In bad news this morning, the Court of Appeals for the 2nd Circuit upheld the conviction and sentencing of Ross Ulbricht for life without parole based on crimes associated with launching and operating the Silk Road website, a site where people could buy and sell items anonymously, including illegal drugs.

Past reporting on the arguments made in his appeal here, here, and here.

Ulbricht's lawyers had a multi-level set of concerns about the conviction and sentencing, as can be seen in the links above.

Here's how Judge Gerard E. Lynch dealt with them in 3-judge panel decision that came out from the 2nd Circuit today, with quotations and commentary:

Two aspects of the pre-arrest investigation into Ulbricht are particularly relevant to this appeal: (1) the pen/trap orders that the government obtained to monitor Internet Protocol ("IP") address traffic to and from various devices associated with Ulbricht; and (2) the corrupt behavior of two Baltimore agents who worked on the Silk Road investigation.

Regarding the pen/trap orders:

after Ulbricht became a primary suspect in the DPR investigation, the government obtained five "pen/trap" orders….The orders authorized law enforcement agents to collect IP address data for Internet traffic to and from Ulbricht's home wireless router and other devices that regularly connected to Ulbricht's home router

Ulbricht's lead lawyer Joshua Dratel argued on appeal that Ulbricht "has a constitutional privacy interest in IP address traffic to and from his home and that the government obtained the pen/trap orders without a warrant, which would have required probable cause."

Judge Lynch disagreed. Lynch wrote that:

the government specified that it did not seek to obtain the contents of any communications. Instead, it sought authorization to collect only "dialing, routing, addressing, and signaling information" that was akin to data captured by "traditional telephonic pen registers and trap and trace devices."

Lynch interprets Fourth Amendment protections as useless unless a citizen had a reasonable expectation of privacy in the information the government obtains. Lynch falls back on the old "third party" principle, that any information a citizen knowingly and willingly gave up to anyone—like a telecom provider—has no Fourth Amendment protections, as per 1979's Smith v. Maryland decision. (The Electronic Frontier Foundation (EFF) has written eloquently about why the Smith decision should not rule the computer age.)

Ulbricht tried to argue, along the lines in that EFF link, that the computer age requires rethinking that third party principle, since we are giving up so much information about our whereabouts and associates that we are not consciously considering.

Lynch however says "We remain bound, however, by that rule until and unless it is overruled by the Supreme Court." Furthermore, he doesn't consider the specifics of Ulbricht's case to involve novel issues:

the orders here fit comfortably within the language of a statute drafted with the earlier technology in mind. The substitution of electronic methods of communication for telephone calls does not alone create a reasonable expectation of privacy in the identities of devices with whom one communicates…. the government did not access the contents of any of Ulbricht's communications, [therefore] it did not need to obtain a warrant to collect IP address routing information in which Ulbricht did not have a legitimate privacy interest. We therefore reject Ulbricht's contention that the issuance of such orders violated his Fourth Amendment rights.

The Particularity of the Search Warrant for Ulbricht's Computer

Ulbricht's defense argued that the search of all the contents of the laptop the FBI stole from him when arresting him was unconstitutionally overbroad, amounting to a prohibited "general warrant" and not a specifically targeted legitimate search.

Lynch disagreed with that as well.

a search warrant does not necessarily lack particularity simply because it is broad. Since a search of a computer is "akin to [a search of] a residence," id., searches of computers may sometimes need to be as broad as searches of residences pursuant to warrants. Similarly, traditional searches for paper records, like searches for electronic records, have always entailed the exposure of records that are not the objects of the search to at least superficial examination in order to identify and seize those records that are. And in many cases, the volume of records properly subject to seizure because of their evidentiary value may be vast. None of these consequences necessarily turns a search warrant into a prohibited general warrant… the Laptop Warrant lists the charged crimes, describes the place to be searched, and designates the information to be seized in connection with the specified offenses. Each category of information sought is relevant to Silk Road, DPR's operation thereof, or identifying Ulbricht as DPR.

