1.Antonopoulus Preclusion, Mistrial Motion, Jones Stipulation, and Supplemental Charge Requests

MR. DRATEL: Yes, your Honor. With respect to the Court's opinion yesterday precluding the two proposed defense experts, I would just object to the time frame in which we were compelled to answer. I don't think it was reasonable or fair. I think Mr. Ulbricht's Sixth Amendment right to counsel and in turn his Fifth Amendment right to counsel -- I mean his Fifth Amendment right to due process were denied by that. There was no deadline set before the weekend. We had reached out to the government to ask for a schedule. We did not hear back from them. And in addition, there were -- we just did not get a confirmation.

Ms. Lewis talked with the government about Sunday and they were going to get back to us with a confirmation. They agreed to Sunday. I guess Ms. Lewis -- we didn't get to the Court the schedule. That was a miscommunication. I did not have any opportunity to contribute to the Antonopoulus letter and there are significant aspects of that issue that were not addressed in that letter because we did not have access to Mr. Antonopoulus during the period of time.

And we were able to speak to him yesterday after the Court had already issued its order and he would have been able to provide significant evidence rebutting material and testimony by Mr. Yum from last Thursday for which we had virtually no notice.

I just want to go through some of the issues that he would have been able to address. One is that the impact of a significant movement of bitcoin on the market, in other words, what the volatility, what the volume was in trading at certain periods of time and what the movement of the amount of bitcoins that Mr. Yum talked about and what that would have involved and what the movement of certain amounts of bitcoin would have involved on the market.

In fact, the FBI auction of the bitcoins that they seized from the laptop of Mr. Ulbricht was the largest single trade I think in the history of bitcoin, was the largest single transaction at that point.

Also with respect to the keys that Mr. Yum testified to about bitcoin keys on the wallet and on the laptop and addresses, Mr. Antonopoulus would have been able to testify that it does not indicate ownership, that there are three aspects of this process: One is access, one is control and one is ownership. Access, which is all having the key suggests is the weakest form of ownership or control. It doesn't have either. And then control is weaker and then there's ownership.

The keys on the laptop do not mean that someone owns or controls the bitcoins. It also does not mean it's exclusive. More than one person can have access through possession of the keys. He analogized this concept to storage lockers to having a pin number, where anyone with a pin number with the storage locker could go to the storage locker, could get access and also make deposits with a cash slot, that all that would mean was access.

Also with respect to the laptop, he would be able to opine that Mr. Yum's testimony and analysis would not be conclusive as to how these bitcoins got into the wallet on the laptop. Who else could have had access? And not even know that the keys that the person whose laptop it was might not even know that the keys were there or that the bitcoins were there, that there is knowledge of public addresses and people can deposit and get returns. He has set up accounts where people have put in money who he doesn't know. We had evidence here about the FBI -- even when the FBI took the bitcoins, the account continued to grow because people were putting money in. And there's a whole range of reasons why that occurs in the bitcoin market.

He also said that storing keys on a laptop is terrible security. It is not recommended. You should never have it on a laptop. It should never be on any computer connected to the Internet. And he assumes that everything connected to the Internet is compromised.

He also confirmed my cross-examination of Mr. Yum which is that a cold wallet is one that has never been online and is on a computer that's disabled to preclude Internet access; that once a wallet has been online, it is a hot wallet, which is something that Mr. Yum disputed me on and he was wrong. He would only use a hot wallet for a single transaction, which would be to withdraw bitcoins from a wallet. He would never use it for any other purpose. He also talked about the 700,000 number that the government had in Mr. Yum's testimony and report, that there is a chance for a significant double-counting because things can go from Silk Road to the wallet back to Silk Road back to the wallet and these round trips, which we establish have occurred in that -- in the time that now we've had to do this and talk to Mr.Ant no louse about it and others, that there's no indication that it's actually 700,000 bitcoins, that it could be many of the same bitcoins going back and forth.

There are a number of explanations that he would have had for that. One is that many merchants and customers on Silk Road in his experience as an expert used Silk Road as a hot wallet and as a result they have a running balance moving back and forth from Silk Road to their own wallet from Silk Road to their own wallet back and forth, deposits and withdrawals, deposits and withdrawals. He said a lot of merchants do that. And there's a lot of literature out there and posts and all of that. He said there are legal traders on Silk Road who do that often, people who trade T-shirts, coffee, key chains. He said, in fact, when the government froze the wallets, a lot of vendors with legitimate merchandise were out their money because the bitcoins were seized.

