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

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

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

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

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 16 of 121

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 18 of 121

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 19 of 121

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 20 of 121

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 21 of 121

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 23 of 121

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

Case 1:14-cr-00068-KBF Document 227-1 Filed 03/31/15 Page 29 of 121

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

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

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