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General News    H3'ed 2/8/15

Silk Road Founder Faces Draconian Sentence

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Silk Road Founder Faces Draconian Sentence

Silk Road Seized
Silk Road Seized
(Image by (From Wikimedia) Federal Bureau of Investigation, Author: Federal Bureau of Investigation)
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San Francisco native Ross William Ulbricht, 30, was convicted on February 4, 2015 on charges stemming from the creation of Silk Road, the multimillion dollar, bitcoin denominated marketplace for drugs and other illegal items. The jury in a New York federal court deliberated for a little over three hours before rendering guilty findings on all seven charges against Ulbricht.

There is a wide range of opinions on the legality of Ulbricht's alleged acts and the Manhattan courtroom had numerous Ulbricht supporters. They expressed outrage and displeasure after the guilty verdict was announced. After the jury left the room, one of Ulbricht's supporters shouted, "Ross is a hero!" Another screamed, "It's not over Ross. We love you."

Included in those present to lend support was Ulbricht's family. His mother, Lyn, left the proceedings complaining that the defense had been barred from presenting evidence that would have helped prove its claims that her son was a harmless, college educated computer geek who was framed by others in a nebulous internet world where nothing is quite as it appears.

Ulbricht's father, Kirk, professed his son's innocence in an interview given before the jury's finding. "I feel like I know Ross as well as a father can know a son. We were very close. We've heard many chat logs and conversations between DPR (Dread Pirate Roberts, Ulbricht's alleged nom de guerre) and these other people. DPR didn't talk like Ross or write like Ross. It's just not Ross."

Sadly, his parent's disappointment may grow exponentially as their son enters the sentencing phase of the proceedings, scheduled for May 15. Ulbricht was found guilty on all seven counts which included drug trafficking, conspiracy to commit money laundering and computer hacking. This exposes him to a potential life sentence.

Ulbricht's actual sentence, however, will be calculated under the federal Sentencing Guidelines, a much maligned hodgepodge of points, levels, purportedly relevant factors and whimsy. The Sentencing Guidelines are often criticized as being too severe, and greater than necessary to satisfy the traditional sentencing goals of specific and general deterrence. Many observers have even gone so far to say that the guidelines accomplish little more than retribution.

The guidelines have been the subject of frequent litigation in U.S. federal courts. The United States Supreme Court has issued a series of opinions clarifying the proper application of the guidelines. In United States v. Booker, the Supreme Court stuck down the mandatory feature of the Sentencing Guidelines as unconstitutional, citing the Sixth Amendment right to a jury trial. The Court held that the sentencing range under the guidelines could not constitute a mandatory sentence and instead can only be a factor considered by courts in determining an appropriate sentence. Thus, after Booker, sentencing courts may only consider the applicable guideline range as one of the numerous factors that guide sentencing. Arguably, the most significant effect of Booker is that while sentencing hearings begin with a guideline calculation, other factors may be cited for significant departures outside the calculated sentencing range. Prior to Booker, sentences below the guideline range were almost automatically appealed by the government and typically reversed.

What will likely prove to be significant for Ulbricht is the use of relevant conduct in determining the correct guideline range. Relevant conduct can include acts for which a defendant has never been charged, acts that are beyond the statute of limitations and even acts for which the accused has been found not guilty. Sentencing defendants for acts in which they have been acquitted has been a hot topic in legal circles for years, but has been repeatedly affirmed by the U.S. Supreme Court. Basically, being found to be not guilty of a specific charge in a U.S. federal court is of very limited legal force. This may seem counterintuitive and inconsistent with a legal system repeatedly referred to as the "best in the world," but defendants in U.S. federal courts are routinely sentenced for what are essentially nothing more than allegations.

Relevant conduct aside, Ulbricht's sentence will be likely based upon the total amount of drugs sold through Silk Road. Sentencing Guidelines calculations are greatly influenced by the real and sometimes even imagined value of the crime. Sentencing in drug cases is mainly based upon the weight of the drugs involved. Even though Ulbricht arguably sold no drugs directly, the government will all but certainly successfully argue that as the Silk Road's creator, administrator and facilitator, his sentence should be based upon the weight and value of every illicit transaction.

Ulbricht's legal problems are not limited to his guilty finding in federal court. He is also facing a separate trial involving charges of murder for hire. Although these charges have yet to be proved, they will likely figure prominently in calculating Ulbricht's ultimate sentence. The U.S. Sentencing Commission attempts to justify this with the following language:

" the guidelines must define the scope of conduct beyond the elements of the offense of conviction from which these aggravating and mitigating factors will be gleaned. Similarly, because conspiratorial and accomplice liability are charged and proven so often in the federal system, the guidelines must define the scope of such liability in determining sentences. The point is that in some way, the federal sentencing guidelines must define the conduct to be considered at sentencing beyond the elements of the offense."

The government has played an interesting game with regard to the murder for hire charges. When Ulbricht was first arrested, the government trumpeted the murder for hire charges and they figured prominently in initial press accounts. The takedown of Silk Road was headline news around the world largely thanks to these salacious allegations. The Federal Bureau of Investigation's (FBI) claims that Ulbricht carried out six shocking murder for hire plots seemed to seal his fate in the eyes of the public. When Ulbricht was first presented as the man behind Silk Road, the word "murder" was printed prominently right next to his face.

The murder allegations were even used by the government to deny Ulbricht bail. Yet murder charges were never even filed in the case. Instead, the indictment omitted these charges without explanation and buried them within a lesser drug trafficking charge. This move, likely calculated, allows the government to sentence Ulbricht as a conspirator in a murder plot without even having to file such charges and without affording him a meaningful opportunity for rebuttal.

In order to factor the murder charges into the sentence, all the sentencing judge needs to do is find by a preponderance of the evidence that Ulbricht committed these acts. Reasonable doubt, the level of proof required for criminal trials in the U.S., has no bearing. It merely has to be, in the court's opinion, more likely than not that he committed the acts.

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Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial (more...)

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