt of the Crimes Charged . . . . . . . . . . . . . . 23

ii

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C.

Alternatively, Evidence of the Alleged Ordering of False Identification Documents Must
Be Excluded Under Rule 403 As Substantially More Prejudicial Than Probative . . . . . 24

POINT V
THE GOVERNMENT’S NOVEMBER 21, 2014, LETTER
SHOULD BE UNSEALED, AND THE INFORMATION
AND EVIDENCE THEREIN SHOULD BE ADMISSIBLE
AT TRIAL BECAUSE IT IS RELEVANT AND EXCULPATORY,
THEREBY ESTABLISHING A COMPELLING NEED FOR UNSEALING . . . . . . . . . . . . . . 25
A.

The Government’s November 21, 2014, Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B.

The Principles Applicable to Exculpatory Material and Information . . . . . . . . . . . . . . . 27

C.

Evidence Related to the Investigation of Misconduct by Former SA Force
During the Silk Road Investigation Is Both Material and Favorable to Mr. Ulbricht . . 28

D.

The Evidence Related to the Investigation of Former SA Force
Should Be Unsealed Because It Constitutes Brady Material, Thus
Providing a Compelling and Particularized Need for Its Disclosure . . . . . . . . . . . . . . . 29

POINT VI
OTHER OBJECTIONS TO THE GOVERNMENT’S
PROPOSED EXHIBITS NOT COVERED ABOVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iii

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POINT V
THE GOVERNMENT’S NOVEMBER 21, 2014, LETTER
SHOULD BE UNSEALED, AND THE INFORMATION AND
EVIDENCE THEREIN SHOULD BE ADMISSIBLE AT TRIAL
BECAUSE IT IS RELEVANT AND EXCULPATORY, THEREBY
ESTABLISHING A COMPELLING NEED FOR UNSEALING
In its November 21, 2014, letter to the Court, and subsequently provided to defense
counsel December 3, 2014, the government disclosed an ongoing investigation of Carl Force, a
former Special Agent with the Drug Enforcement Administration (“DEA”). The investigation
has thus far revealed that former SA Force allegedly used his position as a DEA agent for selfgain by leaking investigative information to the operator of Silk Road in exchange for payment,
and hijacking a cooperating witness’s Silk Road account to obtain $350,000 in Bitcoins.
The government submitted its letter, and provided a copy to defense counsel, pursuant to
Rule 6(e), Fed.R.Crim.P., and sought and obtained in that context an Order, dated December 3,
2104, maintaining under seal the letter and the information provided therein.
However, for the reasons set forth below, and in the ex parte letter provided
contemporaneously with theses motions, it is respectfully submitted that the information in the
government’s November 21, 2014, letter, is exculpatory, and should therefore be unsealed,
available to the defense to perform a complete investigation, and admissible at trial.
A.

The Government’s November 21, 2014, Letter
In its November 21, 2014, letter, at 1, the government informed the Court that former SA

Force “is the undercover agent whom Ulbricht allegedly hired to arrange the murder-for-hire, as
described in that indictment[,]” and that former SA Force “is now being investigated by USAOSan Francisco for, among other things, leaking information about USAO-Baltimore’s

25

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investigation to Ulbricht in exchange for payment, and otherwise corruptly obtaining proceeds
from the Silk Road website and converting them to his personal use.”
The government’s letter, at 2, adds that “USAO San Francisco first began investigation
former SA Force in the Spring of 2014[,]” yet the information about the investigation was not
disclosed to the defense in this case until December 3, 2014, essentially one month prior to trial.
The government, in its letter, at 1, claims that it “does not believe that the ongoing investigation
of SA Force is in any way exculpatory as to Ulbricht or otherwise material to his defense[,]”
it has now disclosed the information “in an abundance of caution[.]”
However, that is simply a tacit admission that the government itself recognizes the
potentially exculpatory value of the information, even if it not capable of articulating it either to
the Court or even itself [and that continued withholding of the information would be contrary to
the government’s obligations under Brady v. Maryland, 373 U.S. 83 (1963)]. Nevertheless, as
detailed in the accompanying ex parte letter, the relevant and exculpatory character of the
information is abundantly clear to defense counsel.
Also, while the government, in its letter, at 1, asserts that former SA Force “played no
role” in SDNY’s investigation of Silk Road, the connection is obvious and inescapable from the
fact that the government, in its letter, at 2, admits that SDNY “has been assisting USAO-San
Francisco with its investigation, by sharing relevant evidence collected from this Office’s
investigation of Silk Road, including evidence from the server used to host the Silk Road website
(the “Silk Road Server”) and evidence from Ulbricht’s laptop computer.”

26

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B.

The Principles Applicable to Exculpatory Material and Information
Given the nature of former SA Force’s alleged misconduct during the investigation of the

Silk Road web site, evidence related to that investigation must be unsealed and disclosed to the
defense in order to afford Mr. Ulbricht Due Process and satisfy Brady v. Maryland, 373 U.S. 83
(1963), and its progeny.
Brady and a series of subsequent cases impose an affirmative duty on the government to
disclose all evidence which is material and favorable to the defendant, either because it is
exculpatory or as impeachment material, in compliance with the due process clause of the Fifth
Amendment. Brady v. Maryland, 373 U.S. 83 (1963) (“evidence is material either to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution”); see also Giglio v.
United States, 405 U.S. 150, 154 (1972) (if the reliability of a witness “‘may well be
determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within
this general rule” of disclosure).
Contrary to the government’s claims, the evidence is both material and potentially
exculpatory, and consequently must be disclosed under Brady. Furthermore, the due process
right to Brady material in a manner that allows effective use of exculpatory evidence, certainly
establishes a compelling and particularized need to modify the protective order to permit a
defense investigation, as well as use of admissible evidence at trial. See e.g., Martindell v. Int'l
Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979); see also Dennis v. United States, 384 U.S.
855, 868 (1966).

27

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C.

Evidence Related to the Investigation of Misconduct by Former SA Force
During the Silk Road Investigation Is Both Material and Favorable to Mr. Ulbricht
In the retrospective context, evidence must be disclosed pursuant to Brady when there is

a “reasonable probability . . . that the outcome would have been different if disclosure had been
made.” United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001). A reasonable probability of a
different outcome “is not a sufficiency of evidence test,” and thus, does not require that the
“evidence would have rendered the evidence as a whole insufficient to support a conviction.”
United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995), quoting Kyles, 514 U.S. at 435.
Rather, evidence which must be disclosed is that which “could reasonably [have been]
taken to put the whole case in such a different light as to undermine confidence in the verdict.”
United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001), quoting Kyles v. Whitley, 514 U.S.
419, 435 (1995). As the Second Circuit has held, even when evidence may be both inculpatory
and exculpatory, its disclosure is not thus precluded under Brady. See United States v. Mahaffy,
693 F.3d 113, 130 (2d Cir. 2012) (“[t]he fact that the government is able to argue that portions of
the transcripts were consistent with the prosecution’s theory fails to lessen the exculpatory force”
of the remaining parts); see also United States v. Rivas, 377 F.3d 195, 199-200 (2d Cir. 2004).
Here, though, in the pretrial context, as discussed post, disclosure has a broader context.
Thus, when the “exculpatory character harmonize[s] with the theory of the defense case” failure
to disclose that evidence constitutes a Brady violation. Id., quoting United State v. Triumph
Capital Grp., 544 F.3d 149, 164 (2d Cir. 2008). That harmony with defense theories is detailed
in the accompanying ex parte letter.

28

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D.

The Evidence Related to the Investigation of Former SA Force
Should Be Unsealed Because It Constitutes Brady Material, Thus
Providing a Compelling and Particularized Need for Its Disclosure
The timeliness requirement incorporated in the Brady disclosure obligation compels

disclosure of materially favorable evidence in sufficient time to permit the defense the
opportunity to use it effectively before trial. Coppa, 267 F.3d at 142 (whether the disclosure is
made in a timely fashion depends on the “sufficiency, under the circumstances, of the defense’s
opportunity to use the evidence when disclosure is made”); see also United States v.
Solomonyan, 451 F.Supp.2d 626, 644-645 (S.D.N.Y. 2006).
Thus, implicit in the government’s Brady obligation is the requirement that the defense is
able to use the materially favorable evidence, even if only to uncover additional exculpatory
evidence. See e.g. United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (materially favorable
evidence, even if not admissible itself, must be disclosed pursuant to Brady if it “could lead to
admissible evidence”). Indeed, in Gil, the inclusion of critical exculpatory (and impeachment)
information in boxes of documents produced pursuant to 18 U.S.C. §3500 the weekend prior to
trial was deemed insufficient notice. Id., at 106-07.
Consequently, although the interests in maintaining grand jury secrecy are certainly
stronger while an investigation is ongoing, unsealing is necessary here because evidence of an
investigation of former SA Force is exculpatory, and thus Brady material, disclosure of which is
necessary to avoid “a possible injustice.” See generally Douglas Oil Co. Of California v. Petrol
Stops Northwest, 441 U.S. 211 (1979) (requiring a showing that “material [sought] is needed to
avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater
than the need for continued secrecy, and that their request is structured to cover only material so

29

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needed”). Certainly, the right to pre-trial access to Brady material presents a particularized
and/or compelling need for its unsealing and disclosure. See e.g. United States v. Youngblood,
379 F.2d 365, 367 (2d Cir. 1967); see also Dennis, 384 U.S. at 868-70 (“disclosure, rather than
suppression, of relevant materials ordinarily promotes the proper administration of criminal
justice”).
In that regard, in a pretrial rather than appellate context – with the latter involving post
hoc considerations of materiality and harmless error – it is respectfully submitted that Dennis
compels pretrial disclosure in this case to promote a fair trial for Mr. Ulbricht, and afford him
Due Process. See also Kathleen Ridolfi, Tiffany M. Joslyn, and Todd H. Fries, Material
Indifference: How Courts Are Impeding Fair Disclosure In Criminal Cases, National
Association of Criminal Defense Lawyers and The Veritas Initiative (Santa Clara University
School of Law), November 17, 2014.6
Accordingly, Mr. Ulbricht’s due process right to exculpatory evidence under Brady
warrants unsealing, and admitting at trial, evidence related to the improper conduct alleged
against former SA Force in the government’s November 21, 2014, letter.

6

The Executive Summary of the NACDL/Veritas Report laments that
[a]cross the nation prosecutors are guiding their disclosure
obligations by a post-trial standard that some courts have decried
as unworkable in the pre-trial context. Prosecutors are ill-equipped
to apply a post-trial standard to a pre-trial obligation without the
benefit of the defense perspective and with their natural biases as
zealous advocates. Taking their cues from the courts, prosecutors
are acting to the detriment of the defense and fair process.

NACDL/Veritas Report, at xv (Executive Summary).
30

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
————————————————————————)(

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ~~~~~~­
DATE FILED: DEC 1 2

2014

UNITED STATES OF AMERICA
14 Cr. 68 (KBF)
-v-

SEALED ORDER
ROSS WILLIAM ULBRICHT,
Defendant.
————————————————————————)(
KATHERINE B. FORREST, District Judge:
A conference in this matter is scheduled for Monday, December 15, 2014 at 10:00
a.m. In advance of that conference and not later than 9:00 a.m. that day, the
Government shall respond, by letter, to the following:

1. Is the fact of, or any aspect of the Government's investigation of Carl Force
public or otherwise known to persons or entities outside of the grand jury, the
investigators directly involved in that case or any cases involving Mr.
Ulbricht?
2. Does Mr. Force know he is under investigation?
3. If the fact of the investigation is not publicly known, what (if any) harm
would the Government suffer if it became known?
4. What's the status of the investigation?

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 22 of 121

5. Would the Government be able to reveal any of the facts regarding Mr.
Force's conduct without endangering the grand jury investigation? If so,
which ones? If no facts are known, why not?

SO ORDERED:
Dated:

New York, New York
December I.'l…;- 2014

r

TS-~

KATHERINE B. FORREST
United States District Judge

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Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 24 of 121

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 25 of 121

Thoward1UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
————————————x
UNITED STATES OF AMERICA
-v.-

:
:

ROSS ULBRICHT,
a/k/a “Dread Pirate Roberts,”
a/k/a “DPR,”
a/k/a “Silk Road,”

S1 14 Cr. 68 (KBF)

:
:
:

Defendant.
:
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

MEMORANDUM OF LAW IN OPPOSITION
TO THE DEFENDANT’S MOTIONS IN LIMINE

PREET BHARARA
United States Attorney
Southern District of New York
Attorney for the United States of America

TIMOTHY T. HOWARD
SERRIN TURNER
Assistant United States Attorneys
Of Counsel

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 26 of 121

flight, where there was no other evidence that defendant had become a fugitive). Nor is there
any evidence of some other unrelated criminal conduct in which Ulbricht was engaged that could
explain his conduct. Cf. United States v. Diallo, 461 Fed. Appx. 27, 30 (2d Cir. 2012)
(considering, and rejecting, argument that admission of flight evidence was improper because
defendant's flight could be explained by fact that he was trafficking in illegal cigarettes, rather
than committing robberies).
Finally, as asserted previously, the Court should not exclude evidence of the false
identification documents under Rule 403. (Id. at 18-19). The evidence regarding Ulbricht’s
attempts to obtain fraudulent identification documents is highly probative, and his attempts to
obtain nine fake identification documents on a single occasion are not any more “sensational or
disturbing” than the scope of the alleged offenses in this case, which include a large-scale
narcotics trafficking conspiracy, among other things, such that there would be any legitimate risk
that the evidence will “arouse irrational passions” among the jurors. (Id. at 19).
V.

THE DEFENDANT’S APPLICATION TO UNSEAL INFORMATION
REGARDING THE INVESTIGATION OF DEA SPECIAL AGENT CARL
FORCE AND TO ADMIT THAT EVIDENCE AT TRIAL SHOULD BE
REJECTED
The defendant seeks to unseal evidence regarding an ongoing investigation into a former

Special Agent (“SA”) with the Drug Enforcement Administration (“DEA”), named Carl Force,
and to use that evidence affirmatively at trial. As set forth below, the defendant’s request should
be rejected, for many reasons, including because the evidence is irrelevant and inflammatory and
because there is no sound, particularized need to disclose the evidence that outweighs the interest
in protecting the secrecy and integrity of the ongoing grand jury investigation.

14

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 27 of 121

A.

Facts

By letter dated November 21, 2014, the Government sent an ex parte letter to the Court,
which provided details regarding an ongoing grand jury investigation into SA Carl Force being
conducted by the U.S. Attorney’s Office for the Northern District of California (“USAO-San
Francisco”), in conjunction with the Public Integrity Section of the Criminal Division of the
Department of Justice (the “Force Letter”). The Force Letter requested leave to disclose the
contents of the letter to defense counsel pursuant to Rule 6(e)(3)(E), accompanied by a protective
order prohibiting the disclosure of the Force Letter and the existence of the USAO-San Francisco
investigation of SA Force outside the defense team. The Court granted that request on December
1, 2014, and the Force Letter was provided to counsel for the defendant later that same day.
As set forth in the Force Letter, SA Force participated in an unrelated investigation of
Silk Road coordinated by the U.S. Attorney’s Office for the District of Maryland (“USAOBaltimore”). The Government has not relied on and is not offering any evidence obtained by
that investigation in this case. USAO-San Francisco is investigating allegations that SA Force
has converted hundreds of thousands of dollars’ worth of Bitcoins into U.S. currency and
deposited them into his personal accounts. With respect to SA Force’s involvement in the
USAO-Baltimore investigation of Silk Road, USAO-San Francisco is investigating whether SA
Force may have: (1) leaked or offered to leak investigative information to Ulbricht regarding the
USAO-Baltimore investigation in exchange for payments from Ulbricht; (2) used access to the
Curtis Green (“Flush”) account to steal approximately $350,000 worth of Bitcoins from Silk
Road; and (3) received two payments totaling approximately $85,000 worth of Bitcoins, which
were undocumented and converted for personal use. (Force Letter at 2-5).
B.

Discussion

15

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As set forth in the Force Letter, SA Force did not play any role in this investigation, the
Government does not intend to call SA Force at trial, and the Government is not using any
evidence obtained in the USAO-Baltimore investigation in this case. 2 Accordingly, the facts
underlying the ongoing grand jury investigation of SA Force does not constitute impeachment
material for which disclosure would be required under Giglio v. United States, 405 U.S. 150
(1972). (Force Letter at 5). Nor do those facts exculpate Ulbricht in any manner, or otherwise
aid the defense. (Id.).
As a threshold matter, the grand jury investigation into whether SA Force was involved
in leaking sensitive law enforcement investigation information to the defendant, and that he may
have converted Bitcoins provided to him by the defendant, do not exculpate Ulbricht in any way,
and is not helpful to the defense. (Force Letter at 5). Even if substantiated, such evidence is
plainly inculpatory, as Ulbricht’s attempts to gather counterintelligence on law enforcement
efforts is probative of his knowledge and his attempts to protect his illegal enterprise. (Id.).
Similarly, the fact that SA Force may have converted Bitcoins obtained from Ulbricht for his
personal use would, if true, reflect only corruption on SA Force’s part, and would not be relevant
to the question of Ulbricht’s guilt. (Id.).
The Government’s case against Ulbricht is completely independent of evidence gathered
by SA Force, and the only reference to “Nob” that the Government intends to make in its case in
chief are chats where the defendant and other co-conspirators mention him as the party solicited
2

Nor does the Government intend to use at trial any communications between Ulbricht and SA
Force that were found on the Silk Road Server and Ulbricht’s laptop – even though these
communications include highly incriminating exchanges reflecting Ulbricht’s hiring of “nob” to
arrange the murder of Curtis Green. (Force Letter at 6). As discussed in the Government’s
motions in limine, the Government seeks to offer other evidence of the attempted murder for hire
of Green, through communications that the defendant had with co-conspirators “Inigo” and
“cimon” regarding the murder for hire. (Gov. Mot. at 6-7).
16

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by the defendant to arrange for the murder of Curtis Green, a/k/a “Flush.” Regardless of whether
SA Force, Green or anyone else stole the Bitcoins, the identity of the culprit is wholly irrelevant
to the fact that the defendant believed that they were stolen by his employee, “Flush.” Upon
learning that “Flush” had been recently arrested, and fearing that he was cooperating with law
enforcement, Ulbricht made the conscious decision to seek to murder “Flush,” in order to protect
his interests in his underground black market website and the illegal proceeds it generated. Even
assuming that the grand jury’s investigation concludes that SA Force was responsible for stealing
the Bitcoins, that collateral fact is not exculpatory as to Ulbricht, as it does not detract from his
criminal intent in ordering the murder for hire.
The Government understands that the defendant has filed an ex parte letter seeking
authority to admit evidence pertaining to the Force investigation at trial. Because it was
submitted ex parte, the Government is not in a position to respond. Counsel for the defendant
has previously suggested in conversations with counsel for the Government that evidence of the
Force investigation might be helpful to support an entrapment defense, but any such argument
lacks merit. The allegations against SA Force do not tend to prove either of the essential
elements of an entrapment defense, including: (1) government inducement of the crime and (2) a
lack of predisposition on the part of the defendant to engage in criminal conduct. See United
States v. Kopstein, 759 F.3d 168, 173 (2d Cir. 2014). Even if SA Force is found to have stolen
the Bitcoins, he at most caused a situation to which the defendant chose to respond to with
violence, which is wholly insufficient to prove an entrapment defense. United States v.
Cromitie, 727 F.3d 194, 204 (2d Cir. 2013) (“The fact that officers or employees of the
Government merely afford opportunities or facilities for the commission of the offense does not
defeat the prosecution.”). Chat logs obtained from the defendant’s computer plainly indicate that

17

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“Nob” (i.e., SA Force), did not induce Ulbricht’s decision to order “Flush” killed; rather, the
decision to solicit “Flush’s” murder originated from the defendant himself, during conversations
he had with co-conspirators “cimon” and “Inigo.”3
In addition to not being aware of any evidence regarding SA Force’s potential theft and
conversion of Bitcoins that would be exculpatory to the defense, the Government has consulted
with the lead Assistant U.S. Attorney in USAO-San Francisco handling the SA Force
investigation, who has also confirmed their position that USAO-San Francisco is unaware of any
such evidence. The compelling interests in preserving the integrity of the grand jury’s ongoing
investigation simply cannot be overcome by purely speculative and conclusory assertions that
otherwise irrelevant and law enforcement sensitive information is exculpatory. Accordingly, the
Court should deny the defendant’s application to unseal the ongoing grand jury investigation and
reject the defendant’s application to disclose any evidence concerning that investigation at trial.