He also pointed out that Silk Road is not a one-to-one type of bitcoin wallet in the sense that if you were to put a bitcoin in the Silk Road wallet, you would not get that wallet -- you would not get that bitcoin back when you withdrew. It all goes to a single pot. Very much like cash at a bank or an ATM, if you put in five 20s in a deposit and then you withdraw, you don't get the same five 20s back. So that could also account for these transactions, double-counting, because you can't assume that it's not the same bitcoin going back and forth and back and forth.

Also, Silk Road, according to his experience, was used to trade currencies for bitcoin and as a primitive currency exchange and that bitcoin speculators would use Silk Road in and out as a means of speculation in bitcoin, and, of course, that is what the defense theory is with respect to what Mr. Ulbricht was doing at the time in terms of his business.

Also, he also said that in the early days because Silk Road was a primary or the primary vehicle for using bitcoin in commerce, that many ordinary bitcoin transactions or ordinary bitcoin issues were treated on Silk Road where they weren't available anywhere else, such as bitcoin mining and other wallet issues and all of that as far as merchandise and people using Silk Road in the context of bitcoin as a wallet and as a means of exchange.

Also, he pointed out how bitcoins are traded in the sense that -- not so much traded but how payment works for bitcoins and that bitcoins are -- and this has to do also with bitcoin mining and what's called block reward meaning if you mine bitcoin successfully, you get block reward. Let's say you have 50.135 bitcoins would be a block award, so that goes to the American who mined it. And if that person wanted to purchase something for one bitcoin, they don't take one bitcoin and pay; they have to pay with the entire block of bitcoin that they received, the 50.135 bitcoin. So then you have to spend all of it. And what that means is essentially not dissimilar to, let's say, if I wanted to buy a pack of gum for a dollar and all I had was a $20 bill, I would have to use the 20 to pay for the dollar.

The difference with the bitcoin situation is this: When you get change from a bitcoin, in other words, if you pay for a single bitcoin item with a 50-bitcoin piece, you're going to get 49 bitcoins back in change. The difference in the cash situation, and I'll try to analogize it further, which is that the bitcoind wallet, which was used on Silk Road, that was the system used on Silk Road, it automatically puts the change in a new wallet. So that if I were to analogize it again to cash is that if I were to pay for a pack of gum worth a dollar with a $20 bill, if I take the 20 from my right pocket, when I get the change of $19, I put it in my left pocket. It's a different wallet because of this bitcoind program. That can also lead to overcounting. And he pointed out that these blocks are indivisible, they are of arbitrary size and there are algorithms for sorting these bitcoin amounts for efficient means of payment. It's something that Mr. Yum only touched on very, very generally that is important in a more specific sense because it accounts for the numbers of wallets, it accounts for the fractionalized nature of the bitcoin that's in the wallets, and we believe that that is relevant, that is important to our case. We did not have sufficient notice to provide that before. Mr. Antonopoulus was on a plane Saturday returning from overseas. And the government knew he was away based on Ms. Lewis' conversation with them. We had told the government that we would be providing his opinions to them Sunday when he arrived back in the United States. Let me just review my notes for one moment.

So we're clear, I did not speak or otherwise communicate with Ms. Lewis Saturday until later in the evening, and based on the Court's ruling before we had a reasonable and sufficient opportunity to respond, I move for mistrial or for the remedy of giving us a chance to put Mr. Antonopoulus on the stand.

MS. LEWIS: I wanted to add, obviously since Mr. Antonopoulus was traveling, we also anticipated we would be able to get a more complete sense of specifically what his credentials were. I had an idea, but I wanted to confirm them before putting them in a letter to the Court; and that was also the purpose of speaking with him on Sunday. I had told the government that we were intending to speak with him at 3:15 that day when he returned and that I would let them know as soon as we did have that conversation what his positions were because, obviously, I would not want to misrepresent to them something, have them agree to it, and then have it be something else.

He was in Germany. He had almost limited to no access to Wi-Fi, so we were not able to get these things before, though we did endeavor to do so. We were in communication with him. It's in the 3500 material. You can see we were communicating with him to try to get this information and we have this call set.

I did want to add, though, that he has been qualified as an expert on bitcoin in Canadian court. Obviously this is not an issue that has been in American courts practically at all, but it has been there. He's also spoken, I believe, in Europe as an expert on this topic. And he has also written a leading book in this area, "Mastering Bitcoin," as well as a host of articles on this topic. He's a security expert. All of this would have been in a subsequent submission had I had the opportunity to speak with him as planned on Sunday.

MR. DRATEL: As the Court is aware, the government's initial exhibit list and throughout the first half of the trial included Andrew Jones, who has pleaded guilty to his involvement in Silk Road as an administrator under the name of inigo. At some point midway through the trial, the government said they may not call him and then just last week conclusively told us that they would not call him.