The same logic, Lynch believes, makes the government's search of Ulbricht's entire Facebook and Google accounts legal under the warrant.

The Corrupt Investigation

Ulbricht's legal team further argued that the fact the government withheld information regarding corruption investigations into two agents who were part of the investigation against him, Secret Service Agent Shaun Bridges and Drug Enforcement Administration Agent Carl Force, "deprived him of a fair trial….Ulbricht did not learn of Bridges's corrupt conduct until after trial when the criminal complaint against both agents was unsealed. Thus, in his motion for a new trial, he argued that the belated disclosure violated his due process rights under Brady v. Maryland."

Lynch also didn't believe that was enough to reconsider the conviction, because:

courts must also take care that wrongdoing by investigators that has no bearing on the matter before the court not be used as a diversion from fairly assessing the prosecution's case. Like any other potential evidence, information about police corruption must be evaluated by reference to the ordinary rules of criminal procedure and evidence….

Under those standards, Lynch considers the venality and corruption of the investigators and how knowledge of it was delayed or suppressed by the prosecution irrelevant, even though "Ulbricht argued that the agents' corruption was critical to his defense because it would reveal the agents' ability to falsify evidence against him and demonstrate their motive to do so."

Still, Lynch concluded the need for secrecy in the grand jury investigation of Carl Force, which the defense did learn about shortly before the trial, overwhelmed any benefits Ulbricht's defense could have reasonably expected from having it revealed. (Force, it is worth noting, was already aware he was under investigation.)

Lynch thinks "That Force was personally corrupt and used his undercover identity to steal money from Silk Road and DPR does not suggest either a motive or an ability on his part to frame Ulbricht as DPR" and that since Force's own investigation of Ulbricht was not part of the facts used in court, according to the state, that his corruption was irrelevant to the specifics of how Ulbricht was prosecuted and found guilty:

Ulbricht has not shown that, had the government produced every piece of requested information [regarding Force], he would have been able to alter the quantum of proof in his favor at trial. That is so because there is no indication, beyond Ulbricht's speculation, that Force manufactured any of the evidence on which the government relied at trial, let alone the most damning evidence discovered on the hard drive on Ulbricht's laptop and at his apartment…. Ulbricht does not identify any particular evidence introduced by the government at trial that is traceable to either Force or Bridges, or the admissibility of which depends on either agent's integrity….Absent further detail or evidence that Force and Bridges were able to infiltrate DPR's communications or transactions, Ulbricht's argument is simply too speculative to warrant a new trial.

Ulbricht's appeal argued that having a couple of his expert witnesses denied access to the stand harmed his fair trial; Lynch disagrees, concluding that the necessary disclosures about expert witnesses before they hit the stand "merely listed general and in some cases extremely broad topics on which the experts might opine….They did not summarize the experts' opinions about those topics, let alone describe the bases for the experts' opinions."

Thus, original trial judge, Katherine Forrest, was justified in keeping them from the stand, Lynch concluded. "Ulbricht did not comply with the procedural requirements associated with expert disclosures. The district court gave the issue due consideration and appropriately exercised its discretion in remedying the defense's Rule 16 violation."

Similarly, Lynch considered restrictions on Dratel's ability to cross examine two government witnesses legitimate and not affecting the fairness of Ulbricht's trial. Lynch also thought that the refusal to admit some testimony by a former Silk Road employee that the government originally intended to, but ultimately did not, put on the stand, testimony that could have created doubt that there was always one and only one "Dread Pirate Roberts" operating the site (a pseudonym the Silk Road's operator adopted in 2012), did not unduly harm Ulbricht's fair trial. The government was correct to brand the statements as inadmissible hearsay.

Finally, Ulbricht's defense wanted to argue that the cumulative effect of all the problems it found with the original trial resulted in a denial of a fair trial. No go, says Lynch: "The challenged trial rulings were well within the district court's discretion, and the various exclusions did not prevent the defense from offering evidence probative of innocence."