3

Relevant excerpts of the chat logs reflecting discussions between the defendant, SA Force
as “Nob,” “Inigo,” and “cimon” regarding Flush are attached as Exhibit A. Those chat logs
indicate that: (1) “Inigo” first discovered the theft of the Bitcoins via the “Flush” account and
reported it to Ulbricht, and Ulbricht reported the theft to Nob (pp. 1-2); (2) Ulbricht identified
“Flush” to “Nob” as Curtis Green and asked if he could arrange to “get someone to force him to
return the stolen funds” (p. 5); (3) “Nob” replied by asking in an open-ended fashion whether
Ulbricht wanted him “beat up, shot, just paid a visit,” and the defendant responded at the time by
instructing “Nob” to arrange to have Green “beat up” (p. 5); (4) “cimon” initiated a discussion
with Ulbricht about whether they should consider executing Green, and Ulbricht eventually
agreed (pp. 11-13); (5) the very next time that Ulbricht spoke with Nob, Ulbricht, unprompted,
requested that Nob change the order from “torture to execute,” even after Nob told Ulbricht that
beating Green up would not cost Ulbricht anything, but that Ulbricht would have to pay for a
murder for hire (pp. 18-20); and (6) Nob quoted a price of $80,000 in United States currency for
the hit, to which Ulbricht agreed (p. 21). As noted in the Force Letter, the Government does not
intend to use the portions of the chat logs involving Nob at trial, even though the logs are highly
inculpatory.
18

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EXHIBIT A
Compilation of Torchat Logs Seized from Ulbricht Laptop Reflecting
Communications with SA Force (“Nob”), “Inigo” and “Cimon”
Between January 26, 2013 at 3:39 a.m. and January 29, 2013 at 12:49 p.m. 1

(2013-01-26 03:39) inigo (laptop): [delayed] i hope you get online soon.
we are under attack over 100k stolen, shits hitting the fan you need to
pull the plug on withdrawals
[delayed] over 300k stolen. i think i figured out how to contain it.
[delayed] as far as I can tell it was flush, and he managed to steal a
little over $350k
[delayed] either that or somebody with access to his account
[delayed] but my hunch is that it was him.
[delayed] fortunately i was able to stop it before it got any further
[delayed] looks like he took 900bitcoins from the petty cash fund, and the
rest by changing vendors passwords and resetting their pins, and then
logging into their accounts to wipe out their balances
[delayed] ive been up all night frantically trying to stop this massive
theft, i need to catch a few zzz's
[delayed] ill be back on in a few hours. hopefully in time to see you get
online
(2013-01-26 03:41) myself: you there?
(2013-01-26 04:47) myself: yea, this makes me sick to my stomache. I
decrypted his ID and did some digging. He was arrested for cocaine
posession last week. I think this stuff about his daughter was a tale.
This will be the first time I have had to call on my muscle. fucking
sucks.

(2013-01-26 10:42) Nob: [delayed] my friend you up
(2013-01-26 10:43) myself: i am
(2013-01-26 10:43) myself: how are you amigo?
(2013-01-26 10:43) Nob: I'm tired D, real tired
(2013-01-26 10:44) myself: not enough sleep?
(2013-01-26 10:44) Nob: no I'm working too hard. overseeing three good
size loads coming from South America up here into U.S.
(2013-01-26 10:45) myself: lots of people to coordinate?
(2013-01-26 10:46) Nob: yes, heah i just saw your message on SR
(2013-01-26 10:46) myself: yea, not a ton of money, but it pisses me off
to no end. I trusted the guy too much
(2013-01-26 10:47) Nob: ok, who is it and where is he
(2013-01-26 10:48) myself: ill send you his ID
(2013-01-26 10:48) Nob: how?
(2013-01-26 10:48) myself: I had him send it to me when I hired him
(2013-01-26 10:48) myself: for just this kind of situation
(2013-01-26 10:49) myself: he was recently arrested for cocaine possession
on Jan 17th
1

Torchat communications between Ulbricht and SA Force (“Nob”) are included in their entirety for this designated
time period. Torchat ommunications between Ulbricht and “Inigo”/”Cimon” are excerpts of relvant portions
regarding the theft of Bitcoins by Curtis Green, a/k/a “Flush.”

1

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 32 of 121

(2013-01-26 10:50) Nob: that wasn't the kilo that I sent was it. because
I'm going to be pissed
(2013-01-26 10:50) myself: did you send it to UTAH?
(2013-01-26 10:52) Nob: yes, it's an address that googleyed gave to me.
and i'm having problems with him/her
(2013-01-26 10:52) myself: are you serious!
(2013-01-26 10:52) Nob: yes what the mierda
(2013-01-26 10:52) myself: mierda?
(2013-01-26 10:53) Nob: what you want done? what the fuck is up with the
googleyed. i don't need this shit
(2013-01-26 10:54) Nob: and who is the frickin idiot?
(2013-01-26 10:54) myself: I'm incredibly sorry nob, but this guy on the
ID
(2013-01-26 10:54) myself: he's the one I asked to set you up with vendors
(2013-01-26 10:55) myself: he must have somehow tricked you into sending
the kilo to him instead of googleyed
(2013-01-26 10:55) Nob: ok what do you want done with him?
(2013-01-26 10:55) myself: he then took advantage of some of the tools I
gave him to do vendor support to rip a bunch of vendors off, who I will
have to compensate
(2013-01-26 10:56) Nob: i'm not worried. i didn't send it out. but
googleyed worries me. you sure he/she is ok?

(2013-01-26 10:56) inigo (laptop): im back online now

(2013-01-26 10:57) myself: I'm not sure about googleyed.
out of their account by this guy 24 hours ago
(2013-01-26 10:57) myself: more like 12 hours ago

they were locked

(2013-01-26 10:57) inigo (laptop): if you want me to get on a plane and go
find him, just say the word
(2013-01-26 10:57) myself: I have someone on it
(2013-01-26 10:57) myself: thank you though
(2013-01-26 10:57) inigo (laptop): i really wish i could have figured it
out faster and stopped him before he took so much

(2013-01-26 10:58) myself: you didn't send the kilo?
about a second order?

or are you talking

(2013-01-26 10:58) inigo (laptop): i noticed it as soon as he started,
luckily, but it took me a few hours to figure out what was happeneing and
realize how to stop it
(2013-01-26 10:58) myself: how did you stop it?
(2013-01-26 10:58) inigo (laptop): by resetting the password to his
account
(2013-01-26 10:58) myself: oh, smart
(2013-01-26 10:58) inigo (laptop): as soon as i did that the stealing
stopped

2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 33 of 121

(2013-01-26 10:59) Nob: i sent the kilo and G-eyed did pay so. G-eyed is
talking about doing a second order for five kilos to the UK.
(2013-01-26 10:59) myself: you sent one kilo to the utah address?

(2013-01-26 10:59) inigo (laptop): i was watching the bitcoin address that
he was sending all the coins to
(2013-01-26 10:59) inigo (laptop): 20000 btc by the time i cut off his
admin access
(2013-01-26 10:59) myself: I even had the thought that I was putting too
much trust in you guys and should give one pin reset power and the other
pass reset power
(2013-01-26 10:59) inigo (laptop): that would have been a good idea
(2013-01-26 11:00) inigo (laptop): i wish i had a kill switch
(2013-01-26 11:00) inigo (laptop): for the site
(2013-01-26 11:00) inigo (laptop): or for withdrawals at least
(2013-01-26 11:00) myself: withdrawals at least
(2013-01-26 11:00) inigo (laptop): i could have stopped it at under $60k
(2013-01-26 11:00) myself: yea, a w/d kill switch is a good idea
(2013-01-26 11:00) inigo (laptop): im sorry it got so far. but i hate to
think how much more he could have stolen
(2013-01-26 11:01) inigo (laptop): i just wish i could have been faster
(2013-01-26 11:02) inigo (laptop): 350k is a lot of money. it will take
him a while to cash it all out. if we can find him first maybe something
can be done

(2013-01-26 11:03)
it so i'll have to
(2013-01-26 11:03)
(2013-01-26 11:04)
(2013-01-26 11:04)
where did you send

Nob: yes a utah address, but like i said; i didn't send
reach out and get the exact address
myself: let me see if I understand…
Nob: i had my people send it. i never touch the dope
myself: you sent a kilo to geyed, which he received.
that one? who asked for the kilo to utah?

(2013-01-26 11:04) inigo (laptop): it was sheer luck that i noticed it, i
had sent my coins to sugar mama to cash out my paycheck, and i kept
looking her up to see if she was back online because im flat broke and was
really antsy for her to send me the MP codes (which she still hasnt done
thanks to this mess) and then i noticed her balance drop to 0, and she
made a forum post about it

(2013-01-26 11:05) Nob: googleyed gave me an address in utah to send the
kilo. googleyed requested that the kilo go to utah.

(2013-01-26
the bitcoin
top vendors
(2013-01-26

11:05) inigo (laptop): so i started to investigate, searched
address that her coins were withdrawn to, and noticed that 4
had withdrawn to the same address
11:05) inigo (laptop): about 1000 bitcoins from each

3

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 34 of 121

(2013-01-26 11:06) Nob: g-eyed said she got it that is why she finalized,
but he/she isn't leaving feedback on SR which is pissing me off

(2013-01-26 11:06) inigo (laptop): then i started talking with sugar mama
and figured out that her pin and pass had been reset, and that led me to
realize it was someone with admin access and not a virus or malicous code
(2013-01-26 11:06) inigo (laptop): so then i just thought the best shot i
had to stop it was reset flush's password
(2013-01-26 11:06) inigo (laptop): cut off his admin access

(2013-01-26
(2013-01-26
(2013-01-26
(2013-01-26
(2013-01-26
(2013-01-26
(2013-01-26
of this
(2013-01-26
for me

11:07)
11:07)
11:07)
11:07)
11:07)
11:07)
11:08)

myself: where was the first kilo sent?
myself: was it ireland?
Nob: to utah
myself: do you have the exact address?
Nob: next five kilos are supposed to go to ireland
myself: does it match the id?
myself: ok, don't send them until I get to the bottom

11:08) Nob: i have to call back to my guy who sent the kilo

(2013-01-26 11:08) inigo (laptop): by then his address had racked up 20k
btc
(2013-01-26 11:09) inigo (laptop): also, what really led me to thinking it
was him, was the fact that sealswithclubs got ddos'd yesterday
(2013-01-26 11:09) inigo (laptop): and was held at ransom
(2013-01-26 11:09) myself: oh damn
(2013-01-26 11:09) inigo (laptop): and theres only one person i know with
ties to SR and sealswithclubs
(2013-01-26 11:09) myself: what sleaze
(2013-01-26 11:09) inigo (laptop): flush told me that he knew the owner
really well
(2013-01-26 11:09) myself: he told me that too
(2013-01-26 11:09) inigo (laptop): yeah so he must have organized an
attack on his site as well

(2013-01-26 11:10) Nob: yes, i need you to let me know what is going on

(2013-01-26 11:10) inigo (laptop): some desperate attempt to get as much
as he could in one day
(2013-01-26 11:10) inigo (laptop): fucking scumbag
(2013-01-26 11:10) myself: so, I have a friend that smuggles heroin for
cartels. I'm chatting with him now. he has muscle everywhere and will
get to him quickly.

(2013-01-26 11:11) myself: I will.

what do you want to do about Curtis

4

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 35 of 121

(2013-01-26 11:11) inigo (laptop): ah you must be referring to the guy
that was offering free full auto AR's with his heroin
(2013-01-26 11:11) inigo (laptop): the guy with ties to FARC
(2013-01-26 11:11) inigo (laptop): nob or something like that

(2013-01-26 11:12) myself: If you can get someone to force him to return
the stolen funds, that would be amazing
(2013-01-26 11:12) Nob: personally, I don't want any contact. i'm clear.
if you want something done, i can help you discreetly

(2013-01-26 11:12) inigo (laptop): if thats who your talking about, then
he would seem like the perfect person for the job

(2013-01-26 11:13) myself: what do you mean?

(2013-01-26 11:13)
(2013-01-26 11:13)
(2013-01-26 11:14)
people are hard to

myself: this is someone else
inigo (laptop): oh ok
inigo (laptop): i can't believe he pulled this. some
read

(2013-01-26 11:15) Nob: do you want him beat up. shot, just paid a visit?

(2013-01-26 11:16) inigo (laptop): so just out of curiousity i pulled up
the messages from "chronicpain" since he revealed thats who he used to be
(2013-01-26 11:16) inigo (laptop): he was logged in 17 hours ago

(2013-01-26 11:17) myself: I'd like him beat up, then forced to send the
bitcoins he stole back. like sit him down at his computer and make him do
it
(2013-01-26 11:17) myself: beat up only if he doesn't comply I guess
(2013-01-26 11:17) myself: not sure how these things usually go
(2013-01-26 11:18) Nob: remember that guy in Africa? you wanted me to put
a gun to that guy's head while he is logged on SR and take a picture. you
want that?
(2013-01-26 11:18) myself: no thanks
(2013-01-26 11:18) myself: just don't want him to have that money
(2013-01-26 11:19) Nob: ok, you just want him beat up and send you money
back; the guy I'm going to send knows nothing about computers so he won't
know whether or not the mark has the funds or even if he sent it
(2013-01-26 11:20) myself: we could give him a letter to give curtis
(2013-01-26 11:21) myself: so the message doesn't get mixed up
(2013-01-26 11:21) myself: and if I know when he is paying him a visit, I
can tell him to log on to torchat to talk to me while your man is there
(2013-01-26 11:22) myself: so I can be loged in when he goes to his house
(2013-01-26 11:22) Nob: ok, you write the letter and send it to me. i'll
get the exact address where the kilo was sent. please check into
googleyed, this doesn't make sense to me

5

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 36 of 121

(2013-01-26 11:23) myself: ok
(2013-01-26 11:23) Nob: just forget about googleyed, i'm cutting ties
(2013-01-26 11:24) Nob: be back in contact later today or tomorrow; stay
out of trouble, i can't loose you now
(2013-01-26 11:24) Nob: should be can't lose you now, frickin spanish to
english bullshit … so tired can't think straight
(2013-01-26 11:24) myself: how quickly do you think you can get someone
over there? and what does that cost you? is it worth the hassle?
(2013-01-26 11:25) Nob: not sure. it is going to cost money because it's
not my people
(2013-01-26 11:26) myself: ok, if it costs more than we can recover, then
obviously we should not go through with it
(2013-01-26 11:27) Nob: shit, shit, shit; we don't need this, one step
forward, two steps back
(2013-01-26 11:27) myself: i know, it's a pain
(2013-01-26 11:27) Nob: ok talk at you
(2013-01-26 11:27) myself: we don't have to do anything if you don't want
(2013-01-26 11:27) myself: talk to you soon
(2013-01-26 11:28) Nob: ok, i'll let you know
(2013-01-26 11:28) Nob: i'm confident that I'm clear; googleyed on the
other hand

(2013-01-26 11:29) inigo (laptop): weird
(2013-01-26 11:32) inigo (laptop): flush has to be an idiot to steal from
you knowing that you know where he lives. he must be going on the run
(2013-01-26 11:32) myself: maybe so
(2013-01-26 11:33) myself: i assumed that would be enough to deter him
from doing anything like this
(2013-01-26 11:33) inigo (laptop): you may need to hire some private eyes
to find him. somebody thats a pro in finding fugatives and missing people
(2013-01-26 11:33) myself: yea
(2013-01-26 11:34) inigo (laptop): like i said if need be you always have
me at your disposal if you locate him and need somebody to go handle it
(2013-01-26 11:35) myself: thanks. I want to go kick his ass myself, but
let's leave it to the pros
(2013-01-26 11:35) inigo (laptop): k

(2013-01-26 11:46) myself: here's the note
(2013-01-26 11:46) myself: Curtis,
Send the bitcoins you stole to the following address immediately:
1p6QfxXEdHTFPkVPx1nFJXqpfiyEKXBNG
Tell the person who just gave you this note after one confirmation on the
blockchain.
-DPR
(2013-01-26 11:47) myself: then we'd have to get the guy to give us
confirmation so we can check the blockchain.
(2013-01-26 11:48) myself: I'd actually like to go through with this even
if it costs more than we can recover. I would like the experience in case
something like this happens again.

(2013-01-26 11:48) myself: you there?

