Ulbricht’s Lawyer Files for Retrial

Ross Ulbricht has not even been sentenced yet for his conviction as leader of Silk Road, the Amazon for drugs, and he’s already requesting a new trial.

Joshua Dratel, Ulbricht’s attorney, filed a motion that includes evidence that suggests the federal government gained access to the server that Silk Road was on without a warrant. Further, the defense argues that the government may have tried to hack into the site.

On February 4, after only 3 ½ hours of deliberation, a New York federal jury found Ulbricht guilty on all seven charges, including drug trafficking, computer hacking, money laundering, running a criminal enterprise and fraud with identification documents. Should the seven felonies stand, Ulbricht would be sentenced to a minimum of 20 years in prison.

According to a memo filed Friday evening, Dratel is looking for a new trial for Ulbricht. The defense is also looking to re-visit a motion that would have suppressed all evidence gained from the Silk Road servers. The defense argues that the evidence was obtained without a warrant, violating Ulbricht’s Fourth Amendment rights.

Further, Dratel is arguing that Ulbricht’s Fifth Amendment rights have been violated.

“Mr. Ulbricht should be granted a new trial because the government failed to provide exculpatory material and information in a timely manner, thereby denying him his Fifth Amendment right to due process and a fair trial,” Dratel wrote in his memo.

Dratel argued that 5,000 pages of material related to the testimony of Department of Homeland Security agent Jared Der-Yeghiayan were not provided in a timely manner. During cross-examination, Der-Yeghiayan revealed that his group had been looking at Mark Karpeles, the owner of Mt. Gox, as the true “Dread Pirate Roberts,” the pseudonym used by the site’s founder.

Dratel has argued that this evidence was provided only two weeks before the trial started, thus making it nearly impossible for the defense to pull together a proper argument in time for the start date.

With respect to the Fourth Amendment violations, Dratel wrote: “Mr. Ulbricht’s motion to suppress evidence should be reopened based on information produced by the government in connection with trial, and should be granted in its entirety.”

The memo went on to say that: “In the context of Mr. Ulbricht’s suppression motion, this surveillance raises some novel Fourth Amendment issues, and also provides further evidence that the government discovered the Internet Protocol (hereinafter “IP”) address for the Iceland server ending in “.49” through warrantless TOR network surveillance.”

Dratel argued before that the government had hacked into the server. But the government argued that if the FBI had hacked the Silk Road server it would be legal because the server was based in Iceland and Ulbricht had not made clear that he was the owner. In other words, there can’t be a violation of constitutional rights if no one comes forward to say that their rights were violated.

Unfortunately for Ulbricht, there were five requests for a mistrial put forth by Dratel during the trial and none were allowed by the judge. It is highly unlikely that these requests will be granted, especially since Ulbricht already has been convicted and he’s requesting the retrial from the same judge who refused a mistrial repeatedly.

And Dratel may not be truly looking for a retrial. Instead, the motion might all be part of a larger plan to file an appeal.

Ulbricht and his defense team have until April 4 to file their formal appeal.