Ross Ulbricht was Railroaded for Non-Violent Crimes he Likely did not Commit and Sentenced to Double Life in Prison + 40yrs

The 4^th Amendment

One of the most important parts of the appeal addresses a violation of the Fourth amendment and how it applies to the digital age. This foundational law guards our privacy from government intrusion and is essential to living a free life. It asserts the right of people to be secure in “their persons, houses, papers and effects against unreasonable searches and seizures.” It requires that warrants specifically describe what is to be searched and seized. It is unconstitutional for the government to rummage through property without meeting this particularity requirement. Yet there were no particularity limits in the warrants used in Ross’s case.

Illegal warrants

The appeal, and an amicus brief submitted by the National Assn. of Criminal Defense Lawyers and joined by the Electronic Frontier Foundation (EFF), argues that the government did not obtain proper warrants in pursuing the Silk Road investigation. Instead law enforcement used general warrants to seize Ross’s laptop, Gmail and Facebook accounts. A general warrant lacks specificity and permits unlimited rummaging through private information and property. It is a fishing expedition to see what can be found. This is the type of warrant abhorred by the Framers; was a driving force behind the American Revolution; and inspired the Fourth Amendment.

Joshua Dratel argues that “Rather than require the government to establish probable cause in advance of reviewing categories of electronic data, they would license the government to examine every file to assure that probable cause to seize it did not exist. Any more dramatic or patent example of the “rummaging” could not be envisioned, yet that is what the government has done in this case with respect to Ulbricht’s laptop and Gmail and Facebook accounts.”

Digital vs. Physical

If government agents had searched and seized Ross’s file cabinet or desk, a general warrant would have been clearly unconstitutional. But because it was a laptop containing digital material, the prosecution maintains that it was not protected. Yet most of us keep our lives on our laptops and phones. In addition to documents, it is a gateway to medical, financial and other accounts, as well as browsing history providing a digital road map to one’s interests, inquiries, purchases, and communications. A laptop is a file cabinet on steroids.

Through the Silk Road case the government is saying that, because we use laptops and cell phones instead of letters and landlines must surrender our right to privacy. It is saying that the Fourth Amendment is obsolete because we keep our personal information in digital form. The defense argued against this, but the judge sided with the prosecution and precedent has been set, at least at the trial court level. The decision was reached despite a decade of Supreme Court decisions—such as Riley v. California, United States v. Jones, and Kyllo v. United States—that clearly acknowledge the importance of Fourth Amendment protections of digital information and devices.

Tracking Devices

The appeal also says that the pen register and trap-and-trace orders violated the Fourth Amendment because, rather than by a warrant based on probable cause, they were implemented by court order. So there were no warrants.  “While ostensibly a pen-trap reveals only identifying information, these pen-traps had an ulterior purpose: to track Ulbricht’s internet activity and his physical location, in an effort to connect him with access to the administrative section of the Silk Road Servers at particular times on particular date,” the appeal says (p. 127). That purpose extends well beyond what is permissible for a pen-trap.

Double life + 40 years

Although a life sentence, especially for drug trafficking, is rare in the federal system, Ross was sentenced to double life in prison without parole plus 40 years. It was for the following non-violent crimes: Distribution of Narcotics by Means of the Internet; Continuing Criminal Enterprise; Conspiracy to Commit and Aid and Abet Computer Hacking; Conspiracy to Traffic in Fraudulent Identity Documents; and Money Laundering Conspiracy.  These are all non-violent charges for a first-time offender.

The appeal  rightly states that this sentence  “shocks the conscience,” and that Judge Forrest was “procedurally and substantively unreasonable and thereby violated Ulbricht’s Fifth Amendment right to Due Process.”

Unsubstantiated and Unproven

It also points out that the judge relied heavily on unsubstantiated and unproven allegations of overdose deaths connected to Silk Road, stating that “the deaths, in some way, related to Silk Road.” These allegations were never mentioned at trial, and were based on what the appeal calls an “entirely subjective, undefined and unprecedented standard.”  The judge ignored a pathology report which said the accusations were “incomplete, unreliable and inaccurate.” Yet , according to United States v. Pugliese, in order to ensure that a defendant’s right to due process at sentencing is just, “a sentencing court must assure itself that the information upon which it relies when fixing sentence is reliable and accurate.”