6

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 37 of 121

(2013-01-26 11:48)
(2013-01-26 11:49)
everything zeroed
(2013-01-26 11:49)
(2013-01-26 11:49)
(2013-01-26 11:49)
(2013-01-26 11:49)

inigo (laptop): yep
myself: ok, let's tackle the support page until we have

(2013-01-26 11:50)
see if I can get a
(2013-01-26 11:50)
(2013-01-26 11:50)
(2013-01-26 11:50)

Nob: ok got it. i'll get back to you with address and
"friend" over to visit your guy
myself: ok
myself: thanks nob
Nob: no problem my friend. te amo

myself: what are you working on right now?
inigo (laptop): customer messages
myself: ok, I'll do vendor messages
inigo (laptop): k

(2013-01-26 13:24) myself: while I'm fixing this…
(2013-01-26 13:24) myself: your with me right inigo?
(2013-01-26 13:24) inigo (laptop): yes sir
(2013-01-26 13:24) myself: i mean… long term
(2013-01-26 13:25) myself: I don't know what I'm doing wrong
(2013-01-26 13:25) myself: or if im doing anything wrong
(2013-01-26 13:25) inigo (laptop): oh yeah absolutely. i swore my loyalty
to you
(2013-01-26 13:25) inigo (laptop): and i will stick by that
(2013-01-26 13:25) inigo (laptop): i take pride in my loyalty above all my
other characteristics
(2013-01-26 13:26) inigo (laptop): where i lack in other fields, you'll at
least get your value out of me by having somebody loyal for life :)
(2013-01-26 13:26) myself: thank you
(2013-01-26 13:27) inigo (laptop): you've given me a chance at a
financially secure future that i didn't have before. while flush may have
been a greedy scumbag, im here for the long run, if anything just to show
my graditude
(2013-01-26 13:28) myself: maybe guys like us are just rarer than I'd
hoped
(2013-01-26 13:29) inigo (laptop): he clearly didn't want to wait, and
wanted to get rich quick. im willing to put in the long hours now and even
stuggle a little bit financially, because i know that in the long run it
will pay off and in a few years i figure ill be making enough that i wont
have to worry about money
(2013-01-26 13:30) inigo (laptop): [delayed] even if its 5-10 years from
now, i see the long run opportunity
(2013-01-26 13:31) myself: that's good, so do I, obviously.
(2013-01-26 13:33) inigo (laptop): ive only been with you for three
months, so i don't expect to have a new car and a nice place to live and
all that good stuff just yet. im willing to earn it.
(2013-01-26 13:33) inigo (laptop): what other details did you find out
about flush's arrest?
(2013-01-26 13:34) inigo (laptop): did it say how much he was caught with?
(2013-01-26 13:34) myself: I haven't dug into it yet
(2013-01-26 13:34) inigo (laptop): yeah i guess its pretty early
(2013-01-26 13:34) myself: we want to move quickly, but I gave the whole
mess over to my guy

7

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 38 of 121

(2013-01-26 13:35) inigo (laptop): just to confirm that he gave you his
real ID, i was able to aquire what i believe to be his identity from the
info he revealed to me
(2013-01-26 13:35) myself: oh really?
(2013-01-26 13:35) inigo (laptop): i made him as Curtis Green from
, Utag
(2013-01-26 13:35) inigo (laptop): utah
(2013-01-26 13:35) myself: yep
(2013-01-26 13:35) myself: how'd you manage that?
(2013-01-26 13:35) inigo (laptop): ok good so that wasn't a fake id
(2013-01-26 13:35) inigo (laptop): he told me about this website that he
owns
(2013-01-26 13:36) myself: what is it?
(2013-01-26 13:36) inigo (laptop):
.com
(2013-01-26 13:36) inigo (laptop): he was trying to recuit me to this
multi level marketing scam
(2013-01-26 13:36) inigo (laptop): so today i looked up who owns that site
(2013-01-26 13:37) myself: this guy is an idiot
(2013-01-26 13:37) inigo (laptop): he also owns a company called anytime
airport shuttle or something like that
(2013-01-26 13:37) inigo (laptop): yeah
(2013-01-26 13:37) inigo (laptop): i found his twitter account too
(2013-01-26 13:37) inigo (laptop): had a picture of the SR logo as his
profile pic
(2013-01-26 13:37) inigo (laptop): i couldn't believe it
(2013-01-26 13:38) inigo (laptop): hasn't made an update since jan 5th tho
(2013-01-26 13:39) myself: what's the name of the twitter account?
(2013-01-26 13:39) inigo (laptop): one sec
(2013-01-26 13:39) inigo (laptop): https://twitter.com/
(2013-01-26 13:40) inigo (laptop): that twitter page also links to his
dads charity's website that he manages
(2013-01-26 13:40) inigo (laptop):
.com
(2013-01-26 13:40) myself: the more you can give me the better
(2013-01-26 13:40) inigo (laptop): he frequents poker tournys in vegas
(2013-01-26 13:42) inigo (laptop): he owns the email address
indolor12@yahoo.com
(2013-01-26 13:43) inigo (laptop): although i couldn't find a record of
that email anywhere online
(2013-01-26 13:43) inigo (laptop): seemed to be a dead end lead
(2013-01-26 13:43) inigo (laptop): idk what the address on his ID is, but
i have him at
(2013-01-26 13:44) myself: that's the same
(2013-01-26 13:45) inigo (laptop): i also have two previous addresses
associated with his name:

(2013-01-26 13:46) inigo (laptop): here's his amazon wishlist:
http://www.amazon.com/gp/registry/registry.html?ie=
(2013-01-26 13:46) inigo (laptop): lol

8

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 39 of 121

(2013-01-26 13:47) inigo (laptop): i think his daughter's name is
and his wife's name is
(2013-01-26 13:47) myself: how do you know that?
(2013-01-26 13:47) inigo (laptop):
(2013-01-26 13:47) inigo (laptop): i have a subscription
(2013-01-26 13:47) myself: whats that?
(2013-01-26 13:47) inigo (laptop): for situaitons like this
(2013-01-26 13:48) inigo (laptop): its a website that pulls up info on
people
(2013-01-26 13:48) myself: oh ok
(2013-01-26 13:48) inigo (laptop): previous addresses, relatives
(2013-01-26 13:48) inigo (laptop): etc
(2013-01-26 13:51) inigo (laptop): my grandparents on my dads side live in
vegas, they're both in their 90's living on their own with lots of health
problems, if he turns up at some poker tourny out there i could kill two
birds with one stone by visiting them and doing some reconossaince mission
on our friend curtis here lol. just keep that in mind in case the
opportunity arrises
(2013-01-26 16:36) myself: be on the look out for vendors screwed by flush
trying to get back in
(2013-01-26 16:36) myself: those ones i mentioned before
(2013-01-26 16:36) inigo (laptop): will do
(2013-01-26 16:37) inigo (laptop): i found the account that he was sending
the password resets to last night. i dont know if that helps, but it gave
me a list of all the vendors he screwed
(2013-01-26 16:37) inigo (laptop): i guess you have that same list tho
(2013-01-26 16:37) myself: yea, I dug through all that as well
(2013-01-26 16:38) inigo (laptop): ok

(2013-01-26 20:00) cimon: Hey there, sexy man. Come in, welcome, buy me a
drink.
(2013-01-26 20:37) myself: [delayed] sup sup
(2013-01-26 20:38) myself: [delayed] oops missed ya. had a little mishap
today I need to run by you. had a csr go rogue and rip me off for $350k
(2013-01-26 20:38) myself: [delayed messages have been sent]
(2013-01-27 00:42) myself: hey, you around?
(2013-01-27 00:43) cimon: yes, give me 5 mins first
(2013-01-27 00:43) myself: no rush
(2013-01-27 00:47) cimon: OK. Howdy, doodie.
(2013-01-27 00:47) cimon: 350k, eh
(2013-01-27 00:47) cimon: fucker
(2013-01-27 00:48) myself: yea, I didn't expect him to do it because I
have his id
(2013-01-27 00:48) cimon: REALLY
(2013-01-27 00:48) myself: but I left myself open to it
(2013-01-27 00:48) cimon: well, tell me a tale Uncle Robert
(2013-01-27 00:48) myself: gave him pin and password reset capabilities.
it was dumb
(2013-01-27 00:48) cimon: ahh – I follow
(2013-01-27 00:49) cimon: enough about the theft, tell me about the organ
donor
(2013-01-27 00:49) myself: I even though I shouldn't, but then I thought,
since i have the id, he'd never do it

9

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 40 of 121

(2013-01-27 00:49) myself: and he did
(2013-01-27 00:49) myself: you wanna see his id?
(2013-01-27 00:49) cimon: How sure are you it's really his ID

(2013-01-27 00:50) cimon: oh yeah, I'm gonna have a chat with him
(2013-01-27 00:50) myself: pretty damn sure
(2013-01-27 00:50) cimon: (2013-01-27 00:51) myself: the story gets moreinteresting
(2013-01-27 00:51) cimon: Well, I'm sure we can tell the diff IRL in real
life betwen some schmoe who has his info lifted, and a guy who's on tor
and also just got 350 k
(2013-01-27 00:51) myself: its deffo him
(2013-01-27 00:51) myself: unless he's super clever
(2013-01-27 00:51) myself: and he isnt
(2013-01-27 00:52) cimon: yeah, that ID looks pretty good
(2013-01-27 00:52) myself: the other csr confirmed alot
(2013-01-27 00:52) cimon: have you run any online searches to see if you
can match the addy
(2013-01-27 00:52) myself: lemme tell you the rest of the story
(2013-01-27 00:53) myself: nob has been bugging me off and on
(2013-01-27 00:53) myself: since you last spoke to him
(2013-01-27 00:53) myself: checking in every few weeks
(2013-01-27 00:53) cimon: Gor for it, I'm gonna have me an afternoon
spliff before my nap — Davids truck broke down, so I'm running the bar
until 4 am tonight
(2013-01-27 00:53) myself: i told him I'd find him a buyer from the
current vendors
(2013-01-27 00:53) myself: i put this guy on the task
(2013-01-27 00:54) myself: curtis
(2013-01-27 00:54) myself: i haven't gotten to the bottom of it yet, but
somehow he impersonated googleyed or something and got nob to ship him a
key of columbias finest
(2013-01-27 00:55) myself: now if you google his name, one of the first
things that comes up is an arrest on Jan 17
(2013-01-27 00:55) myself: for cocaine posession
(2013-01-27 00:55) myself: like 10 days ago
(2013-01-27 00:56) cimon: fuck
(2013-01-27 00:56) myself: I know, right?
(2013-01-27 00:56) cimon: …J

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Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 54 of 121

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

TO BE FILED UNDER SEAL
December 18, 2014
By Hand
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
Enclosed please find copies of reports written by former Special Agent (“SA”) with the
Drug Enforcement Administration (“DEA”), named Carl Force, as requested by the Court on
Monday, December 15, 2014. Copies of these materials were already produced in discovery to
the defendant, on or about March 21, 2014.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
TIMOTHY T. HOWARD
SERRIN TURNER
Assistant United States Attorneys
Southern District of New York
Encl.
Cc:

Joshua Dratel, Esq. (by electronic mail, without enclosure)

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 55 of 121

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

TO BE FILED UNDER SEAL
December 18, 2014
By Electronic Mail
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
The Government writes regarding the defendant’s motion in limine to unseal information
regarding the ongoing grand jury investigation into a former Special Agent (“SA”) with the Drug
Enforcement Administration (“DEA”), named Carl Force, and to use that evidence affirmatively
at trial. As the Government has previously asserted in prior filings, unsealing the requested
information regarding the corruption allegations would result in significant prejudice to the
integrity of the ongoing investigation, and the allegations are wholly irrelevant to the
Government’s case. The information is similarly irrelevant to any potential entrapment defense,
previously suggested by defense counsel.1
Based on questions posed by the Court during sealed portion of the proceedings, the
Government believes that the defendant may be seeking to use allegations from the investigation
to support a defense theory that evidence against the defendant has been fabricated. However, as
set forth below, the Court should deny the defendant’s motion, and preclude the defendant from
introducing evidence of alleged corruption by former SA Force at trial because it would have no
probative value, and because it would turn the case into a mini-trial of SA Force that would
waste time, confuse and mislead the jury, and otherwise unfairly prejudice the Government in
violation of Rule 403 of the Federal Rules of Evidence.

1

The Government addresses these arguments on pages 16 and 17 in its Memorandum of Law in
Opposition to the Defendant’s Motions in Limine, filed on December 12, 2014.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 56 of 121

A.

Background

As set forth in the Government’s prior submissions, former SA Force was involved in a
completely independent investigation into Silk Road based out of the U.S. Attorney’s Office for
the District of Maryland (“USAO-Baltimore”). The Government’s case has not relied on, and is
not offering any evidence obtained by, the USAO-Baltimore investigation in this case. The only
references to Force that the Government intends to make in its case in chief are to his online
undercover identity as “Nob” in TorChat2 logs recovered from Ulbricht’s computer, where the
defendant and other co-conspirators mention “Nob” as the party solicited by the defendant to
arrange for the murder of Curtis Green, a/k/a “Flush.” According to those TorChat logs, the
defendant solicited Green’s murder because he believed that Green had stolen approximately
$350,000 worth of Bitcoins from Silk Road and was concerned that Green may have been
cooperating with law enforcement.
The Government long ago produced discovery regarding this incident, including
information that the “Nob” account was controlled by an undercover DEA agent, that Curtis
Green, a/k/a “Flush” was arrested in January 2013 on narcotics charges and was cooperating
with law enforcement, and that the undercover officer had obtained access to the “Flush” account
following Green’s arrest. The chronology of events regarding Green’s arrest and access to the
“Flush” account is as follows:
January 17, 2013
Curtis Green, a/k/a “Flush” was arrested on narcotics charges. “Flush” was a
member of the Silk Road support staff and as such could take certain
administrative actions with respect to Silk Road user accounts, such as resetting a
user’s password (e.g., in the event a user claimed to have forgotten his password
and needed to create a new one). According to reports filed by Force, Green
began cooperating promptly after his arrest and provided Force with access to his
“Flush” account; thereafter, Force logged into the “Flush” account and changed
the login password in order to secure the account for undercover purposes.
January 19, 2013
According to reports filed by Force, two days later, Force provided Green with
the changed password for the “Flush” account, in order to return access to the
account to Green, so that Green could cooperate with the investigation by
engaging in online conversations with the defendant as a confidential informant.

2

“TorChat” is an instant-messaging service that enables users to chat over the Tor network. See
http://en.wikipedia.org/wiki/TorChat. TorChat users can “log” their chats in order to keep a
record of them for future reference. The TorChat service was and is unaffiliated with the Silk
Road website.
2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 57 of 121

January 26, 2013
One week later, according to a TorChat log recovered from the defendant’s
computer, on January 26, 2013, at approximately 3:39 a.m., another Silk Road
support staff member, with the username “Inigo,”3 informed the defendant that he
had detected a possible theft of approximately $350,000 worth of Bitcoins from
Silk Road user accounts, which he believed had been stolen the “Flush” account.
Specifically, it appeared to “Inigo” that “Flush” had reset the passwords of
individual Silk Road users in order to remove funds from the accounts of those
users.
According to reports filed by Force, and as corroborated by TorChat logs
recovered from the defendant’s computer, on that same day, starting at
approximately 10:42 a.m., the defendant engaged in an online TorChat with
“Nob” in which he told “Nob” that “Flush’s” true identity was Curtis Green, and
asked “Nob” if he could arrange to “get someone to force [Green] to return the s
funds.”
According to another TorChat log recovered from the defendant’s computer,
approximately six minutes later, at approximately 10:48 a.m., “Inigo” informed
the defendant that he had successfully stopped the theft of Bitcoins by resetting
“Flush’s” password, thereby locking “Flush” out of his account.
Subsequent TorChat logs reveal that the defendant later ordered “Nob” to arrange for Green’s
execution in exchange for $80,000 in United States currency, and that the defendant later
informed both “Inigo” and another associate, with the TorChat username “cimon,” that Green
had been successfully executed.
***
All of the above facts above were provided to the defendant in discovery, and have been
at defense’s proposal to investigate since that time.4 The only new information, made available
to the defendant on December 1, 2013, pursuant to a Court order authorizing disclosure under
seal pursuant to Rule 6(e)(3)(E), is that: (1) former SA Force is the subject of an ongoing grand
jury investigation being conducted by the United States Attorney’s Office for the Northern
District of California (“USAO-San Francisco”) for using his position as a DEA agent to convert
Bitcoins for personal use; and (2) USAO-San Francisco is investigating specifically whether
former SA Force could have been responsible for the theft of the $350,000 worth of Bitcoins
through the “Flush” account during late January 2013.
3

“Inigo” has been identified as Andrew Michael Jones, who was indicted for his role as a Silk
Road administrator in a separate case pending before Judge Griesa. Jones has pled guilty to the
charges.
4

The Government will provide copies of relevant reports authored by former SA Force to the
Court by separate letter, which were previously produced to the defendant in discovery on or
about March 21, 2014.
3

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 58 of 121

Last evening, undersigned counsel consulted with the lead AUSA in USAO-San
Francisco handling the Force investigation, regarding the status of the investigation into whether,
specifically, Force converted the $350,000 worth of Bitcoins in late January 2013 through the
“Flush” account. The AUSA clarified that the investigation is at a preliminary stage with respect
to that incident, and that the investigation has not uncovered any evidence that Force was
responsible for any such theft other than motive and opportunity. That is, the investigation into
that incident is based only upon evidence that Force improperly converted Bitcoins for personal
gain in other contexts, and that he had the access to the “Flush” account (possibly along with
Curtis Green) at the time that the $350,000 worth of Bitcoins went missing from Silk Road
accounts. USAO-San Francisco currently has no evidence to corroborate that Force in fact was
responsible for those Bitcoins going missing. In fact, some evidence indicates that Force may
have had no involvement and that the Bitcoins may not have been stolen at all. Again, the
investigation into this incident is at a preliminary stage.
B.

Discussion

For the reasons below, any evidence concerning the potential misconduct by former SA
Force being investigated by USAO-San Francisco should not be admitted at trial in this case.
Any such evidence would have no probative value under Rule 401, and in particular would lend
no support to any defense that evidence has been fabricated against the defendant. Moreover,
any probative value such evidence did have would be vastly outweighed by the risk of unfair
prejudice to the Government, as it would threaten to turn the trial into a time-consuming
corruption inquest into SA Force – who had no involvement in this Office’s investigation –with
the effect of confusing and biasing the jury and turning their attention away from the charges
against the defendant.
Evidence from the USAO-San Francisco investigation is not relevant to any fabrication
defense, first and foremost, because USAO-San Francisco has not uncovered any evidence that
Force fabricated any evidence against the defendant or the “Dread Pirate Roberts” online
persona. Again, the USAO-San Francisco investigation instead concerns only whether Force
improperly converted Bitcoins to his personal use. Any theory that Force was involved in
fabricating evidence against the defendant would be based on a purely speculative leap from one
type of misconduct (corrupt conversion of criminal proceeds for personal gain) to another
(fabrication of evidence against the defendant).
In particular, any argument that Force could have used the “Flush” account to take
control of the “Dread Pirate Roberts” account to plant incriminating statements by the defendant
is not only completely speculative, but is also contrary to the evidence in this case. To take
several of many examples:

Logs of TorChat communications seized from the defendant’s laptop computer—
which occurred over a completely separate communications system from Silk Road—
reflect that the defendant discussed the business of owning and operating Silk Road
with his co-conspirators on a daily basis throughout the period that Force had access
to the login credentials for the “Flush” account, and long afterwards, without any
4

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 59 of 121

reference to losing him access to his Silk Road “Dread Pirate Roberts” administrator
account.

Those same TorChat logs reflect that “Inigo” locked down the “Flush” account on
January 26, 2013, shortly after coming to believe that “Flush” was responsible for
stealing Bitcoins from the site; hence, the account would have been inaccessible to
Force after that time.

While “Flush” had the capability to reset the passwords of Silk Road user accounts,
there is no evidence that he had any ability to reset the password for the “Dread Pirate
Roberts” account, nor is there any reason to believe a site administrator would give
any such ability to his employees.

Even assuming the defendant could have ever been locked out of the “Dread Pirate
Roberts” account, he still would have controlled the server and computer code
underlying the website, and could simply have regained control of the account
through that root-level access. (By analogy, if a CEO’s email account is hacked, that
doesn’t mean he thereby loses control of his company. In particular, given that he has
ultimate, physical control over the email server on which the account his hosted, he
can take whatever steps are necessary to regain control over the account.)