When it initially became -- when I was initially informed that he would not be called by the government, I spoke with Mr. Turner about a specific piece of Brady material that the government provided. The government doesn't call it Brady because they don't call anything Brady.

Mr. Turner in a telephone conversation with me and Ms. Lewis said there is no Brady material in this case because he believes the defendant is guilty, so that's his view of Brady. So the notion that the government understands its Brady obligations is not reliable in this case.

So I asked him if he would stipulate to the piece that he knew we were interested in and he said yes, just a matter of language. Then I asked him again when he said that -- when they concluded they would not call Mr. Jones and he agreed again to stipulate. And then over the weekend yesterday I gave them the language of the stipulation which is only what is in their letter with the exception of one sentence which was removed; it's only what's in their letter. And I got back -- and then I spoke to Mr. Turner at 7:00 last night and he at first resisted unless I met one of his conditions on something completely unrelated that he would not stipulate unless I made met a condition that was completely unrelated. I agreed because this stipulation is that important to his condition. And then at 11:00, he writes me an email saying they're not stipulating.

MR. DRATEL: Can't call him. He's going to take the Fifth Amendment. I spoke to his lawyer. He's unavailable. So I would move it, by the way, either as a statement against penal interest, 807, defense witness immunity. I'd ask for all those things. This is a case where if ever there was an appropriate case for it, this is it.

So on December 29, 2014, we received a letter from the government and on the second page of the letter it says that in a recent witness interview, Andrew Jones a/k/a inigo said the following, and this is the quote. This is not necessarily a quote from Mr. Jones but this is the government's characterization of what he said.

MR. DRATEL: No. It's not a 302, but this is a letter from Mr. Turner, signed by Mr. Turner:

At some point in or about August or September 2013, Jones tried to authenticate that the Silk Road user "Dread Pirate Roberts" whom he was talking to at the time (via Pidgin chat) was the same person with whom he had been communicating in the past with this username. Previously in or about October 2012, Jones and "Dread Pirate Roberts" had agreed upon a "handshake" to use for authentication in which Jones would provide a certain prompt and "Dread Pirate Roberts" would provide a certain response. When during the 2013 chat in question Jones provided what he believed to be the designated prompt, "Dread Pirate Roberts" was unable to provide the response Jones thought they had agreed on; however, later in the chat, Jones asked "Dread Pirate Roberts" to validate himself by specifying the first job that "Dread Pirate Roberts" assigned to him (running the 'DPR book club') which "Dread Pirate Roberts" was able to do.

And then that's the block quote, and then the last paragraph is: The government is unaware of any extant record of the 2013 chat described by Jones. There is a record of an October 2012 chat between the defendant and Jones discussing a "handshake" in the file labeled MBSOBZVKHWX4HMJT on the defendant's computer, which has already been provided to the defense in discovery, and our stipulation would have included that specific chat, which is very short -- I think it's one page basically-- as part of the stipulation.

MR. DRATEL: Thank you, your Honor. I'll give the government a copy here and I'll hand one up to the Court. First, one, that law enforcement officers cannot qualify as coconspirators.

The second is that even if you conclude beyond a reasonable doubt that Mr. Ulbricht was involved in the sale of mushrooms on the Silk Road site or otherwise in 2011, that alone would not be sufficient to establish his guilt -- it says "guilty," a typo -- on Counts One, Two or Four or his participation in any of the conspiracies charged in Counts Three and Seven, and the reason for that is venue.

This is number three, the undercover purchases by Homeland Security Investigations in Chicago and any seizures made by Homeland Security Investigations in Chicago are not by themselves sufficient to find Mr. Ulbricht guilty on any count, again because of venue.

Number four, even if you find that Mr. Ulbricht ordered fake identification documents, that is not evidence you can consider with respect to Count Six. One is venue and the second is it's not what's charged. It's not charged conspiracy, even if it is a conspiracy.

Supplemental defense instruction number five would be in order to find Mr. Ulbricht guilty beyond a reasonable doubt, there must be evidence beyond the uncorroborated admission of the accused. It is necessary for the government to introduce substantial independent evidence which would tend to establish the trustiworthiness of any such statement sufficient. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify an inference of their truth. Any independent facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt. And the reason for that last instruction is rather arcane and archaic but still the viable principle of corpus delicti, which is that the uncorroborated admission or confession of an accused is not sufficient evidence and there must be some independent corroboration.

In the context of what I assume the government will be arguing with respect to journals is that Mr. Ulbricht acknowledged his participation in the defense even as early as 2011, even if we don't contest some of that.