In addition to ignoring the expert forensic pathologist, the judge punished Ross in a way that even those who sell illegal drugs are not. The Court did not cite a single case – despite the defense’s challenge to the government – where even those who manage large tangible drug organizations are sentenced based on overdose deaths that are not part of the charges, much less any as weak and unproven as these.

It is interesting to note that the government had seized and controlled the Silk Road server in June, 2013, after which two of these people died. Does this make them responsible for those deaths too?

Double standard

The appeal also points out that this sentence created a “grotesque disparity.” Indeed, two vendors on Silk Road whose charges, unlike Ross’, were selling heroin and other drugs (one the leading seller on the site, got 10 years and the largest cocaine seller on the site got 5 years). were spared any liability for overdose deaths at sentencing. “Although they cooperated with the government, the disparity between their sentences and Ulbricht’s cannot be rationalized by that factor alone,” the appeal states.

In addition, Peter Nash, a forum moderator and administrator on Silk Road when the site had its highest volume of sales, was given “time served” –a 17-month sentence– even though he had a mandatory minimum of 10 years. Although Nash was involved with the site when five of the six deaths occurred, this did not factor in his sentencing.

Dratel also referenced the Sentencing Reform Act, which requires that the judge impose a sentence that is “sufficient, but not greater than necessary.” The court never offered any reason why the draconian sentence was necessary. This act was passed by Congress to provide fairness in sentencing and avoid disparities among defendants with similar charges.  An extremely harsh sentence like this, far beyond the norm, is what this act of Congress was created to avoid.

“A judicial system that eschews compassion runs counter to all legal, as well as religious and social doctrine,“ Dratel said.

Rejected by judge

Citing more  reasons why the sentence was substantively unreasonable, the appeal points out that the judge ignored the 99 (now 100) letters submitted to the court, speaking  of the positive contributions Ulbricht has made, and could make in the future if given a reasonable sentence.

In addition to her rejecting the expertise of the forensic pathologist, Judge Forrest also ignored the empirical, academic and practical research presented in Ross’s sentencing submission, although some of that research was about Silk Road specifically, and its harm reduction effects on the drug culture. Instead she defaulted to the outdated and failed claim that more incarceration is the solution, even though courts, politicians and policy-makers now reject this. The judge also rejected all the studies presented to her, saying that general deterrence is illusory and should not be a factor, much less used as a basis for a life sentence.

According to the appeal, “The illusory nature of general deterrence clearly holds true for internet drug sales, given that they skyrocketed after Ulbricht’s arrest and even after his conviction. A1027-29. Again, even if there were some deterrent effect, the Court failed to provide any basis for a life sentence as necessary. Resort to general deterrence without any confining principles – some standard, some comparative analysis – guarantees that it will create disparity that is immeasurable and inequitable.

Not accused of drug dealing

The appeal also points out that Ross is not accused of selling drugs. “Even assuming his guilt (for purposes of sentencing) he created an internet platform that enabled others to do so, and thus, the proper analogy would be to a landlord who knowingly leases space and collects rent and utility payments from tenants whom he knows sell drugs from the premises (and even whom he markets to). There is a federal statute punishing that conduct – 21 U.S.C. §856, the “crack house” law – and the maximum sentence is 20 years’ imprisonment.

Shocks the conscience

“In this case, it was also unconscionable. The life sentence imposed on 30-year old Ross Ulbricht “shocks the conscience” – or at the very least “stirs it” – and is therefore substantively unreasonable. Accordingly, Ulbricht should be resentenced before a different judge to avoid the irremediable taint from the improper factors the Court considered.

“Accordingly, Ulbricht’s life sentence should be vacated and he should be remanded to a different judge for resentencing without the alleged overdose deaths as a factor at sentencing.”