“Dread Pirate Roberts” at times digitally signed or encrypted his communications
using what is known as a “private key” – including after January 2013. In order to
send those communications, Force would have had to have that private key; yet it was
stored on the defendant’s computer. There is no way Force could have obtained it
simply by gaining access the “Dread Pirate Roberts” account on Silk Road.

Accordingly, there is no basis to admit evidence of corruption on the part of Force to
support any theory that Force fabricated evidence against the defendant. Any conceivable wisp
of probative value such evidence would have would be clearly outweighed by the danger of
unfair prejudice to the Government. The Government does not intend to call former SA Force
as a witness or offer any evidence collected by him. Were the defense nonetheless to introduce
inflammatory allegations of corruption on the part of this non-witness former agent, and to
launch a fishing expedition into whether he somehow fabricated the evidence being used at trial,
the result will surely be to “confuse the issues, sidetrack the trial and impede the jury from
deciding the guilt or lack of guilt of the defendant[] based on the evidence in the case,” in
violation of Rule 403. United States v. Milan-Colon, 836 F. Supp. 1007, 1012-14 (S.D.N.Y.
1993) (precluding evidence under Rule 403 of an investigation into officers for stealing money
from defendant’s car at the time of the arrest, where: (1) the Government did not intend to
introduce at trial evidence seized by the officers implicated by the corruption investigation and
did not intend to call them as witnesses; (2) many of the corruption allegations remained
unsubstantiated; and (3) no evidence from the corruption investigation indicated that evidence
was fabricated against the defendants).

5

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 60 of 121

CONCLUSION
For the reasons set forth above, as well as the Government’s prior submissions, the
Government respectfully requests that the Court deny the defendants motion in limine to unseal
information regarding the ongoing USAO-San Francisco investigation into former SA Force, and
preclude the defense from using any information regarding the investigation as evidence at trial,
based on Rules 401 and 403 of the Federal Rules of Evidence.
Based on the sensitive nature of the contents of this letter, including references to an
ongoing grand jury investigation, the Government respectfully requests that it remain under seal.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
TIMOTHY T. HOWARD
SERRIN TURNER
Assistant United States Attorneys
Southern District of New York

cc:

Joshua Dratel, Esq.

6

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 61 of 121

JOSHUA L. DRATEL, P.C.
A PROFESSIONAL CORPORATION

29 BROADWAY
Suite 1412
NEW YORK, NEW YORK 10006
TELEPHONE (212) 732-0707
FACSIMILE (212) 571-3792
E-MAIL: JDratel@JoshuaDratel.com
STEVEN WRIGHT
Office Manager

JOSHUA L. DRATEL
LINDSAY A. LEWIS
WHITNEY G. SCHLIMBACH

December 18, 2014
BY ELECTRONIC MAIL
FILED UNDER SEAL

The Honorable Katherine B. Forrest
lJ nited S tatcs District Judge
Southern District of New York
lJ n ited Stat es Courthouse
500 Pearl
New York. New York 10007
Re:

United States v. Ross Ulbricht,
14 Cr. 68 (KBF)

Dear Judge Forrest:
This letter is submitted on behalf of defendant Ross Ulbricht and, in response to the
Court's December 17, 2014, endorsement of the government's December 17, 2014, letter, sets
forth particularized discovery requests regarding former Drug Enforcement Administration
Special Agent Carl Force. This letter is submitted under seal, with a copy to the government,
because it relates to a matter still under seal.
Accordingly, Mr. Ulbricht makes the following particularized discovery demands with
respect to former SA Force:
( J)

bank account records from any and all bank accounts maintained by former SA
Force or his spouse in the U.S. or overseas;

(2)

records from any and all Bitcoin accounts and/or wallets maintained by former SA
Force or any of his aliases;

(3)

records of any and all Bitcoin transactions conducted by former SA Force through
any Bitcoin accounts and/or wallets;

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 62 of 121

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
December 18, 2014
Page 2 of 4

(4)

records of any and all Bitcoin blockchain analyses conducted by the government
with respect to former SA Force's Bitcoin accounts, wallets, and/or transactions;

(5)

any spending, net worth, or other financial analysis conducted with respect to
former SA Force;

(6)

the names, addresses, and contact information for any person possessing
exculpatory information or material regarding former SA Force in connection with
this case;

(7)

any and all forensic computer or other electronic analysis or tests conducted with
respect to former SA Force in connection with the grand jury investigation of him;

(8)

any and all phone records relating to former SA Force and/or the government's
investigation of him;

(9)

any and all aliases used by former SA Force on the Internet, or otherwise;

(I 0)

the contents of any email accounts operated by former SA Force or any of his
aliases;

(11)

any and all chats involving former SA Force or any of his aliases on Silk Road, or
otherwise;

(12)

any forum posts authored by former SA Force or any of his aliases on Silk Road,
or otherwise;

(13)

any and all blog posts authored by former SA Force or any of his aliases;

(14)

the contents of any and all social media accounts operated by former SA Force or
any of his aliases (including but not limited Face book, Linkedin, and/or Twitter);

(15)

former SA Force's tax returns from 2010 through 2014;

( 16)

any and all stock or other financial holdings maintained by former SA Force or
any of his aliases;

( 17)

any and all reports prepared by the government regarding its investigation of
former SA Force;

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 63 of 121

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
December 18, 2014
Page 3 of4

( 18)

any and all reports or other memorialization and/or recording of the interview of
former SA Force by government investigators in connection with the current
grand jury investigation of him;

( 19)

any and all search and/or eavesdropping warrant applications and supporting
materials, and search and/or eavesdropping warrants executed during the
investigation of former SA Force, and the fruits of those searches;

(20)

any and all subpoena returns obtained during the government's investigation of
former SA Force;

(21)

any and all other documents and information obtained by any other process,
including but not limited to, pen registers, trap and trace orders, and/or orders
pursuant to 18 U.S.C. §2703(d);

(22)

any negative or adverse disciplinary records or reports regarding former SA Force;

(23)

any FBI rap sheet or other criminal history information regarding former SA
Force;

(24)

any surveillance footage taken during the government's investigation of former
SA Force;

(25)

any and all audio recordings of former SA Force made in connection with the
investigation of him or of this case;

(26)

any other exculpatory information or material regarding former SA Force in
connection with this case;

(27)

any and all reports, memoranda, recordings, and/or other memorialization of
interviews with Curtis Green (a/k/a "Flush") in connection with this case and/or
the investigation of former SA Force;

(28)

records of any other investigations of former SA Force by the FBI, or any other
agency.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 64 of 121

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
December 18, 2014
Page4of4

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

Accordingly, it is respectfully requested that the Court compel the government to produce
the above-demanded discovery.

Respectfully submitted,

Lindsay A. Lewis
LAL/
cc:

Serrin Turner
Timothy T. Howard
Assistant United States Attorneys

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l.\r ~~><" P'Jt" vJ ' J' ~o-, k-QJ l.- L.,_..,,;' ] S~f~ t'-"I~ LSS~ ~jCJ .. -r. Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 65 of 121 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 TO BE FILED UNDER SEAL December 18, 2014 By Electronic Mail Hon. Katherine B. Forrest United States District Judge Southern District of New York Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, New York 10007 Re: United States v. Ross William Ulbricht, Sl 14 Cr. 68 (KBF) Dear Judge Forrest: The Government writes to respond to the Court's order issued today requiring the Government to advise the Court concerning what subpoenas it believes the defendant could issue with respect to its recent discovery requests without harming any ongoing investigation. The Government will endeavor to respond to the Court's order substantively as soon as practicable. However, doing so will require consultation with the prosecutors handling the USAO-San Francisco investigation, as undersigned counsel are not fully familiar with what responsive records may exist from that investigation and cannot independently assess what impact disclosure of any such records may have on the investigation. The prosecutors handling the USAO-San Francisco investigation have advised that, due to preexisting commitments they have today, they are unable to review the Court's order or discuss it with undersigned counsel until this evening. Accordingly, the Government will plan to respond to the Court's order as soon as possible tomorrow. Respectfully, PREET BHARARA United States Attorney °" 'S By:~h~~- ~ '{2, c.. \>~'"',·~

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TIMOTHY T. HOWARD
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Southern District of New York

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 66 of 121

Cc:

Joshua Dratel, Esq. (by electronic mail)

2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 67 of 121

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

TO BE FILED UNDER SEAL
December 19, 2014
By Electronic Mail
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
The Government writes respectfully to respond to the Court’s order issued yesterday
requiring the Government to advise the Court concerning what subpoenas it believes the
defendant could issue with respect to its recent discovery requests (the “Defense Requests”)
without harming any ongoing investigation. As set forth below, for a number of reasons, the
Government believes it would be inappropriate for the Court to approve any subpoenas with
respect to the Defense Requests.
First, the attorneys handling the ongoing grand jury investigation of former Special Agent
(“SA”) Carl Force believe that disclosure of any of the requested records from the investigative
file threatens to harm the investigative process, by revealing to Force or others the full scope of
the Government’s investigation, which is currently unknown to Force. Second, in any event,
Rule 17 subpoenas are not a discovery tool and cannot be used to seek broad categories of
information such as those contained in the Defense Requests; rather, Rule 17 subpoenas must be
limited to information that is specific, relevant, and directly admissible. Third, while the defense
relies on Brady v. Maryland, 373 U.S. 83 (1963) as the authority for the Defense Requests,
Brady is not a discovery tool either; Brady simply obligates the Government to disclose any
exculpatory information in its possession, and here the Government has represented that it knows
of none. In the face of that representation, Brady does not authorize the defense to issue
discovery demands for broad swaths of information from government files so that the defense
can search for exculpatory information on its own. Fourth, allowing the defense to pursue the
Defense Requests would entail a substantial delay of trial, as both the gathering of responsive
documents and the opportunity for review by the defense would take several weeks at a
minimum. For all of these reasons, as well as the reasons explained in the Government’s prior
letters concerning the Force investigation, the Government respectfully requests that the Court
deny the Defense Requests in their entirety.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 68 of 121

A.

The Defense Requests Threaten to Harm the Ongoing Investigation of Former SA
Force

Undersigned counsel have consulted anew with the prosecutors from the U.S. Attorney’s
Office for the Northern District of California and the Public Integrity Section of the U.S.
Department of Justice (the “USAO-SF/PIN Prosecutors”) handling the investigation of former
SA Force and have shared with them the Court’s order with respect to the Defense Requests.
The USAO-SF/PIN Prosecutors continue to believe that there are no records that could be
provided from their investigative files without jeopardizing the ongoing grand jury investigation.
As noted in the Government’s December 12, 2014 letter to the Court, the USAO-SF/PIN
Prosecutors are concerned that, although former SA Force is aware that he is under investigation,
he is not aware of the full range of misconduct that is the subject of the investigation. The
prosecutors believe that disclosure of materials taken from the case file would threaten to reveal
the full scope of the investigation and might cause Mr. Force (as well as other potential subjects,
co-conspirators, or aiders and abettors) to flee, destroy evidence, conceal proceeds of misconduct
and criminal activity, or intimidate witnesses. The prosecutors further believe that disclosure of
any materials obtained through grand jury process would have to be authorized under Rule 6(e)
and that any such order would have to be issued in the Northern District of California, where the
grand jury is convened. See Fed. R. Crim. P. 6(e)(3)(F).
To be clear, the USAO-SF/PIN Prosecutors do not take the view that the need for grand
jury secrecy precludes the defendant in this case from pursuing his own independent
investigation of former SA Force, for example, by subpoenaing records from third parties or
attempting to talk to former SA Force, so long as the defendant does not disclose the fact of the
USAO-SF/PIN investigation in doing so. (Such independent investigation would be separately
improper for the reasons below, however.) The USAO-SF/PIN Prosecutors simply object to the
premature disclosure of any records they have obtained – and certainly to the disclosure of any
work product they have generated – in advance of any public charges being filed in the case,
which the prosecutors do not expect to happen until the spring of 2015 at the earliest.
B.

Rule 17 Does Not Provide Authority for the Defense Requests

Putting aside any impact on the USAO-SF/PIN investigation, to allow the defense to
issue subpoenas for the broad categories of information sought in the Defense Requests (whether
to the Government or a third party) would be an abuse of Rule 17. A party seeking to issue a
Rule 17 subpoena has the burden of showing that the documents sought are (1) relevant, (2)
admissible, and (3) specific. United States v. Nixon, 418 U.S. 683, 700 (1974). This is because
“Rule 17 subpoenas are properly used to obtain admissible evidence, not as a substitute for
discovery.” United States v. Barnes, 560 Fed. Appx. 36, 39 (2d Cir. 2014) (citing United States
v. Murray, 297 F.2d 812, 821 (2d Cir.1962) (observing that subpoenaed materials must
themselves be admissible)). Accordingly, pretrial subpoenas “not intended to produce
evidentiary materials but . . . merely [constituting] a fishing expedition to see what may turn up”
are not authorized by Rule 17, and should be quashed. Bowman Dairy Co. v. United States, 341
U.S. 214, 220 (1951).
The categories of information enumerated in the Defense Requests are manifestly not
limited to relevant, admissible, and specific evidence. Instead, they seek “any and all” materials
2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 69 of 121

relating to numerous broad categories of information. (See Def. Ltr. at 1-2 (seeking, inter alia,
“any and all bank accounts maintained by former SA Force or his spouse in the U.S. or
overseas,” “any and all Bitcoin accounts and/or wallets maintained by former SA Force or any of
his aliases,” “any and all phone records relating to former SA Force and/or the government’s
investigation of him,” “the contents of any email accounts operated by former SA Force,” and
“any and all subpoena returns obtained during the government’s investigation of former SA
Force”)). These requests sweep far beyond the bounds of a valid Rule 17 subpoena. United
States v. Mendinueta-Ibarro, __ F. Supp. 2d __, No. 12 Cr. 379 (VM), 2013 WL 3871392, at *2
(S.D.N.Y. July 18, 2013) (“Subpoenas seeking ‘any and all’ materials, without mention of
‘specific admissible evidence,’ justify the inference that the defense is engaging in the type of
‘fishing expedition’ prohibited by Nixon.”); see also United States v. Binday, 908 F. Supp. 2d
485, 492 (S.D.N.Y. 2012) (rejecting Rule 17 subpoena seeking “vast array of documents” that
defendant sought in pursuit of unspecified exculpatory evidence); United States v. Weisberg, No.
08 Cr. 347 (NGG), 2011 WL 1327689, at *6 (E.D.N.Y. Apr. 5, 2011) (rejecting Rule 17
subpoena seeking “all documents and material in any way” relating to certain escrow account);
United States v. Louis, No. 04–CR–203 (LTS), 2005 WL 180885, at *5 (S.D.N.Y. Jan. 27, 2005)
(rejecting Rule 17 subpoena requesting “any and all” documents relating to several categories of
subject matter).
C.

Brady Does Not Provide Authority for the Defense Requests

Nor does Brady supply a basis for the Defense Requests. The defense appears to take the
view that Brady entitles the defense to pursue broad discovery concerning the investigation of
former SA Force, so that defense counsel may sift through the requested documents themselves
for potentially exculpatory evidence. As the defense stated in its second letter concerning the
Defense Requests filed yesterday: “the defense does not know . . . which requests would bear the
most fruit with respect to exculpatory information and/or material[,] [n]or should it be
defendant’s burden: it is the government’s burden to provide such information and material, and
not require defendant to guess at which type of information will yield the exculpatory
information.” (Def. Ltr. dated Dec. 18, 2014, at 1).
This view rests on a mistaken conception of the Brady doctrine. “Brady . . . is not a
discovery tool.” United States v. Bin Laden, No. 98 Cr. 1023 (KTD), 2005 WL 287404, at *13
(S.D.N.Y. Feb. 7, 2005); see generally Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There
is no general constitutional right to discovery in a criminal case and Brady did not create one.”).
Rather, Brady imposes specific disclosure obligations on the Government “to ensure that a
miscarriage of justice does not occur.” United States v. Bagley, 473 U.S. 667, 675 (1985).
These obligations require the prosecution to disclose evidence, in its possession or reasonably
available to it, that “is both favorable to the accused and material either to guilt or to
punishment.” Id. at 674 (citation and internal quotations omitted). But it is the prosecution – not
the defense – who “decides which information must be disclosed.” Pennsylvania v. Ritchie, 480
U.S. 39, 59-60 (1987). “Unless defense counsel becomes aware that other exculpatory evidence
was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is
final. Defense counsel has no constitutional right to conduct his own search of the
[prosecution’s] files to argue relevance.” Id.

3

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The defendant’s requests fail to specify any particular exculpatory evidence withheld by
the Government. “Instead, [the defendant] makes a variety of boundless requests, which he
apparently believes might yield Brady fruit. This is not, however, what Brady prescribes.” Bin
Laden, 2005 WL 287404, at *13; see also United States v. Ruiz, 702 F. Supp. 1066, 1069
(S.D.N.Y. 1989) (“Defendant’s broad requests, although made under Brady, seem to be, in
effect, a demand to conduct a thorough review of the government’s investigative file. The law
plainly does not support such discovery.”); United States v. LeRoy, 687 F.2d 610, 619 (2d
Cir.1982) (holding that Brady is not to be utilized as a discovery device to “supply a defendant
with all evidence in the government’s possession which might conceivably assist the preparation
of his defense, but to assure that the defendant will not be denied access to exculpatory evidence
only known to the government”).
“Absent a particularized showing that something exists which must be disclosed before
trial, the [prosecution] need do no more than acknowledge and abide by its Brady . . .
obligations.” United States v. Rahman, No. 93 Cr. 181 (MBM), 1994 WL 533609, at *3
(S.D.N.Y. Sept. 30, 1994). Accordingly, “[c]ourts in this Circuit have repeatedly denied pretrial
requests for discovery orders pursuant to Brady where the government . . . has made a good-faith
representation to the court and defense counsel that it recognizes and has complied with its
disclosure obligations under Brady.” United States v. Perez, 940 F. Supp. 540, 543
(S.D.N.Y.1996); see also United States v. Boyle, No. 08 Cr. 534 (CM), 2009 WL 2032105, at
*10 (S.D.N.Y. Jul. 9, 2009) (“The Government states that it is aware of its obligations, and has
made and will continue to make all required disclosures as appropriate. This representation is
sufficient to satisfy the Government’s current Brady obligations.”); United States v. Numisgroup
Intern. Corp., 128 F. Supp. 2d 136, 150 (E.D.N.Y. 2001) (“In the absence of a particularized
showing by the defense that certain materials covered by Brady are being withheld, the Court
accepts the Government’s good faith assertion as sufficient.”).
Here, the Government fully recognizes its Brady obligations and, were any exculpatory
material known to the Government, the Government would readily produce it to the defense.
However, the Government knows of no exculpatory information relating to the defendant. In
particular, as the Government has repeatedly represented, the Government knows of no such
exculpatory information stemming from the USAO-SF/PIN investigation of former SA Carl
Force – whether evincing entrapment, fabrication of evidence, or otherwise. Further,
undersigned counsel have consulted repeatedly with the prosecutors handling the USAO-SF/PIN
investigation, who have likewise consistently represented that they know of no such exculpatory
evidence.
While the defendant has apparently written multiple ex parte letters in an attempt to
persuade the Court that the USAO-SF/PIN investigation does contain information that exculpates
the defendant and requires disclosure under Brady, again, that determination is not for the
defense to make. The obligation to identify and produce exculpatory information instead lies
with the Government. See United States v. Jones, No. 85 Cr. 1075 (CSH), 1986 WL 275, at *8
(S.D.N.Y. May 28, 1986) (rejecting request by defense for ex parte hearing as to “[the
defendant’s] theory of defense so that the Court, rather than the Government, can rule on
whether [the defendant] is entitled to certain materials under Brady,” stating: “‘It is the
prosecutor who decides what evidence, if any, should be voluntarily submitted to defense
counsel in accordance with Brady’”) (quoting United States v. Shakur, 560 F. Supp. 309, 311
4

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(S.D.N.Y. 1983) (citing United States v. Agurs, 427 U.S. 97, 107 (1976))); see also United States
v. Walker, 05 Cr. 440, 2008 WL 5002937, at *3 (E.D. Pa. 2008) (rejecting request for supposed
Brady information that defendants made ex parte due to “concern that their trial strategy will be
divulged,” holding: “Defendants are seeking this material under Brady and its progeny, which
have established disclosure procedures that neither permit a defendant to move ex parte to
procure impeachment or exculpatory evidence nor allow the defendant to review Government
files in the hopes of discovering such material.”).
Accordingly, the Government objects to the ex parte submissions filed by the defense in
this regard, and doubly objects to the Defense Requests insofar as they are premised upon those
submissions. If the defense has a “particularized showing” to make concerning supposedly
exculpatory material in the Government’s possession, then the defense must make that showing
in an adversarial posture, so that the Government may respond appropriately – either by
producing the material if it truly is exculpatory, or by justifying its refusal to do so if it is not.
Otherwise, the Government’s good faith representation that it is aware of and has complied with
its Brady obligations requires that the Defense Requests be denied.
D.

