The oral hearings for the appeal of Ross Ulbricht, originator of the Silk Road, were held in New York City this past Thursday, October 6, 2016. He is sentenced to life in prison without parole plus an additional 40 years; the two life sentences were delivered from convictions of Counts Two and Four: distribution of narcotics by means of the internet and continuing criminal enterprise, respectively.

The reason for the defense’s appeal is as follows:

All the evidence against Ulbricht “was permeated by corruption of two law enforcement agents participating in the investigation, the restrictions on cross-examination, and preclusion of expert witnesses offered to overcome those restrictions” and that all that “eviscerated Ulbricht’s defense and denied him a fair trial.”

But the defense is also appealing the trial because the sentence of life in prison without parole is excessive and unprecedented. During the oral hearing, the prosecution defended the sentence and the appeal to the six people whose deaths were associated with drugs purchased from the Silk Road. Their justification echoed the opinion of Judge Katherine Forrest, who presided over the original trial and spent a great deal of time on this subject during the sentencing proceedings.

Judge Forrest did explain why she used these deaths as justification for her sentencing, so we can analyze her logic here. It is important to understand what Judge Forrest said and why she said it.

The defendant is not convicted of killing these people. Those are not the offenses of conviction. This is related conduct relevant to his sentencing. His guidelines are not being enhanced for bodily harm to these individuals or the suffering that they may have endured. The question as to whether this information is properly included in the PSR is whether the Court finds, by a preponderance of the evidence that the deaths, in some way, related to Silk Road. And, they do.

As a related point, the Court has determined that for the same reason it is appropriate for the decedent’s relatives to speak at this proceeding to the extent they so request. I would note that there is a definition of crime victims that is contained in 18 U.S.C. 3771(b)(2)(D). However, that definition is not, in and of itself, controlling, as to what the Court can determine is a victim for purposes of a sentencing proceeding. But, I do find, nonetheless, that the decedents here constitute victims under that provision. A victim is simply person against whom the offense is committed. It does not mean that the victim, him or herself, could not be participating in some way or manner in the conduct that is ultimately leading to his or her own death.

Here the relevant offense committed is the unlawful distribution of drugs and the running of a criminal drug enterprise, inter alia, and there is no factual doubt that based on the evidence before the Court, the sale of the drugs through Silk Road caused harm to the decedents. Whether it was a factor in causing their death, a contributing factor, or somehow related to their deaths in close association is not a decision that we have to make for today’s purposes.

The Court’s determination is supported by the following:

The trial record of this matter established beyond doubt that the types of drugs associated with the deaths of each and every one of these individuals were in fact available on Silk Road. But, in addition to that, there is a direct tie to Silk Road to each of the decedents and to the purchase of the drugs in proximate — very proximate relation to their death. (p. 26-27)

It is important to note the definition of “victim” and how it is used throughout the sentencing proceedings and subsequent appeal hearing because it can be very misleading to someone who is not aware of the wordsmithing. The six people who died in connection with drugs from the Silk Road have been labeled as victims, which under normal circumstances and the typical definition of the term would imply that Ulbricht took actions that led directly to their deaths. But this is not what victim means here; the definition used here is much more open-ended. This definition of victim includes a “person against whom the offense is committed.” And as Forrest did state, the offense is neither bodily harm nor suffering.

So what is the offense that these people are victims of? According to Forrest, they are victims of the drug trafficking and a criminal enterprise (and the other charges). What is the requirement for victimhood? It is “that the deaths, in some way, related to Silk Road.”

This broad definition makes it easy for the prosecution to claim victim status for just about anyone they want. It is a powerful tool.

The logic is convoluted and confusing and these points can be easily overlooked, especially when, despite all of this, Forrest and the parents of two of the people who died who spoke at the sentencing constantly appealed to the bodily harm and suffering that were endured. And of course, I do not mean to downplay the suffering of the families who lost loved ones; the suffering is real and my heart goes out to them. However, it is incorrect given the parameters that had just been set forth by Forrest. This is troubling, because losing your child to a drug overdose is an obviously highly emotional event, but it would appear that Forrest had no issue with allowing the very predictable definition creep.

One of the judges in the hearing appeared to notice this or at least recognized that pinning the deaths on Ulbricht would be unprecedented and questioned the prosecution about it (audio at the end). He commented that the sentencing proceedings got “kind of hijacked by the overdose deaths.” He went on to say:

When you harp on that, when you emphasize that in this case it’s not just a theoretical possibility but there were in fact overdoses that more or less could be attributed to these particular drugs, isn’t that just luck that one particular drug dealer who, where the overdose eventuated in fact and the government finds out about it and the victims’ relatives are prepared to come forward and testify, that creates an enormous emotional overload on something that is effectively present in every sale of heroin case?

and

Doesn’t that put an extraordinary thumb on the scales that shouldn’t be there?

Regarding the “extraordinary thumb on the scales,” the prosecution said that the case was “unprecedented” and that Ulbricht operated the Silk Road “deliberately and with a personal profit.” But how is this unprecedented, since what drug dealer, despite the size or scope of his operation, does not do it “deliberately and with a personal profit”?

The prosecution also argued that bringing up the deaths was a way to contradict that the Silk Road was a harm reduction service. Bringing up the deaths does not contradict that. It would if the Silk Road had been argued as a harm elimination service, but that was clearly not the argument. The prosecution constantly appealed to the “unprecedented” nature of the Silk Road. So if the Silk Road were so large, wouldn’t it be reasonable to expect them to find more than just six deaths related to the drugs purchased there? Based on everything the prosecution and Judge Forrest has said about the Silk Road, six deaths is a remarkably low number.

This confusion, this movement of the goalposts regarding the deaths of the people who used drugs purchased on the Silk Road led to an unfair life sentence without parole for Ross Ulbricht. Whether it was intentional or due to sloppiness, there is strong evidence that Judge Forrest did not follow her own definitions and rules when determining a sentence. It appears that at least one of the judges at the hearing recognized that. It should furthermore give them reason question the other aspects of the trial over which Judge Forrest presided and lead them to recommend a retrial.

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