Judge shuts door on attempt to get a new trial for Ross Ulbricht

The federal judge overseeing the trial of Ross Ulbricht, the man convicted of creating the underground Silk Road drug website, has denied the Ulbricht legal team’s attempt to extend the normal three-year window for “post-conviction relief.” In essence, the move stifles Ulbricht’s new attorney’s extraordinary effort to re-open the case with new exculpatory evidence, on the off-chance that it exists.

On February 5 in a brief, handwritten note, US District Judge Katherine Forrest blocked efforts by Ulbricht’s new lawyer, Paul Grant, to go beyond the standard 36-month period allowed in what is called a “Rule 33 motion.” (Grant took over the case from Ulbricht’s previous counsel, Joshua Dratel, in June 2017, shortly after an appellate court upheld Ulbricht’s conviction and double life sentence.)

“The motion to extend time for a Rule 33 motion is DENIED,” Judge Forrest wrote. “A Rule 33 motion is not an opportunity to relitigate that which has been litigated, or to engage in a fishing expedition for new evidence. The Court appreciates that Mr. Grant was not involved in the trial, but the transcript reveals that the very evidence to which he now points (that the FBI was monitoring the defendant’s online movements) was explicitly known at the trial.”

Normally, from the time a conviction is recorded (in this case, February 4, 2015), there is a three-year clock during which new evidence can be presented. In a February 5, 2018 filing, Grant had asked the court to extend the time while he waited for prosecutors to send him files pertaining to Ulbricht’s case that the attorney felt should have been sent years ago. Judge Forrest denied Grant’s request the very same day, although her ruling can be appealed—Grant has vowed to do so.

Grant was attempting to get the case re-opened at the district court level. At the same time, different lawyers working on behalf of Ulbricht are trying to convince the Supreme Court to take up his case.

Attorneys representing Ulbricht filed their cert petition to the nation’s highest court in late December 2017. In early March 2018, federal prosecutors are due to submit their formal response to Ulbricht’s petition to the Supreme Court. Once the justices have paperwork from both sides, they will decide whether to hear the case.

“An unjust system”

On his own website, Grant describes himself as a “libertarian criminal defense, First Amendment lawyer.” He previously served as the national chair of the Libertarian Party for two years during the 1980s.

Grant also says while he isn’t “practicing law full time now, because he doesn’t want to earn his living working in and giving credibility to an unjust system,” he is still willing to take on “the defense of a few clients, in serious and challenging cases, despite the difficult odds.”

According to Grant, Ulbricht is specifically entitled to see four pen register trap and trace (PRTT) applications that prosecutors filed in 2013. The applications targeted Ulbricht during the course of the investigation. Grant believes those files may contain information as to what Internet traffic was traversing through Ulbricht’s router at the time he was under investigation.

The government, Grant claims, promised to give the records to Ulbricht years ago but never actually did so. As Grant wrote in his letter to Judge Forrest:

The government has never produced the data collected pursuant to four of the five pen-trap orders, yet argued before trial against suppression of evidence obtained from the pen registers on the basis of the government’s representation as to what each of the pen registers did and did not collect. If the government lacked the data, the arguments based on the knowledge of a government attorney were made in bad faith. If the government had the data, but did not produce it upon request, and misrepresented what it contained in argument to the court, that would be a serious problem. If the government had the data but did not produce it, that alone would constitute a serious discovery violation.

Still, Grant is not sure what, if any, information that could be helpful to Ulbricht may be contained in the gigabytes of data. His point is that Ulbricht should have received it years ago.

“The data’s in the mail but I don’t have it yet,” he told Ars, noting that the United States Attorneys’ Office and the FBI are still attempting to locate the files in their archives. Grant argued that he should have extra time to examine what is contained in those files, particularly when prosecutors have not objected.

“It’s not fishing, we’re trying to save a young man’s life,” Grant added.

A spokeswoman for the New York-based federal prosecutor’s office declined Ars’ request for comment.

In addition to the PRTT trove, Grant claimed that he still has been unable to get the entire formal case file from Ulbricht’s previous attorney, Dratel.

“I learned that they have a file cabinet of materials that they’ve never turned over to me,” Grant continued. “So I don’t know what he’s looked at.”

Dratel also did not respond to Ars’ request for comment.

Finally, Grant also argued that the 2017 book on the entire saga—American Kingpin, which was based on interviews of federal agents involved in the Ulbricht case—describes Wi-Fi monitoring and other types of physical surveillance that allowed the agents to pinpoint Ulbricht’s precise physical location prior to his arrest.

On Page 331 of the book, author Nick Bilton wrote that then FBI agent Chris Tarbell performed this specific surveillance and that PRTT application, which eventually authorized the surveillance, formed the basis for the Tarbell affidavit to search Ulbricht’s laptop.

“There’s a good reason to believe that the affidavit contains false statements,” Grant said.

Without seeing those documents, however, Grant can’t know for sure.

An uphill battle

Ars contacted numerous legal experts to see what they made of Judge Forrest’s ruling: they all agreed that Rule 33 required a very high bar to clear, and at least for now, Grant seemingly had not cleared it.

Stephen Saltzburg, a law professor at George Washington University, said that Dratel was a veteran criminal defense lawyer and was “unlikely” to have missed anything “major.”

“What you have is: this new lawyer coming in and saying, ‘It’s possible that the government didn’t produce something that possibly could be relevant to a defense,’” he told Ars. “You tell me what the newly discovered evidence is—and this isn’t that.”

Saltzburg, who previously served as deputy assistant attorney general in the Criminal Division of the Department of Justice, added that there was “nothing surprising” about the judge’s ruling.

Meanwhile, Daniel Richman, a former federal prosecutor and advisor to ex-FBI director James Comey, said that he agreed with the judge.

“[Rule 33] motions always face an uphill battle, and this motion seems to show less evidentiary promise than many,” he emailed Ars.

Out of the handful of legal experts Ars contacted for context, only one expressed any hesitation at the judge’s Rule 33 decision. Jay Leiderman, a California-based defense attorney who has represented numerous computer crime suspects, said that while he understood the reasoning, he didn’t necessarily agree with the decision.

“The judge foreclosed the idea that there may have been something in the files that wasn’t brought up at trial,” he emailed Ars. “To me, it isn’t a fishing expedition, it’s thorough lawyering. But I see the judge’s point.”

https://arstechnica.com/?p=1261975