The Defense Requests Cannot Be Pursued Without Seriously Delaying the Trial

Undersigned counsel have consulted with the prosecutors handling the USAO-SF/PIN
investigation, who report that the records in their investigative files have not been compiled,
organized, or reviewed for discovery purposes and that it would require weeks to do so,
especially given the lengthy holiday period beginning next week during which the staff needed to
process such discovery would not be available. Indeed, even in simple criminal cases involving
small amounts of documentary evidence, the Government typically receives several weeks to
produce discovery. Much more time would be needed to produce anywhere near the volume of
documents sought in the Defense Requests. Further, any substantial amounts of records
produced to the defense could require additional weeks or even months for the defense to review.
Therefore, the Government does not believe it would be possible to allow the defense to
pursue the Defense Requests without delaying trial well past January or beyond.

5

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CONCLUSION
For all the reasons above, the Government respectfully requests that the Court deny the
Defense Requests in their entirety. As the Government has previously argued, the pending
investigation of SA Force is a collateral matter that does not relate to the defendant’s guilt or
innocence. The Government is fully aware of its Brady obligations and can assure the Court that
it knows of no Brady material stemming from the investigation. Respectfully, the Government
requests that the Court defer to that representation and not permit the defense to pursue a fishing
expedition into the files of an ongoing grand jury investigation being conducted by another U.S.
Attorney’s Office, which would lack any basis under Rule 17, Brady, or any other source of law.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
SERRIN TURNER
TIMOTHY T. HOWARD
Assistant United States Attorneys
Southern District of New York
Cc:

Joshua Dratel, Esq. (by electronic mail)

6

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
—————————————————————–)(
UNITED STATES OF AMERICA
14-cr-68 (KBF)

-v-

ROSS WILLIAM ULBRICHT,
Defendant.

SEALED
MEMORANDUM &
DECISIONl

—————————————————————–)(
KATHERINE B. FORREST, District Judge:

On November 21, 2014, the Government submitted a letter (the "November
21, 2014 Letter" or the "Letter") disclosing an ongoing federal grand jury
investigation of a former special agent of the Drug Enforcement Agency ("DEA"),
Carl Force ("SA Force" or "Force"), by the U.S. Attorney's Office for the Northern
District of California ("USAO-San Francisco"), in conjunction with the Public
Integrity Section of the Criminal Division of the Department of Justice. In sum and
substance, the grand jury investigation (the "Force Investigation") concerns an
inquiry into whether Force "went rogue" at some point during an independent
investigation of Silk Road by the U.S. Attorney's Office for the District of Maryland
("USAO-Baltimore")-stealing bitcoins, corruptly converting proceeds from Silk
Road transactions to his own use, and/or providing inside information regarding the
USAO-Baltimore investigation to an individual known as "Dread Pirate Roberts"
("DPR"). DPR is alleged to have controlled the Silk Road website. The Force
Investigation is active and its scope is non-public. Notably, the November 21 Letter
1

References to defendant's ex parte submissions have been redacted from this version of the Sealed
Memorandum & Decision.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 74 of 121

does not disclose known facts regarding Force's conduct, but rather discloses the
fact and scope of an investigation into potential misconduct.
The Government requested leave to disclose the November 21, 2014 Letter to
defense counsel pursuant to Rule 6(e)(3)(E) of the Federal Rules of Criminal
Procedure under a protective order prohibiting outside disclosure of the Letter and
its contents. At that time, the Government asserted-and it continues to assertthat the disclosure is not pursuant to any Brady obligation as the information
contained in the Letter is neither exculpatory nor material to any potential defense.
On December 1, 2014, the Court granted the Government's request to provide the
Letter to defendant pursuant to a protective order.
The parties filed motions in limine on December 9, 2014. As one of his
motions, defendant moved for an order unsealing the November 21, 2014 Letter. 2
The Government opposed.a On December 15, 2014, the Court held a sealed hearing
on the motion. The parties subsequently submitted additional correspondence on
this issue, including a second ex parte letter by the defense.
During the December 15, 2014 hearing, the Government argued that
significant information regarding what is actually known about Force's role in the
investigation of Silk Road by USAO-Baltimore had long ago been disclosed to the
defense in discovery. Documents subsequently produced by the Government

~Defendant's

motion in limine was accompanied by an ex parte letter-motion to unseal.

:3

On December 12, 2014, the Government submitted an ex parte letter providing responses to the
Court's inquiries regarding the ongoing grand jury investigation of SA Force. A redacted version of
this ex parte letter has been provided to the defendant.

2

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confirmed this. 4 The defense maintained that the issues under investigation by
USAO-San Francisco might have a significant bearing on this case, and that while
certain information was received as part of ordinary pre-trial disclosures,
information regarding Force's potentially rogue conduct was not. Based on the
discussion at the hearing and all of the submissions on this issue to date, it is clear
that precisely what Force did (or did not do) remains unknown.
On December 18, 2014, defendant submitted a lengthy list of extremely broad
discovery requests-seeking 28 separate categories of information relating to SA
Force from the Government. Defendant has not sought to obtain truly targeted
discovery from the Government or any third party. The Government has opposed
disclosure of any of the discovery requested on the basis that it would interfere with
the ongoing grand jury investigation.
Currently before this Court are the two related motions by defendant: to
unseal the November 21 Letter and to compel the Government to produce the 28
enumerated categories of discovery. Notably, none of defendant's submissions
explains why it is necessary to have the entirety of the November 21 Letter
unsealed and made part of the public record-versus requesting public disclosure of
particular isolated facts from that Letter. Nor has the defendant attempted to
demonstrate how and why his discovery requests are appropriate under the rules
and in light of the Government's assertions regarding the potential impact on the

The Government produced a binder of documents relating to Force's role in the investigation-all of
which had been previously disclosed to defendant. These documents reveal the type of technical
access Force had to the Silk Road website as part of his work for the DEA on the USAO-Baltimore
investigation.
4

3

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ongoing investigation. Nevertheless, the Court has carefully reviewed defendant's
arguments and sets forth its ruling below. Both of defendant's applications are
DENIED.
I.

BACKGROUND;j
A.

SA Force's Role in the USAO-Baltimore Investigation

In 2012 and 2013, SA Force participated in an independent investigation of
Silk Road conducted by USAO-Baltimore. USAO-Baltimore has a pending
indictment against Ulbricht charging him with, inter alia, soliciting the murder-forhire of Curtis Green ("Green"), a former Silk Road employee known by the
username "Flush." (See November 21, 2014 Letter at 1, 3.) As part of his duties in
connection the USAO-Baltimore investigation, SA Force infiltrated the Silk Road
website under the username "Nob." (Id. at 2, 4.) Force managed to strike up an
online relationship with DPR, who, the Government contends, is the creator and
lead administrator of the Silk Road website. At the heart of its case against
Ulbricht is the Government's contention that he is DPR.
Acting in his capacity as a special agent for the DEA, SA Force-via his Silk
Road identity, Nob-portrayed himself as someone who wished to distribute large
quantities of narcotics through Silk Road. (Id. at 4.) In short, Nob was a fictional
"big-time drug dealer." In January 2013, DPR solicited Nob to arrange for the
murder-for-hire of Green, the owner of the Flush account. (Id.) The Government
intends to introduce evidence that DPR believed that Green had stolen

5

The Court assumes familiarity with the underlying facts of this case.

4

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approximately $350,000 worth of bitcoins, the currency used to effect Silk Road
transactions.
According to the Government, the events leading up to the solicitation of the
murder-for-hire of Green are as follows.6 Green was arrested on narcotics charges
on January 17, 2013, and began cooperating with the authorities promptly after his
arrest. (See id. at 3; Government's Six-Page Letter of December 18, 2014 ("Gov't
December 18, 2014 Letter") at 2.) As part of his cooperation, Green provided Force
with access to the Flush account. (Gov't December 18, 2014 Letter at 2.) Force
changed the login password on the Flush account to secure it for undercover
purposes. (Id.)
On January 19, 2013, Force provided Green with the changed password to
the Flush account so that Green could engage in online conversations with DPR as a
confidential informant. (Id.) On January 26, 2013, a Silk Road support staff
member with the username "Inigo" 7 informed DPR that Flush might have reset the
passwords of Silk Road users in order to steal approximately $350,000 worth of
bitcoins. 8 (Id. at 3.) DPR messaged Flush, accusing him of stealing the money and
warning that he was "taking appropriate action." (November 21, 2014 Letter at 4.)
Later that day, DPR engaged in an online TorChat with Nob, in which he told Nob

6

Information regarding these events was provided to the defense in discovery.

7

Inigo has been identified as Andrew Michael Jones, who was indicted in a separate case pending
before Judge Griesa. Jones has pled guilty to the charges.
8

The November 21, 2014 Letter notes that "[a]s a Silk Road administrator, 'Flush' had
administrative privileges on the Silk Road website that gave him certain effective access to user
funds, such as the ability to reset user passwords and thereby take over user accounts." (November
21, 2014 Letter at 4 n.4.)

5

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 78 of 121

that Flush was Green and asked Nob if he could arrange to "get someone to force
[Green] to return the s [sic] funds." (Gov't December 18, 2014 Letter at 3.) A few
minutes later, Inigo informed DPR that he had successfully stopped the theft of
bitcoins by resetting the password on the Flush account. (Id.) The Government
alleges that defendant subsequently ordered Nob to arrange for Green's murder in
exchange for $80,000, and that defendant later informed Inigo and another
associate-with the TorChat username "cimon"-that Green had been successfully
executed. (Id.)
B.

The Force Investigation

USAO-San Francisco began investigating Force in the spring of 2014 after
learning of suspicious transactions that Force had with a certain Bitcoin exchange
company. (November 21, 2014 Letter at 2.) Further investigation revealed that
Force held accounts at several Bitcoin exchange companies, exchanged hundreds of
thousands of dollars' worth of bitcoins for U.S. currency during 2013 and 2014, and
transferred the U.S. currency into personal accounts. (Id.) USAO-San Francisco
also learned that Force used his position as a DEA agent to protect these funds.
(Id.) After learning this information, USAO-San Francisco has been investigating,
inter alia, how SA Force acquired such a large quantity of bitcoins and whether he
did so through exploiting his role in the USAO-Baltimore investigation. (Id.)
In particular, USAO-San Francisco is investigating whether SA Force may
have (1) leaked information about the USAO-Baltimore investigation to Ulbricht in
exchange for payment, (2) himself used access to Green's Flush account to steal the

6

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 79 of 121

$350,000 in bitcoins, and/or (3) received and converted to personal use payments
from DPR of approximately $85,000 in bitcoins. (See id. at 2-5; Memorandum of
Law in Opposition to the Defendant's Motions In Limine ("Gov't Opp.") at 15.)
The Government has represented that (1) Force did not play any role in the
investigation that culminated in Ulbricht's indictment in this District, (2) the
Government will not call Force as a witness at trial, and (3) the Government will
not use any evidence obtained in the USAO-Baltimore investigation in this case.
(Gov't Opp. at 16.) The Government also has represented that it will not seek to
introduce at trial any communications between Ulbricht and Force, including
communications regarding Ulbricht's alleged hiring of Nob to arrange Green's
murder-for-hire. (Id. at 16 n.2.) According to the Government, Nob will be
referenced at trial only in connection with TorChat logs in which Ulbricht and his
alleged co-conspirators mention Nob as the party that Ulbricht solicited to arrange
the murder-for-hire of Green. (See id.; Gov't December 18, 2014 Letter at 2.)
C.

Defendant's Asserted Relevance of the Force Investigation

Defendant has submitted two ex parte letters to the Court describing the
ways in which information relating to or derived from the Force Investigation might
be relevant, material, and exculpatory. According to defendant,

7

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 80 of 121

D.

Defendant's Discovery Requests

On December 18, 2014, defendant submitted a letter under seal that set forth
28 discovery demands for the Government. Together, the demands seek, inter aha,
any documents in the Government's possession relating to its investigation of SA
Force, including financial analyses, forensic computer analyses, interview notes,
reports, warrant applications, evidence obtained via searches and wiretaps, and
surveillance footage. The demands also seek any records in the Government's
possession regarding SA Force's finances (specifically, records pertaining to his
bank, bitcoin, and investment accounts), Internet and telephone communications,
and disciplinary records or reports. 9
II.

LEGAL STANDARDS
A.

Grand Jury Secrecy

The Supreme Court consistently has "recognized that the proper functioning
of our grand jury system depends upon the secrecy of grand jury proceedings."
Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 218 (1979) (citation
omitted). The fivefold rationale for this policy is

9 The breadth of the requests is evident on their face. For example, defendant seeks without any
other qualification or limitation: "bank account records from any and all bank accounts maintained
by former SA Force or his spouse in the U.S. or overseas"; "the contents of any email accounts
operated by former SA Force or any of his aliases"; "the contents of any and all social media accounts
operated by former SA Force or any of his aliases (including but not limited Face book, Linkedin,
and/or Twitter)"; and "any and all reports prepared by the government regarding its investigation of
former SA Force." (Defendant's December 18, 2014 Discovery Requests ("Disc. Requests") iii! 1, 10,

14, 17.)

8

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 81 of 121

(1) To prevent the escape of those whose indictment may
be contemplated; (2) to insure the utmost freedom to the
grand jury in its deliberations, and to prevent persons
subject to indictment or their friends from importuning
the grand jurors; (3) to prevent subornation of perjury or
tampering with the witnesses who may testify before the
grand jury and later appear at the trial of those indicted
by it; (4) to encourage free and untrammeled disclosures
by persons who have information with respect to the
commission of crimes; (5) to protect the innocent accused
who is exonerated from disclosure of the fact that he has
been under investigation, and from the expense of
standing trial where there was no probability of guilt.
In re Grand Jury Subpoena, 103 F.3d 234, 237 (2d Cir. 1996) (quoting United States
v. Moten, 582 F.2d 654, 662 (2d Cir. 1978)).
Rule 6(e) implements this policy of secrecy by providing that "[r]ecords,
orders, and subpoenas relating to grand-jury proceedings must be kept under seal to
the extent and as long as necessary to prevent the unauthorized disclosure of a
matter occurring before a grand jury." Fed. R. Crim. P. 6(e)(6). "The plain language
of the Rule shows that Congress intended for its confidentiality provisions to cover
matters beyond those actually occurring before the grand jury: Rule 6(e)(6) provides
that all records, orders, and subpoenas relating to grand jury proceedings be sealed,
not only actual grand jury materials." In re Grand Jury Subpoena, 103 F.3d at 237
(emphasis in original).
"[W]hen the district court finds that disclosure of the confidential information
might disclose matters occurring before the grand jury, the information should be
protected by Rule 6(e)," which means "it receives a presumption of secrecy and
closure." Id. at 239 (citation omitted). While this presumption is rebuttable, "[t]he

9

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 82 of 121

burden is on the party seeking disclosure to show a 'particularized need' that
outweighs the need for secrecy." Id. (quoting Moten, 582 F.2d at 662) (internal
quotation marks omitted). "A party makes a showing of particularized need by
proving 'that the material they seek is needed to avoid a possible injustice in
another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that their request is structured to cover only material so
needed."' Id. (quoting Douglas Oil, 441 U.S. at 222). "If a showing of particularized
need has been made, disclosure should occur unless the grand jury investigation
remains sufficiently active that disclosure of materials would prejudice a legitimate
interest of the government." Moten, 582 F.2d at 663 (citation omitted).
B.

Discovery in Criminal Cases
1.

Rule 16

"[I]n all federal criminal cases, it is Rule 16 that principally governs pre-trial
discovery." United States v. Smith, 985 F. Supp. 2d 506, 521 (S.D.N.Y. 2013).
Under Rule 16(a)(l)(E), a defendant is entitled to obtain from the Government
documents and objects that are "within the government's possession, custody, or

°

control" if they are "material to preparing the defense." 1 Fed. R. Crim. P.
16(a)(l)(E).

10

Rule 16(a)(l)(E) also permits the defendant to obtain government documents and objects "within
the government's possession, custody, or control" if "the government intends to use [them] in its casein-chief a trial," or if they were "obtained from or belong[] to the defendant." Fed. R. Crim. P.
16(a)(l)(E). Neither scenario applies here. Additionally, under Rule 16(a)(2), the pre-trial discovery
authorized by Rule 16 does not encompass "the discovery or inspection of reports, memoranda, or
other internal government documents made by an attorney for the government or other government
agent in connection with investigating or prosecuting the case." Fed. R. Crim. P. 16(a)(2). However,
Rule 16(a)(2) does not enable the Government to escape potential Rule 16 discovery obligations in
this case because the discovery defendant seeks does not concern the investigation or prosecution of

10

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 83 of 121

Evidence is "material" under Rule 16 "as long as there is a strong indication
that it will play an important role in uncovering admissible evidence, aiding witness
preparation, corroborating testimony, or assisting impeachment or rebuttal."
United States v. Stein, 488 F. Supp. 2d 350, 356-57 (S.D.N.Y. 2007) (quoting United
States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)). "Evidence that the government
does not intend to use in its case in chief is material if it could be used to counter
the government's case or to bolster a defense." Id. at 357 (quoting United States v.
Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993)). "There must be some indication that
the pretrial disclosure of the disputed evidence would … enable[] the defendant
significantly to alter the quantum of proof in his favor." Id. (alterations in original)
(quoting United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991)).
A speculative laundry-list discovery request is improper under Rule 16. See,
~'United

States v. Persico, 447 F. Supp. 2d 213, 217 (E.D.N.Y. 2006) (rejecting a

discovery request for "long list of items" because the request was based on "mere
conjecture"); United States v. Larranga Lopez, 05 Cr. 655 (SLT), 2006 WL 1307963,
at *7-8 (E.D.N.Y. May 11, 2006) (Rule 16(a)(l)(E) "does not entitle a criminal
defendant to a 'broad and blind fishing expedition among [items] possessed by the
Government on the chance that something impeaching might turn up."' (alteration
in original) (quoting Jencks v. United States, 353 U.S. 657, 667 (1957))).

the instant case, but rather a different investigation conducted by a different U.S. Attorney's Office
concerning a different defendant. See United States v. Armstrong, 517 U.S. 456, 463 (1996) (Rule
16(a)(2) prohibits a defendant from "examin[ing] Government work product in connection with his
case." (emphasis added)); United States v. Koskerides, 877 F.2d 1129, 1133-34 (2d Cir. 1989)
(purpose of Rule 16(a)(2) is to protect prosecutors' interest in protecting communications concerning
trial tactics).