The Insanely Harsh Sentence Justifed by Thought Crime

Regarding the sentence of life without parole for crimes that amounted to operating a web site that other people used to sell drugs, which the appeal considered unjust and unreasonable, Lynch was again not persuaded.

In his sentencing, Lynch believed that it was legitimate to include questionable government assertions that drugs sold on the Silk Road killed six people. Lynch agreed with the original District Court decision that a standard of "reasonable degree of medical certainty" was "simply too high an evidentiary standard for purposes of including the deaths" in the sentencing, and mere "circumstantial" evidence of those unadjudicated crimes was sufficient and fair, Lynch says. (Whether bending over backward to give the government reason to lock Ulbricht up for life seems fair and reasonable is, alas, a legal responsibility of this judge, but a fair outside analyst might disagree.)

"No federal judge needs to be reminded of the tragic consequences of the traffic in dangerous substances on the lives of users and addicts, or of the risks of overdose and other ramifications of the most dangerous of illegal drugs," Lynch wrote, implying that Judge Forrest could just presume that Silk Road's existence had lots of horrible collateral damage for which Ulbricht should be rightly punished.

Lynch also believes it fair that the government merely assert and make no attempt to prove in court that Ulbricht allegedly thought he'd paid for murders of people robbing or threatening the identities of people on the Silk Road and let those allegations weigh into the sentencing.

One wonders why trials are even necessary if the government can just sentence you based on claims you committed crimes more serious and horrible than the ones it goes through standard trial procedures to prove. Lynch points out—and consider how crazy this is—since those unadjudicated murders, if proven, would not have increased the size of the sentence it was statutorily legal to give Ulbricht, it didn't matter that they weren't proven anyway. The drug sale facilitation stuff alone could have gotten him life without parole (and did, technically).

Lynch does not think it important for Forrest to have balanced out the obvious betterment of so many buyers and users lives by being able to buy community-rated drugs from dealers they never had to leave their house to meet, how much more safety that provided in both the use and purchase of the drugs. Ulbricht's defense tried to make those "harm reduction" concerns part of Forrest's thought processes in judging how much punishment Ulbricht deserved.

Here is the dreadful way Lynch's decision deals with that consideration:

It is very possible that, at some future point, we will come to regard these policies [the drug war] as tragic mistakes and adopt less punitive and more effective methods of reducing the incidence and costs of drug use. At this point in our history, however, the democratically-elected representatives of the people have opted for a policy of prohibition, backed by severe punishment…

And pay careful attention to this:

In this case, a reminder of the consequences of facilitating such transactions was perhaps more necessary, particularly because Ulbricht claimed that his site actually made the drug trade safer, and he appeared to contest the legitimacy of the laws he violated.

In other words, the fact that Ulbricht and his defense team dared to state out loud the obvious facts of the harm reduction benefits of Silk Road and dared suggest the laws against drug sales in this manner might not be legitimate justified the insanely harsh sentence of life without parole.

Horrendous and frightening, that daring to have beliefs contra to the state's justifies harsher sentencing. But Lynch stands by that tyrannical thought.

There is more to the appeals arguments and to the 139-page decision, but that is a summation of some of the major points at issue.

Dratel, Ulbricht's lawyer, refused to comment this morning on the decision or the case's future, if any. Ulbricht's mother Lyn Ulbricht, who has been a consistent public voice for her son's case, says in a blog post this morning at FreeRoss.org that:

The Sentencing Reform Act of 1984 says A judge should impose a sentence that is"sufficient, but not greater than necessary." How is a double life sentence plus 40 years by any stretch necessary? Even if everything Ross has been accused of is true, which we steadfastly do not believe, a life sentence is draconian and unnecessary. We will not stop fighting.

What specific form that further fight for Ulbricht's liberty will take is unknown at posting time. But Lyn Ulbricht said in an email this morning, "I expect that Ross will appeal the ruling. I don't see this decision as the end."