11

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Rule 16(d)(l) provides that the Court may "[a]t any time" deny pre-trial
discovery "for good cause," which may be shown "by a written statement that the
court will inspect ex parte." Fed. R. Crim. P. 16(d)(l). "[C]ourts have repeatedly
recognized that materials … can be kept from the public if their dissemination
might 'adversely affect law enforcement interests."' Smith, 985 F. Supp. 2d at 531
(quoting United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)) (collecting
cases).
For example, in Smith, the Government sought a protective order for
materials concerning an ongoing investigation of possible misconduct in connection
with the case. Id. at 516. The Government submitted an ex parte letter that
"provided specific details of ongoing investigations that [we]re related to the
discovery materials" sought. Id. at 531. The Court ruled that the Government
established "good cause" for the protective order under Rule 16(d)(l), noting that
the possible public disclosure of an ongoing investigation "could alert the targets of
the investigation and could lead to efforts by them to frustrate the ongoing
investigations." Id. at 531-35.
2.

Rule17

A party seeking to issue a Rule 17 subpoena must demonstrate that the
materials sought are (1) relevant, (2) admissible, and (3) specific. United States v.
Nixon, 418 U.S. 683, 700 (1974); see also United States v. Cuti, 528 Fed. App'x 84,
86 (2d Cir. 2013) ("Under Nixon, a party moving for a pretrial Rule 17(c) subpoena,
must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity." (internal
quotation marks omitted)). "Rule 17 subpoenas are properly used to obtain
12

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admissible evidence, not as a substitute for discovery." United States v. Barnes,
560 Fed. App'x 36, 39 (2d Cir. 2014) (summary order) (citing United States v.
Murray, 297 F.2d 812, 821 (2d Cir. 1962)).
The party seeking the Rule 17(c) subpoena "must be able to 'reasonably
specify the information contained or believed to be contained in the documents
sought' rather than 'merely hop[e] that something useful will turn up."' United
States v. Louis, No. 04 Cr. 203, 2005 WL 180885, at *5 (S.D.N.Y. Jan. 27, 2005)
(alteration in original) (quoting United States v. Sawinski, No. 00 CR 499(RPP),
2000 WL 1702032, at *2 (S.D.N.Y. Nov. 14, 2000)). Courts in this District have
repeatedly noted that Rule 17 does not countenance fishing expeditions; subpoenas
cannot simply seek broad categories of documents without an articulation of how
they will enable defendants to obtain specific admissible evidence that is probative
of defendant's guilt.

k , United States v. Mendinueta-Ibarro, No. 12 Cr. 379 (VM),

2013 WL 3871392, at *2 (S.D.N.Y. July 18, 2013) ("Subpoenas seeking 'any and all'
materials, without mention of 'specific admissible evidence,' justify the inference
that the defense is engaging in the type of 'fishing expedition' prohibited by Nixon."
(citing Louis, 2005 WL 180885, at *5)); United States v. Binday, 908 F. Supp. 2d
485, 492-93 (S.D.N.Y. 2012) (rejecting Rule 17 subpoena seeking "vast array of
documents" because it was "a fishing expedition, not a targeted request for
evidentiary matters"); Louis, 2005 WL 180885, at *5 (rejecting Rule 17 subpoena
requesting "any and all" documents relating to "several categories of subject matter
(some of them quite large), rather than specific evidentiary items").

13

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Rule l 7(c)(2) provides that "[o]n motion made promptly, the court may quash
or modify the subpoena if compliance would be unreasonable or oppressive." Fed. R.
Crim. P. l 7(c)(2).
3.

Brady

Under Brady v. Maryland, 373 U.S. 83 (1963), the Government has a
constitutional duty to disclose favorable and material information to the defendant,
id. at 87. However, "Brady is not a rule of discovery-it is a remedial rule." United
State v. Meregildo, 920 F. Supp. 2d 434, 440 (S.D.N.Y. 2013) (citing United States v.
Coppa, 267 F.3d 132, 140 (2d Cir. 2001)). Brady imposes a disclosure obligation on
the Government; it does not give defendant a constitutional entitlement to obtain
discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no
general constitutional right to discovery in a criminal case, and Brady did not create
one …. ");see also United States v. Bonventre, No. 10CR228-LTS, 2014 WL
3673550, at *22 (S.D.N.Y. July 24, 2014) (court denied discovery request under
Brady because Brady is "not a discovery doctrine that could be used to compel the
Government to gather information for the defense"); Meregildo, 920 F. Supp. 2d at
439 ("An interpretation of Brady to create a broad, constitutionally required right of
discovery would entirely alter the character and balance of our present systems of
criminal justice." (quoting United States v. Bagley, 4 73 U.S. 667, 675 n.7 (1985))).
III.

DISCUSSION
A.

Motion to Unseal the November 21, 2014 Letter

It is undisputed that the November 21, 2014 Letter "relates to" an ongoing
grand jury investigation, Fed. R. Crim. P. 6(e), such that unsealing the Letter
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"might disclose matters occurring before the grand jury," In re Grand Jury
Subpoena, 103 F.3d at 239. The Government has repeatedly represented that
unsealing information regarding the Force Investigation would result in significant
prejudice to the integrity of the investigation. Specifically, the attorneys handling
the grand jury investigation believe that disclosure "threatens to harm the
investigative process, by revealing to Force or others the full scope of the
Government's investigation, which is currently unknown to Force." (See
Government's December 19, 2014 Letter at 1.) Such a revelation may cause Forceas well as potential co-conspirators, aiders and abettors, and others-to flee,
intimidate witnesses, destroy evidence, and conceal proceeds of criminal activity.11
(Id. at 2.)
The November 21, 2014 Letter thus is entitled to "a presumption of secrecy
and closure." Id. (citation omitted). To overcome this presumption, defendant must
make a showing of "particularized need" by proving that disclosure of the November
21, 2014 Letter is "needed to avoid a possible injustice," "that the need for disclosure
is greater than the need for continued secrecy," and that defendant's "request is
structured to cover only material so needed." Id. (quoting Douglas Oil, 441 U.S. at
222). Defendant has not carried this burden here.

11 The Government's letter of December 12, 2011 sets forth additional reasons why disclosure of the
November 21, 2014 Letter threatens to jeopardize the ongoing investigation of SA Force. First, there
is a serious risk that the significant level of media attention that the allegations against SA Force
would likely generate would "influence the information or testimony provided by witnesses, bias
grand jury members, or otherwise impact the integrity of the investigative process." In addition,
disclosure of the investigation at this time would risk publicly airing suspicions of wrongdoing that
may not materialize due to lack of evidence.

15

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1.

"Possible Injustice"
a.

Defendant's arguments

Defendant argues that "evidence of an investigation of former SA Force is
exculpatory, and thus Brady material."' (Memorandum of Law in Support of
Defendant Ross Ulbricht's Motions In Limine at 29.) Defendant describes the
supposed exculpatory value of the November 21, 2014 Letter in two ex parte letters
to the Court.

16

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17

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b.

Analysis

Defendant has not made a showing that either the fact of the Force
Investigation or the information learned during that investigation is "needed to
avoid a possible injustice." Contrary to defendant's arguments, the statements in
the November 21, 2014 Letter are not exculpatory. 1a

In discovery, the Government
produced information that (1) the Nob account was controlled by an undercover
DEA agent, (2) Green a/k/a Flush was arrested in January 2013 on narcotics
charges, and (3) the undercover agent had obtained access to the Flush account

I:J If anything, the November 21, 2014 Letter is inculpatory. The Letter indicates that SA Force may
have leaked information about USAO-Baltimore's investigation to DPR in exchange for payment. If
Ulbricht is DPR, this is evidence of Ulbricht's criminal state of mind and attempts to protect his
criminal enterprise by purchasing investigative information.

18

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after Green's arrest. (Gov't December 18, 2014 Letter at 2.)

To whatever extent this provides a basis for a defense, it has been known to the
defendant for some time. It is not news. The defense also learned in discovery that
the Flush account may have had administrative privileges. In fact, the Government
produced evidence that, on January 26, 2013, Inigo told DPR that Flush may have
stolen $350,000 in bitcoins by resetting the passwords of Silk Road users. (See id.
at 3.)

The only new information in the November 21, 2014 Letter is that USAO-San
Francisco is investigating whether Force may have stolen the $350,000 in bitcoins,
converted other bitcoins to personal use, and/or leaked investigative information to
DPR.
Notably, "USAO-San Francisco has not uncovered any evidence that Force
fabricated any evidence against the defendant or the 'Dread Pirate Roberts' online
persona." (Gov't December 18, 2014 Letter at 4.) To the contrary, there is
persuasive evidence that no such fabrication occurred. (See id. at 4-5.)

19

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Nor does the November 21, 2014 Letter help attack the Government's
murder-for-hire allegations. The Government alleges that Ulbricht solicited Green's
murder-for-hire in part because he believed that Green had stolen the $350,000 in
bitcoins. The fact that SA Force may have been responsible for the theft is
irrelevant unless defendant knew about it, and there is no evidence that he did. As
the Government correctly points out, "[r]egardless of whether SA Force, Green or
anyone else stole the Bitcoins, the identity of the culprit is wholly irrelevant to the
fact that the defendant believed that they were stolen by his employee, 'Flush"'
(Government's Opp. at 17) and that Flush was Green.

20

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21

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Importantly, nothing about the Force Investigation prevents defendant from
doing that which he could always do: presenting a theory supported by the technical
capabilities of Silk Road and the materials produced in discovery.

To be clear, to the
extent the Government now or at any point in the future develops any exculpatory
information, such as information suggesting that Force did fabricate evidence
against DPR, it would have a Brady obligation to disclose it to the defense. The
Government has affirmed that it fully understands its obligations under Brady, that
it currently knows of no exculpatory information, and that, if it acquires any
exculpatory material, it will readily produce it to the defense. (See, e.g.,
Government's December 19, 2014 Letter at 4.) The Court has no reason to believe
that the Government has not complied with all of its Brady disclosure obligations to
date or that it will not comply with those obligations in the future.
The Court finds that defendant has not met his burden of showing that
unsealing the November 21, 2014 Letter is "needed to avoid a possible injustice."
The Government's ongoing Brady obligations, as well as its representation that it
will not call SA Force as a witness at trial, will not use any evidence obtained in the
USAO-Baltimore investigation, and will not seek to introduce any communications
between Ulbricht and SA Force further mitigate the (virtually non-existent) risk of
"possible injustice" from maintaining the November 21, 2014 Letter under seal.

22

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2.

Need for Disclosure Versus Need for Continued Secrecy

Defendant also has not demonstrated that any "need for disclosure is greater
than the need for continued secrecy." The grand jury investigation of SA Force is
ongoing, and the Government has indicated that unsealing the November 21, 2014
Letter would result in significant prejudice to the integrity of the investigation. The
Court credits this statement. In particular, after consultation with USAO-San
Francisco, the Government has advised the Court that disclosure of the November
21, 2014 Letter threatens to compromise the investigative process by revealing to
SA Force the full scope of the investigation against him. Learning about the full
range of misconduct that is the subject of the USAO-San Francisco investigation
might jeopardize that investigation by causing Force, and others, to flee, destroy
evidence, conceal criminal proceeds, and/or intimidate witnesses. (Government's
December 19, 2014 Letter at 2.) Under these circumstances, the Court finds that
the minimal, if any, value of the November 21, 2014 Letter to Ulbricht's defense is
significantly outweighed by the need for continued secrecy.
3.

Structure of the Request

Finally, the Court finds that defendant's request to unseal the November 21,
2014 Letter is not "structured to cover only material" needed to avoid a possible
injustice. Rather than requesting to unseal specific facts from the Letter and
explaining why disclosure of those facts is necessary for a fair trial, defendant seeks
to unseal the entire Letter based on broad, vague allegations that it contains
exculpatory information.

23

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In sum, the Court finds that defendant has failed to make a showing of
"particularized need" sufficient to overcome the presumption of secrecy. Moreover,
even if defendant had made such a showing, the Court nonetheless would conclude
that the November 21, 2014 Letter should remain under seal while the grand jury
investigation of SA Force is ongoing. See Moten, 582 F.2d at 663 ("If a showing of
particularized need has been made, disclosure should occur unless the grand jury
investigation remains sufficiently active that disclosure of materials would
prejudice a legitimate interest of the government." (emphasis added) (citation
omitted)); In re Grand Jury Subpoena, 103 F.3d at 240 ("We have grave doubts as to
whether Appellants made a showing of particularized need to the district court.
Yet, even were we to decide that they had, we would not favor opening the hearing
to the press while the grand jury investigation is on-going.").
Over the course of the trial, defense counsel may find that they have a basis
to believe that specific information in the November 21, 2014 Letter is useful or
necessary for effective cross-examination. If such a situation arises, defense counsel
should so inform the Court and make a proffer as to the probative value of the
particular information sought to be disclosed.
B.

Defendant's Discovery Requests

Defendant is not entitled to the discovery he seeks either under the Federal
Rules of Criminal Procedure or under Brady.
1.

Rule 16 Discovery

The evidence defendant seeks does not meet the threshold of materiality
required by Rule 16(a)(l)(E), as there is at present no strong indication that the
24

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discovery defendant seeks will play an important role in uncovering admissible
evidence or will significantly aid in the preparation of defendant's case. As the
Government long ago produced discovery regarding SA Force's access to
administrative privileges on Silk Road, the only information that should be new to
defendant is that SA Force is being investigated for leaking information, and the
conversion and/or theft of bitcoins. Defendant has not articulated a coherent and
particular reason why the fact of SA Force's investigation, or the fruits of that
investigation, could themselves "counter the government's case" or "bolster a
defense." Stein, 488 F. Supp. 2d at 357 (quoting Stevens, 985 F.2d at 1180).
Indeed, this much is made clear by defendant's open-ended laundry list of
discovery demands, which represent precisely the kind of speculative fishing
expedition not permitted by Rule 16. For instance, defendant seeks discovery as to
"bank account records from any and all bank accounts maintained by former SA
Force or his spouse in the U.S. or overseas," (Disc. Requests

iJ

1), which could

encompass SA Force's spouse's bank statements from the time before she married
SA Force. Defendant also seeks "the contents of any email accounts operated by
former SA Force or any of his aliases," (Disc. Requests

ii 10), which could encompass

all of SA Force's non-work-related emails and emails relating to investigations other
than that of Silk Road. Indeed, eighteen of defendant's twenty-eight requests
request "any and all" materials in a particular category, and none is time-delimited.
Such broad and speculative requests are inappropriate under Rule 16. To the
extent that the defendant requests issuance of truly targeted requests, and can

25

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support those requests under the rules, the Court will review those and make an
individualized determination.
Finally, the Court notes that it is not unusual for the Government to
investigate many aspects of a criminal case and numerous people involved at the
same time, nor (sadly) is this the first occasion on which a court has confronted a
situation in which the Government's own investigative team has been accused of
misconduct in the course of an investigation. See, e.g., Brown v. United States, No.
1:10 CV 752, 2014 WL 4231063, at *1-2 (N.D. Ohio 2014) (DEA agent indicted by a
grand jury on charges of creating incriminating evidence, withholding exculpatory
evidence, and committing perjury). The fact that multiple investigations of criminal
conduct occur simultaneously does not mean that-even if related as to certain
facts-one must or even should await the outcome of the other. It is perfectly
appropriate for the Government, in the reasonable exercise of its prosecutorial
discretion, to pursue charges as and when it deems it appropriate and necessary.
Except in unusual circumstances, courts should not attempt to alter the
Government's chosen timing.
In any event, even assuming arguendo that the information defendant seeks
is material, good cause exists under Rule 16(d)(l) for denying defendant's request.
Here, as in Smith, disclosure of the materials sought by defendant could alert Force
to the full scope of the ongoing grand jury investigation and lead to efforts by him to
frustrate the investigation. Defendant's pre-trial discovery requests are accordingly
DENIED under Rule 16.

26

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2.

Rule 17 Subpoenas

In its December 19, 2014 letter, the Government opposed the issuance of any
Rule 17 subpoenas based on defendant's discovery requests. Rule 17 subpoenas
must be limited to information that is specific, relevant, and admissible. As
explained above, defendant's requests collectively seek "any and all" materials with
regard to several broad categories of information, and defendant has not articulated
any specific items of admissible evidence he seeks. Simply put, were defendant to
request the materials he seeks via Rule 17 subpoenas, he would be engaged in "a
fishing expedition, not a targeted request for evidentiary matters." Binday, 908 F.
Supp. 2d at 492. Further, and again as explained above, the issuance of Rule 17
subpoenas in this case could endanger the ongoing grand jury investigation of SA
Force. Accordingly, the issuance of subpoenas based on defendant's discovery
requests would be "unreasonable or oppressive" under Rule 17(c)(2), and therefore
inappropriate.
3.

Brady

Brady does not provide a vehicle for defendant to obtain the discovery he
seeks-it imposes an obligation on the Government to apprise defendant of any
exculpatory information obtained via the Force Investigation, but it does not entitle
defendant to obtain access to materials from that grand jury investigation, or for
that matter any other materials. The Government has an ongoing Brady obligation
in this case; this means that to the extent there is any information revealed or
developed during the Force Investigation that is material and potentially
exculpatory, the Government must disclose such information to the defense.
27

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The Court is aware that defendant argues that the Government cannot know
what may be exculpatory as it may not anticipate certain defenses. This is as true
here as in any case. To the extent that defendant wants to ensure that the
Government provides exculpatory information of which it is aware and that is
responsive to a particular theory, it must give the Government enough information
to understand that theory. Opening statements are only two weeks away, and the
mysteries of the defense theories will be largely revealed at that time; defendant's
tactical interest in preserving the mystery of a particular defense theory may now
be outweighed by his desire to determine whether particular information supportive
of that theory has come to light.
IV.

CONCLUSION
For the reasons set forth above, defendant's motion to unseal the November

21, 2014 Letter and discovery requests are DENIED. As explained above, the Court
will, over the course of the trial, entertain specific requests to use information from
the November 21, 2014 Letter on cross-examination. In addition, if, during the
course of the trial, the Government opens the door to specific information or facts
develop which render particularized disclosure of facts or documents relevant, the
Court will entertain a renewed application at that time.
Dated:

New York, New York
December 22, 2014

KATHERINE B. FORREST
United States District Judge

28

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JOSHUA L. DRATEL, P.C.
A PROFESSIO NAL CORPORATIO N

29 BROADWAY
Suite 1412
NEW YORK, NEW YORK 10006
–TELEPHONE (212) 732-0707
FACSIM ILE (212) 571-3792
E-M AIL: JDratel@ JoshuaDratel.com
JOSHUA L. DRATEL

LINDSAY A. LEW IS
W HITNEY G. SCHLIM BACH

STEVEN W RIGHT
Office Manager

December 30, 2014
BY ELECTRONIC MAIL
FILED UNDER SEAL
The Honorable Katherine B. Forrest
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross Ulbricht,
14 Cr. 68 (KBF)

Dear Judge Forrest:

This letter is submitted on behalf of defendant Ross Ulbricht, whom I represent in the
above-entitled case, and, in light of the Court’s December 22, 2014, Sealed Memorandum &
Decision (hereinafter “December 22, 2014 Opinion”), seeks an adjournment of trial until the
government completes its grand jury investigation of former Drug Enforcement Administration
Special Agent Carl Force, and the full nature of his alleged misconduct is known, and available
to Mr. Ulbricht’s defense.
The Court’s December 22, 2014 Opinion states that “it is clear that precisely what Force
did (or did not do) remains unknown.” Id., at 3. Yet that is only because it is the government
that is in sole possession of that information, and is in exclusive control of the investigation, and
because the government’s now ten-month long investigation of former SA Force is not complete.
Under such circumstances, Mr. Ulbricht is compelled to request an adjournment of the
trial until the government’s investigation is complete, and the defense can have access to and the
use of the information gathered as a result of the investigation (through either the government or
independent means, which at present are foreclosed to the defense).

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 102 of 121

LAW O FFICES O F

JOSHUA L. DRATEL, P.C.

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
December 30, 2014
Page 2 of 3

While the Court’s December 22, 2014 Opinion also states, at 22, that the government
“has affirmed that . . . if it acquires any exculpatory material, it will readily produce it to the
defense[,]”1 such production during trial or even at this late date would not be sufficient to
provide Mr. Ulbricht effective use thereof. Also, obviously, learning of such information after
trial would be entirely ineffectual.
Similarly, admonishing the government that if it “opens the door” at trial, the issue can be
revisited, id., at 28, fails to provide Mr. Ulbricht sufficient ability to utilize the information, as
investigation and pursuit of documents and other materials cannot be accomplished on such short
notice and in the middle of trial. Indeed, the breadth of the defense’s discovery requests – all of
which are consistent with what the grand jury surely has assembled from various sources – is the
result of the lack of the defense’s ability to do anything at present on its own to pursue the
investigation of former SA Force. Delaying that process until mid-trial only amplifies and
aggravates the problem therein.
Indeed, in its December 19, 2014, letter to the Court, the government protests that
“allowing the defense to pursue the Defense Requests [for discovery] would entail a substantial
delay of trial, as both gathering of responsive documents and the opportunity for review by the
defense would take several weeks at a minimum.” Yet that problem is one of the government’s
own making given its eleventh-hour disclosure of matters under investigation for the past ten
months, and is not a basis for precluding Mr. Ulbricht’s use of the information. Rather, it is an
indisputable justification for adjourning the trial.
Accommodating the government’s desire to maintain the secrecy of its extended
investigation of former SA Force and protection of Mr. Ulbricht’s constitutional rights are not
mutually exclusive interests, and the only solution that accomplishes both objectives is an
adjournment of trial. Otherwise, Mr. Ulbricht’s Fifth Amendment right to Due Process and a fair
trial, and his Fifth and Sixth Amendment rights to prepare and present a defense, will be violated,
and he will be denied his Sixth Amendment right to compulsory process, as he would otherwise
subpoena former SA Force and/or any other witnesses who could provide testimony at trial.
As noted in my prior December 16, 2014, sealed letter (at n. 2), examining former SA
Force without the use of the information disclosed in the government’s November 21, 2014,
letter – and thereby limited to what suits the government – would be meaningless to the defense.
1

The government’s ability even to acknowledge what is “exculpatory” is doubtful given
its refusal to acknowledge that what it has already disclosed with respect to former SA Force is
exculpatory – even though it is patent that its exculpatory character, rather than any other
discovery obligation, is what motivated disclosure “in an abundance of caution.”

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 103 of 121

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
December 30, 2014
Page 3 of 3

LAW O FFICES O F

JOSHUA L. DRATEL, P.C.

However, it would be the defense’s intention to subpoena former SA Force if the full range of his
conduct (and/or misconduct) were accessble for inquiry. Consequently, the defense has prepared
a subpoena for former SA Force, and will serve it conditionally, and only on the prosecutors in
this case, and not on former SA Force (in order to abide by the Court’s ruling denying the motion
to unseal the government’s November 21, 2014, letter).
In addition, Mr. Ulbricht would be denied his Sixth Amendment right to confrontation, as
the government’s attempt to introduce former SA Force’s undercover identity as “Nob” –
through references to him that will involve hearsay, and certainly implicate Nob’s
communications in significant fashion – in the case without providing Mr. Ulbricht opportunity
to cross-examine him (or call him or others as witnesses in any meaningful manner) simply
constitutes an attempted end-run around Mr. Ulbricht’s Sixth Amendment right to confrontation.
Moreover, Mr. Ulbricht’s Sixth Amendment right to effective assistance of counsel is also
compromised by the limitations placed on counsel’s advocacy, investigation, and preparation
with respect to former SA Force’s alleged misconduct.
The government’s effort to use its ongoing grand jury investigation as both a sword and
shield cannot be reconciled with Mr. Ulbricht’s right to a fair trial. Accordingly, for all the
reasons set forth above, as well as in Mr. Ulbricht’s previously filed submissions on this subject
(as well as the sealed portion of the court conference devoted to this issue), the only appropriate
solution is an adjournment of the trial until the government’s investigation of former SA Force is
complete, and the defense can effectively pursue and ultimately use at trial the information
disclosed. Having the trial proceed first puts the cart plainly, and unconstitutionally, before the
horse.
Respectfully submitted,

Joshua L. Dratel
JLD/
cc:

Serrin Turner
Timothy T. Howard
Assistant United States Attorneys

12/30/2014

ORDERED:
The Government shall submit any response
not later than 12/31/2014 at 6 P.M.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 104 of 121

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

TO BE FILED UNDER SEAL
December 30, 2014
By Electronic Mail
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
The Government writes respectfully to respond to the defendant’s letter submitted under
seal earlier today, requesting an adjournment of trial until the conclusion of the pending grand
jury investigation of former DEA Special Agent Carl Force. The request essentially seeks to
relitigate the issues this Court has already adjudicated in its December 22, 2014 sealed opinion,
and should be denied.
The defense’s request is premised on the notion that the Force investigation is likely to
uncover exculpatory evidence as to the defendant; yet, as the Court has already found, the
defense “has not made a showing that either the fact of the Force Investigation or the information
learned during that investigation is ‘needed to avoid a possible injustice.’” Slip op. at 18. Indeed,
the disclosures made by the Government about the investigation to date are “not exculpatory,”
but rather, “if anything,” are “inculpatory.” Id. at 18 & n.13. From the outset, the Government
has made clear that the investigation of former SA Force concerns only possible corruption on
former SA Force’s part rather than anything suggestive of the defendant’s innocence. In
particular, the investigation does not concern, and has not yielded any indication of, suspected
fabrication of evidence, entrapment, or any other conduct by former SA Force that would tend to
exculpate the defendant. Accordingly, postponing trial until the Force investigation is over
would do nothing except unnecessarily delay these proceedings by several months or longer, to
the detriment of the public’s right to a speedy trial. See United States v. Didier 542 F.2d 1182,
1188 (2d Cir. 1976) (“[T]he right to a speedy trial belongs not only to the defendant, but to
society as well.”) (internal quotation marks and citation omitted). Again, as stated in the Court’s
opinion: “The fact that multiple investigations of criminal conduct occur simultaneously does not
mean that – even if related as to certain facts – one must or even should await the outcome of the
other.” Slip op. at 26.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 105 of 121

Contrary to the defense’s assertion, proceeding with trial will not deny the defendant his
“Sixth Amendment right to confrontation.” (Ltr. at 3). The Government is not planning to call
former SA Force as a witness, and therefore there is no issue of the defendant being deprived of
the right to cross-examine him. Nor is the Government is even planning to use any
communications of former SA Force as evidence in the case; and even if it were, those
communications would not constitute testimonial hearsay implicating the defendant’s Sixth
Amendment confrontation rights. (Introducing such communications would be no different from
introducing a defendant’s recorded conversations with an undercover agent on a wiretap or
consensual recording, for example.)
As for the defendant’s Sixth Amendment right to subpoena witnesses, the Government
has never contended that the pending investigation of former SA Force would necessarily
prevent the defendant from subpoenaing him to testify if the testimony the defendant sought to
elicit was material to the defense. However, it appears that the defendant seeks to call former SA
Force as a witness merely to elicit the facts surrounding the pending corruption investigation of
him. As the Government has previously argued, eliciting such testimony would not merely
jeopardize the pending investigation of former SA Force, but it would also plainly be more
prejudicial than probative, as it would threaten to turn the trial into a sideshow about former SA
Force rather than an adjudication of the guilt or innocence of the defendant. Accordingly, the
Government would object to the defense calling former SA Force as a witness simply based on
Rules 401 and 403 – regardless of whether the subpoena was issued before or after the
conclusion of the grand jury investigation.
In this regard, the Government notes that the defense’s letter indicates that the defense
has prepared a subpoena for former SA Force to be served “conditionally” on “the prosecutors in
this case,” as opposed to former SA Force himself. (Ltr. at 3). To the extent the defense means
to say that it plans to attempt service of a subpoena on former SA Force by serving the subpoena
on the Government, such an attempt at service would be improper. Former SA Force is no
longer a federal employee whom the Government has the power to produce at trial; and
undersigned counsel are not authorized to accept service on his behalf. Any subpoena served by
the defense on former SA Force would thus have to be served personally. However, in order to
protect the pending grand jury investigation of former SA Force, the Government respectfully
requests that the defense be required to move the Court for permission to serve any trial
subpoena on former SA Force, and to give notice to the Government of any such motion, so that
the Government has the opportunity to oppose. There is no need for the defense to serve a
subpoena on former SA Force merely to trigger litigation over the relevance of his potential
testimony. See United States v. Boyle, No. 08 Cr. 523 (CM), 2009 WL 484436, at *3 (S.D.N.Y.
Feb. 24, 2009) (explaining that requiring a party to make a motion to issue a subpoena is a
permissible and advisable procedure where the subpoena is likely to result in a motion to quash).

2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 106 of 121

Accordingly, the Government respectfully requests that the Court deny the defense’s
request for an adjournment of trial. The Government further respectfully requests that the Court
require the defense to move for permission before serving any subpoena on former SA Force,
and to notify the Government of such motion, so that the Government may oppose.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
SERRIN TURNER
TIMOTHY T. HOWARD
Assistant United States Attorneys
Southern District of New York
Cc:

Joshua Dratel, Esq. (by electronic mail)

Ordered (under seal):
Defendant's motion to adjourn the trial is DENIED. The Court
shall provide reasons on the record on January 13, 2015. Any
subpoena on former SA Force must be made on motion with
notice to the Government. Such a motion would need to be
accompanied by a showing that the proposed witness would
provide testimony admissible at trial and meet all other
applicable rules.
SO ORDERED.
12/31/14

3

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 107 of 121

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

TO BE FILED UNDER SEAL
February 1, 2015
By Electronic Mail
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
The Government writes to express its objections to proposed Defense Exhibit E (attached
to this letter as Exhibit 1), which was provided to the Government on the evening of January 31,
2015. Defense Exhibit E consists of a redacted version of a chat over the Silk Road messaging
system between “Dread Pirate Roberts” and “DeathFromAbove,” in an apparent attempt to cast
Anand Athavale as an alternative perpetrator. As discussed in greater detail below, Defense
Exhibit E contains inadmissible hearsay, as it seeks to use statements made by
“DeathFromAbove” for the truth in support of an alternative perpetrator theory. Further, it seeks
to redact important context from the conversation, which indicates that “DeathFromAbove” was
seeking to extort the “Dread Pirate Roberts” based on information regarding the “Dread Pirate
Roberts’” attempts to solicit the murder for hire of Curtis Green, a/k/a “Flush.” This is a backdoor attempt to re-inject former DEA Special Agent Carl Force into the case. When the full
version of the conversation is viewed, in the context of evidence recovered from the defendant’s
laptop and information recently obtained from USAO-San Francisco that Force controlled the
“DeathFromAbove” account, it is apparent that there is no probative value to this evidence, and
that any potential probative value is substantially outweighed by the potential of unfair prejudice,
confusion of the issues, and misleading the jury. Accordingly, to the extent that the defendant
makes a spurious claim that this is not being offered for the truth, it should be excluded under
Rule 403.
The redactions proposed by the defendant eliminate critical context to the conversation.
Defense Exhibit E simply contains references to statements made by “DeathFromAbove” to the
“Dread Pirate Roberts,” in which “DeathFromAbove” asserts that he believes that “Dread Pirate

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 108 of 121

Roberts” is Mr. Athavale. The complete version of the conversation as it occurred over the Silk
Road messaging system (attached hereto as Exhibit 2) provides important context, indicating that
it started on or about April 1, 2013, when “DeathFromAbove” started making accusations that
the “Dread Pirate Roberts” was responsible for the disappearance and death of Curtis Green,
a/k/a “Flush.” The “Dread Pirate Roberts” only responds once during the conversation, in an
April 6, 2013 message in which he states:
I don’t know who you are or what your problem is, but let me tell
you one thing: I’ve been busting my ass every god damn day for
over two years to make this place what it is. I keep my head down,
I don’t get involved with the drama and I do the right thing at
every turn. Somehow that isn’t enough. Somehow psychotic
people still turn up at my doorstep. I’ve been scammed, I’ve been
stolen from, I’ve been hacked, I’ve had threats made against the
site, I’ve had threats made against the community, and now, thanks
to you, I’ve had threats made against my life. I know I am doing a
good thing running this site. Your threats and all of the other
psychos aren’t going to deter me. That’s all I say to you. I won’t
answer your questions, or get sucked in to whatever trip you are
on. I have much more important things to do. Stop messaging me
and go find something else to do.
“DeathFromAbove” continues to make threats of violence against “Dread Pirate Roberts,” until,
on April 16, 2013 (the portion that the defendant wants admitted) “DeathFromAbove” ultimately
provides Mr. Athavale’s personal identifiers, and demands a payment of $250,000 in United
States currency as “punitive damages” for Green’s death, and otherwise threatens to provide
information to law enforcement that Mr. Athavale is “Dread Pirate Roberts.”
The statements made by “DeathFromAbove” are inadmissible hearsay. They are plainly
offered for the truth, in another, utterly frivolous attempt by the defendant to put forward Mr.
Athavale as an alternative perpetrator. Any claim by the defendant that this evidence is not
offered for the truth is spurious and belied by the defendant’s prior improper attempts to seek to
have Special Agent Jared DerYeghiayan testify on cross-examination as to his undeveloped
suspicions of Mr. Athavale at an early stage of his investigation.
Even if not precluded by the hearsay rules, these statements further present a significant
danger of unfair prejudice under Rule 403 in supporting an inference of alternative perpetrator,
as the record lacks any legitimate evidence that can link Mr. Athavale to the crimes charged. As
the Second Circuit has noted, where a defendant seeks to offer evidence that an “alternative
perpetrator” committed the crime charged, a court must be especially careful to guard against the
danger of unfair prejudice under Rule 403, for “[t]he potential for speculation into theories of
third-party culpability to open the door to tangential testimony raises serious concerns.” Wade v.
Mantello, 333 F.3d 51, 61 (2d Cir. 2003). As the Second Circuit explained in Wade:
In the course of weighing probative value and adverse dangers,
courts must be sensitive to the special problems presented by
2

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 109 of 121

‘alternative perpetrator’ evidence. Although there is no doubt that
a defendant has a right to attempt to establish his innocence by
showing that someone else did the crime, a defendant still must
show that his proffered evidence on the alleged alternative
perpetrator is sufficient, on its own or in combination with other
evidence in the record, to show a nexus between the crime charged
and the asserted ‘alternative perpetrator.’ It is not sufficient for a
defendant merely to offer up unsupported speculation that another
person may have done the crime. Such speculative blaming
intensifies the grave risk of jury confusion, and it invites the jury to
render its findings based on emotion or prejudice.
Id. at 61-62 (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir.1998) (citation
omitted); see also DiBenedetto v. Hall, 272 F.3d 1, 8 (1st Cir. 2001) (“Evidence that tends to
prove a person other than the defendant committed a crime is relevant, but there must be
evidence that there is a connection between the other perpetrators and the crime, not mere
speculation on the part of the defendant.”); People of Territory of Guam v. Ignacio, 10 F.3d 608,
615 (9th Cir. 1993) (“Evidence of third-party culpability is not admissible if it simply affords a
possible ground of suspicion against such person; rather, it must be coupled with substantial
evidence tending to directly connect that person with the actual commission of the offense.”);
Andrews v. Stegall, 11 Fed. Appx. 394, 396 (6th Cir. 2001) (“Generally, evidence of third party
culpability is not admissible unless there is substantial evidence directly connecting that person
with the offense.”). 1
Any evidence that Mr. Athavale was an alternative perpetrator must be carefully
scrutinized. In order to introduce evidence that Mr. Athavale was the “alternative perpetrator” in
this case, the defense must offer evidence of a direct and substantial connection between Mr.
Athavale and Silk Road based on actual fact. The record simply does not support any such
direct and substantial connection. Rather, the only testimony received by the jury regarding Mr.
Athavale was testimony from Special Agent DerYeghiayan on cross examination acknowledging
that Mr. Athavale: (1) is a Canadian citizen who resided in Vancouver; (2) was at one time
connected to “half a page” of different IP addresses; (3) is a libertarian with a profile on the
mises.org website; and (4) frequently used terms and spelled words on the mises.org website in a
similar manner to the way that “Dread Pirate Roberts” was known to use them on Silk Road,
including “labour,” “real-time,” “lemme,” “rout,” “intellectual laziness,” “agorism,” and
“agorist.” See Tr. 672:23-678:25, 813:6-819:9. The association between Mr. Athavale and the
charged offenses is insubstantial on this record, such that that Defense Exhibit E “invite[s]
testimony that [is] both distracting and inflammatory” and “pose[s] a danger of turning attention
away from issues of [defendant’s] culpability.” Wade v. Mantello, 333 F.3d at 61.
The substantial risk of unfair prejudice in the admission of statements by
“DeathFromAbove,” is further compounded when the full conversation is viewed in the context
of other evidence. First, the defendant’s computer contained a file, received into evidence as
1

Additional legal support for these propositions is detailed on page 12 of the Government’s prior
letter in this matter dated February 1, 2015.
3

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 110 of 121

Government Exhibit 241, which reflects the fact that the defendant did not in fact feel threatened
by “DeathFromAbove.” Specifically, the unredacted version of Government Exhibit 241
(attached hereto as Exhibit 3), reflects the following entries, which correspond in timing and
content to the conversation with “DeathFromAbove”: 2
04/02/2013
got death threat from someone (DeathFromAbove) claiming to know I was
involved with Curtis' disappearance and death. messaged googleyed about
it. goog says he doesn't know. user is prolly friend of Curtis who he
confided his plan to.
***
4/10/2013
being blackmailed again. someone says they have my ID, but hasn't proven it.
***
4/13/2013
guy blackmailing saying he has my id is bogus
The full context of the conversation makes plain that the defendant received the threat from
“DeathFromAbove,” and then rejected it as without substance after “DeathFromAbove”
repeatedly incorrectly referred to him as “Anand.” 3
Further, it is important to note that it appears that “DeathFromAbove,” was controlled by
former Special Agent Force, based on information that was recently obtained from USAO-San
Francisco regarding their ongoing grand jury investigation into Force. Following the defendant’s
first attempt to seek to use Defense Exhibit E with Special Agent DerYeghiayan, the
Government consulted with the lead Assistant U.S. Attorney handling the Force investigation,
who provided evidence that Force controlled the “DeathFromAbove” account and sent the
2

The version of Government Exhibit 241 that was received in evidence is redacted to exclude
references to the Curtis Green “murder for hire.” The Court previously ruled that the
Government was permitted to present evidence regarding the murder-for-hire of Green. Although
the Government agreed with the ruling of the Court, it elected to forego presenting evidence
regarding that incident at trial, and has redacted references to the incident at the request of
defense counsel.
3

By omitting the full context of the conversation, the defendant also conveniently eliminates the
statement by “Dread Pirate Roberts” that he had “been busting my ass every god damn day for
over two years to make this place what it is,” which is obviously contrary to the defense theory
of the case presented during opening argument.
4

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 111 of 121

messages to the defendant. 4 Accordingly, when taken in context with the information obtained
from the defendant’s computer and the fact that “DeathFromAbove” was used by Force, it is
evident that the excerpt of the chat is being used to mislead and confuse the jury. Accordingly,
because the evidence has no probative value, and any possible probative value is vastly
outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury, it
should be precluded under Rule 403.
CONCLUSION
For the reasons set forth above, the Government respectfully objects to proposed Defense
Exhibit E as inadmissible hearsay. To the extent that the defense makes a spurious application to
have it admitted for any purpose other than the truth, Defense Exhibit E should be alternatively
excluded under Rule 403 based on the significant danger of unfair prejudice, confusion of the
issues, and misleading the jury that the evidence presents.

Based on the sensitive nature of the contents of this letter, including references to an
ongoing grand jury investigation, the Government respectfully requests that it remain under seal.
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
TIMOTHY T. HOWARD
SERRIN TURNER
Assistant United States Attorneys
Southern District of New York

Cc:

Joshua Dratel, Esq.

4

It should be noted that former Special Agent Force (who was aware of the Curtis Green
murder-for-hire attempt) had access to law enforcement reports filed by Special Agent
DerYeghiayan concerning his investigation into Mr. Athavale, which is likely the source of the
information provided by Force through the “DeathFromAbove” account, in an attempt to extort
the defendant.
5

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 112 of 121

4/6/13
18:00

DeathFromAbove Dread
Pirate
Roberts Dread
Pirate
It's
not
that
easy
Anand
Roberts

4/10/13
11:54 DeathFromAbove Dread
Pirate
Roberts so

.

Do
they
have
a
casino

4/16/13
5:56

DeathFromAbove Dread
Pirate
Roberts personal

history

there
Anand?

Name:
Anand
Athavale
DOB:

POB:
India
Citizenship:
India
Sex:
M

Brown
hair,
5'6"
tall,
Brown
eyes,
300
lbs.

Residence:

is
that
enough
to
get
your
attention?

So,
$250,000
in
U.S.
cash/bank
transfer
and
I
won't
give

you
identity
to
law
enforcement.

Consider
it
punitive

damages.

DeathFromAbove

Case
Defebdant's
Exhibit
E

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 113 of 121

Case 1:14-cr-00068-KBF /home/frosty/backup/log.txt
Document 227-1 Filed 03/31/15 Page 114 of 121
03/20/2013
someone posing as me managed to con 38 vendors out of 2 btc each with a fake message about a new silk road
posted about cartel formation and not mitigating vendor roundtable leaks.
worked on database error handling in CI
03/21/2013
main server was ddosed and taken offline by host
met with person in tor irc who gave me info on having custom hs guards
buying up servers to turn into hidden service guards
03/22/2013
deployed 2 guards on forum
adjusted check_deposit cron to look further back to catch txns that died with an error
03/23/2013
bought a couple of more servers from new hosts
organized local files
stripped out srsec db naming functions
introduced at least two bugs doing this
03/24/2013
been slowly raising the cost of hedging
orgainzed local files and notes
03/25/2013
server was ddosed, meaning someone knew the real IP. I assumed they obtained it by becoming a guard node. So, I
migrated to a new server and set up private guard nodes. There was significant downtime and someone has mentioned
that they discovered the IP via a leak from lighttpd.
03/26/2013
private guard nodes are working ok. still buying more servers so I can set up a more modular and redundant server
cluster. redid login page.
03/27/2013
set up servers
03/28/2013
being blackmailed with user info. talking with large distributor (hell's angels).
03/29/2013
commissioned hit on blackmailer with angels
04/01/2013
got word that blackmailer was excuted
created file upload script
started to fix problem with bond refunds over 3 months old
04/02/2013
got death threat from someone (DeathFromAbove) claiming to know I was involved with Curtis' disappearance and
death. messaged googleyed about it. goog says he doesn't know. user is prolly friend of Curtis who he confided his
plan to.
applied fix to bond refund problem
stopped rounding account balance display

Case 1:14-cr-00068-KBF /home/frosty/backup/log.txt
Document 227-1 Filed 03/31/15 Page 115 of 121
04/03/2013
spam scams have been gaining tracktion. limited namespace and locked current accounts.
lots of delayed withdrawals. transactions taking a long time to be accepted into blockchain. Wallet was funded with
single large transaction, so each subsequent transaction is requiring change to be verified. lesson: wallets must be
funded in small chunks.
got pidgin chat working with inigo and mg
04/04/2013
withdrawals all caught up
made a sign error when fixing the bond refund bug, so several vendors had very negative accounts.
switched to direct connect for bitcoin instead of over ssh portforward
received visual confirmation of blackmailers execution
04/05/2013
a distributor of googleyed is publishing buyer info
mapped out the ordering process on the wiki.
gave angels access to chat server
04/06/2013
made sure backup crons are working
gave angels go ahead to find tony76
cleaned up unused libraries on server
added to forbidden username list to cover I l scam
04/07/2013
moved storage wallet to local machine
refactored mm page
04/08/2013
sent payment to angels for hit on tony76 and his 3 associates
began setting up hecho as standby
very high load (300/16), took site offline and refactored main and category pages to be more efficient
04/09/2013
problem with load was that APC was set to only cache up to 32M of data. Changed to 5G and load is down to around
5/16.
ssbd considering joining my staff
transferring standby data to hecho standby server
04/10/2013
some vendors using the hedge in a falling market to profit off of me by buying from themselves. turned of access log
pruning so I can investigate later. market crashed today.
being blackmailed again. someone says they have my ID, but hasn't proven it.
04/11/2013
set up tor relays
asked scout to go through all images on site looking for quickbuy scam remnants
cimon told me of a possible ddos attack through tor and how to mitigate against it.
guy blackmailing saying he has my id is bogus
04/12/2013
removed last remnance of quickbuy scam
implemented new error controller

Case 1:14-cr-00068-KBF /home/frosty/backup/log.txt
Document 227-1 Filed 03/31/15 Page 116 of 121
rewrote userpage
04/13/2013
inigo is in the hospital, so I covered his shift today. Zeroed everything and made changes to the site in about 5 hours
04/14/2013
did support. inigo returned.
started rewritting orders->buyer_cancel, been getting error reports about it.
04/15/2013
day off
04/16/2013
rewrote buyer_cancel
04/17/2013
rewrote settings view
04/18/2013
modified PIN reset system
04/19/2013
added blockchain.info as xrate source and modified update_xrate to use both and check for discrepancies and log.
modified PIN reset system
04/20/2013
migrated to different host because current host would not connect to guards. Bandwidth limited and site very slow
after migration.
04/21 – 04/30/2013
market and forums under sever DoS attack. Gave 10k btc ransom but attack continued. Gave smed server access.
Switched to nginx on web/db server, added nginx reverse proxy running tor hs. reconfiged everything and eventually
was able to absorb attack.
05/01/2013
Symm starts working support today. Scout takes over forum support.
05/02/2013
Attack continues. No word from attacker. Site is open, but occasionally tor crashes and has to be restarted.
05/03/2013
helping smed fight off attacker. site is mostly down. I'm sick.
Leaked IP of webserver to public and had to redeploy/shred
promoted gramgreen to mod, now named libertas
05/04/2013
attacker agreed to stop if I give him the first $100k of revenue and $50k per week thereafter. He stopped, but there
appears to be another DoS attack still persisting.
05/05/2013
Attack is fully stopped. regrouping and prioritizing next actions.
05/06/2013
working with smed to put up more defenses against attack

Case 1:14-cr-00068-KBF /home/frosty/backup/log.txt
Document 227-1 Filed 03/31/15 Page 117 of 121
05/07/2013
paid $100k to attacker
05/08/2013
reconfigured nginx to not time out. almost all errors have disappeared.
05/10/2013
started buying servers for intro/guard nodes
05/11/2012
still buying servers
05/13/2013
helping catch up support
smed demo'ed multi address scheme for the forum
05/15/2013
more servers
05/22/2013
paid the attacker $50k
05/26/2013
tried moving forum to multi .onion config, but leaked ip twice. Had to change servers, forum was down for a couple
of days.
05/28/2013
finished rewritting silkroad.php controller
05/29/2013
rewrote orders page
paid attacker $50k weekly ransom
$2M was stolen from my mtgox account by DEA
added smed to payroll
rewrote cart page
05/30/2013
spoke to nob about getting a cutout in Dominican Republic. said he knew a general that could help
created misc_cli with send_btc function for sending to many addresses over time.
05/31/2013
$50k xferred to cimon
06/01/2013
someone claiming to be LE trying to infiltrate forum mods
06/02/2013
loaning $500k to r&w to start vending on SR.
06/03/2013
put cimon in charge of LE counter intel
06/04/2013

Case 1:14-cr-00068-KBF /home/frosty/backup/log.txt
Document 227-1 Filed 03/31/15 Page 118 of 121
rewrote reso center
06/05/2013 – 09/11/2013
Haven't been logging. Tried counter intel on DEA's "mr wonderful" but led nowhere. tormail was busted by dea and
all messages confiscated. "alpacino" from DEA has been leaking info to me. Helped me help a vendor avoid being
busted. did an interview with andy greenberg from forbes where i said i wasn't the original DPR, went over well with
community. tried to get a fake passport from nob, but gave fake pic and fucked the whole thing up. nob got spooked
and is barely communicating. said his informant isn't communicating with him either. r&w flaked out and disappeared
with my 1/2 mil. smed has been working hard to develop a monitoring system for the SR infrastructure, but hasn't
produced much in actual results. similarly cimon has been working on the mining and gambling projects, but no
results forthcoming. created Anonymous Bitcoin Exchange (ABE) and have been trying to recruit tellers. the vendor
"gold" is my best lead at the moment. nod is an H dealer on SR who says he has world class it skills and I am giving
him a chance to show his stuff with ABE. did a "ratings and review" overhaul. It hasn't gone over too well with the
community, but I am still working on it with them and I think it will get there eventually. tor has been clogged up by a
botnet causing accessibility issues.
09/12/2013
Got a tip from oldamsterdam that supertrips has been busted. contacted alpacino to confirm.
09/13/2013
french maid claims that mark karpeles has given my name to DHLS. I offered him $100k for the name.
09/11 – 09/18/2013
could not confirm ST bust. I paid french maid $100k for the name given to DHLS by karpeles. He hasn't replied for 4
days. Got covered in poison oak trying to get a piece of trash out of a tree in a park nearby and have been moping.
went on a first date with amelia from okc.
09/19/2013
red pinged me and asked for meeting tomorrow.
09/19 – 09/25/2013
red got in a jam and needed $500k to get out. ultimately he convinced me to give it to him, but I got his ID first and
had cimon send harry, his new soldier of fortune, to vancouver to get $800k in cash to cover it. red has been mainly
out of communication, but i haven't lost hope. Atlantis shut down. I was messaged by one of their team who said they
shut down because of an FBI doc leaked to them detailing vulnerabilities in Tor.
09/30/2013
nod deivered HS tracking service timeline. spoke with inigo for a while about the book club and swapping roles with
libertas. Had revelation about the need to eat well, get good sleep, and meditate so I can stay positive and productive.

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 119 of 121

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.
A PROFESSIONAL CORPORATION

29 BROADWAY
Suite 1412
NEW YORK, NEW YORK 10006
–TELEPHONE (212) 732-0707
FACSIMILE (212) 571-3792
E-MAIL: JDratel@JoshuaDratel.com
JOSHUA L. DRATEL

LINDSAY A. LEWIS
WHITNEY G. SCHLIMBACH

STEVEN WRIGHT
Office Manager

March 6, 2015
BY ELECTRONIC MAIL
FILED UNDER SEAL
The Honorable Katherine B. Forrest
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross Ulbricht,
14 Cr. 68 (KBF)

Dear Judge Forrest:

This letter is submitted on behalf of defendant Ross Ulbricht, whom I represent, as part of
his motion, pursuant to Rule 33, Fed.R.Crim.P., for a new trial. This letter is submitted under
seal because it relates to former Drug Enforcement Administration Special Agent Carl Force,
and matters previously maintained under seal.
For the reasons set forth below, in addition to those documents and materials listed in
Exhibit 1 to Mr. Ulbricht’s Rule 33 motion, the government has committed, with respect to
former SA Force, two separate nondisclosure violations under the standards of Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny:
(1)

former SA Force himself was obligated to disclose any misconduct he committed
during the course of or related to his investigation of the Silk Road website, and
SA Force’s knowledge in that regard is imputed to the prosecution as a whole;
and

(2)

it is clear from the government’s February 1, 2015, letter to the Court (a copy of

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 120 of 121

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
March 6, 2015
Page 2 of 3

which is attached hereto as Exhibit A) that the grand jury investigation of former
SA Force continued to generate exculpatory material and information that the
government did not disclose until its letter, and likely has not disclosed at all
(with respect to other such information and material).
Regarding former SA Force’s knowledge of his misconduct, “a prosecutor’s constructive
knowledge extends to individuals who are ‘an arm of the prosecutor’ or part of the ‘prosecution
team.’” United States v. Thomas, 981 F. Supp.2d 229, 239 (S.D.N.Y. 2013), citing United States
v. Gil, 297 F.3d 93, 106 (2d Cir.2002), and United States v. Morell, 524 F.2d 550, 555 (2d
Cir.1975); United States v. Bin Laden, 397 F.Supp.2d 465, 481 (S.D.N.Y.2005). See United
States v. Millan-Colon, 829 F.Supp. 620, 634-36 (S.D.N.Y. 1993) (in addition to declaring a
mistrial following numerous revelations concerning a corruption investigation into police
officers involved in the investigation of the offenses charged, the District Court vacated two
guilty pleas entered prior to trial, holding that evidence related to the corruption investigation
was material and exculpatory and should have been disclosed as Brady/Giglio material).
Regarding the continuing generation of undisclosed Brady material, the government’s
February 1, 2105, letter (Exhibit A), at 4, revealed that
it appears that “DeathFromAbove,” was controlled by former
Special Agent Force, based on information that was recently
obtained from USAO-San Francisco regarding their ongoing grand
jury investigation into Force. Following the defendant’s first
attempt to seek to use Defense Exhibit E with Special Agent
DerYeghiayan, the Government consulted with the lead Assistant
U.S. Attorney handling the Force investigation, who provided
evidence that Force controlled the “DeathFromAbove” account
and sent the messages to” Dread Pirate Roberts.
That passage demonstrates that the investigation of former SA Force continued to gather
exculpatory information – essentially, that Brady material was being collected during the trial
itself, and being generated by the investigation of former SA Force. In fact, the government, in
its earlier submissions, had never identified the DeathFromAbove username/account as being
controlled by former SA Force. Yet during trial it used the cross-examination of Homeland
Security Investigations Special Agent Jared Der-Yeghiayan to continue its investigation of
former SA Force, and to generate further Brady material, but without disclosing it to the defense
until the eve of the defense case itself.
As established by the case law and principles discussed in the Memo of Law in support
of Mr. Ulbricht’s Rule 33 motion, that constitutes a Brady violation. Accordingly, for the

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 121 of 121

LAW OFFICES OF

JOSHUA L. DRATEL, P.C.

Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
March 6, 2015
Page 3 of 3

reasons set forth above and elsewhere in Mr. Ulbricht’s motion, it is respectfully submitted that
his motion for a new trial should be granted.
Respectfully submitted,

Joshua L. Dratel
JLD/
cc:

Serrin Turner
Timothy T. Howard
Assistant United States Attorneys

Case 1:14-cr-00068-KBF Document 228 Filed 03/31/15 Page 1 of 2

U.S. Department of Justice
United States Attorney
Southern District of New York

The Silvio J. Mollo Building
One Saint Andrew’s Plaza
New York, New York 10007

March 31, 2015
By ECF
Hon. Katherine B. Forrest
United States District Judge
Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007
Re:

United States v. Ross William Ulbricht, S1 14 Cr. 68 (KBF)

Dear Judge Forrest:
Yesterday, at the request of the Government, the Court ordered the unsealing of certain
sealed filings relating to a corruption investigation by the U.S. Attorney’s Office for the Northern
District of California (the “NDCA Investigation”). For the same reasons underlying its original
request, the Government additionally requests that any courtroom transcripts that were
previously sealed due to the existence of the NDCA Investigation now be unsealed. The defense
consents to this request.
The transcripts at issue include:

the sealed portion of the pre-trial conference held on December 15, 2014; and
the sealed portions of the trial transcripts, to include:
o pages 118-19 (January 13, 2015);
o pages 594-614 (January 20, 2015);
o pages 1440-42 (January 28, 2015); and
o pages 2084-97 (February 3, 2015).
Respectfully,
PREET BHARARA
United States Attorney

By: ______________________________
SERRIN TURNER
TIMOTHY T. HOWARD
Assistant United States Attorneys
Southern District of New York

Case 1:14-cr-00068-KBF Document 228 Filed 03/31/15 Page 2 of 2

Cc:

Joshua Dratel, Esq. (by ECF)

2

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