This paper will discuss the case UNITED STATES OF AMERICA v. ROSS WILLIAM ULBRICHT. The paper will be broken down into what happened to Ross Ulbricht, evidence against Ulbricht, Ulbricht’s appeal, and the conclusion. The writer will explain in the conclusion if the court’s where logical and reasonable on the sentencing based off the writer’s opinion as well as what transpired.
Ross Ulbricht was arrested in 2013 for illegally operating an online website on the Darknet or Tor that sold illegal drugs of all kinds. The website in question was called The Silk Road. On August 21, 2014 Ross was charged with money laundering, conspiracy to traffic narcotics, and conspiracy to commit computer hacking. He was offered a plea bargain that would have given him a decade in prison but decided to fight the case instead. Ross had allegedly paid $730,000 for five murders to be carried out but was never convicted for murder. On February 4, 2015 Ross was convicted on all count’s except murder and sentenced to double life sentence plus forty years.
Around 2012 the administrator to the site silk road had changed the username they had from admin to dread Pirate Roberts. The government had found Ulbricht’s laptop with the private PGP key used to sign his posts as Dread Pirate Robert’s. This key is unique and only the person who owns the account may have it. The government also uncovered thousands of chat logs with the silk road employees, detailed journal entries by Ulbricht on ownership of the site, a list of tasks and ideas by Ulbricht for silk road, a copy of the database for the site, a spreadsheet for cataloging both servers that hosted the site, expenses for the site, as well as profits associated with silk road. Multiple usb drives where also found that had copies of documents from Ulbricht’s laptop for silk road and crumbled up papers in his bedroom that had ideas on how to improve the rating system.
The government had also introduced circumstantial evidence that linked Ulbricht to silk road. The evidence shown was Dread Pirate Rogers online discussing travel plans stating to a user on October 30th, 2011 that he would be traveling soon. On his Gmail account that had his real name they discovered a travel itinerary from Cheap Air that showed Ulbricht was traveling on November 15th, 2011. Ulbricht had also social media activity showing him in Thailand on February 2012 which Dread Pirate Roberts had discussed on a chat on January 27th, 2012 that he was going to Thailand. He stated he was in Thailand now attracted by the allure of a warm beach. Dread Pirate Roberts stated to a user that he was in Thailand to experience the beaches and jungles one of the photos from Ulbricht’s Facebook album stated in front of what appears to be jungles and beaches.
The government also presented evidence of one of the employees of silk road threatening to reveal a client’s private information public if they did not receive the money. Dread Pirate Roberts had contacted another employee stating that the other employee was a liability and he would not mind if they were executed and paid $150,000 in Bitcoin for the murder of the employee. The user had sent Dread Pirate Robert’s a picture of the dead victim. Robert’s thanked the user for there swift action and stated they received the picture and deleted it. No evidence of an actual murder happening was found though.
An intent to kill may be proved by circumstantial evidence. . . . As we have repeatedly stated, “under the proper circumstances, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the human body.” [In State v. Raines, 326 Md. 582 (1992),] we upheld the use of such an inference. (Kadish et al., 2016, p. 645)
As stated, an intent to kill can be circumstantial evidence just as it is with Ulbricht’s case. A reasonable jury should not require that there be evidence of a murder just that Dread Pirate Robert’s did pay for a murder to happen and he believes it did occur. This evidence even though it is circumstantial does still link him with a murder that he paid for. This already shows the Actus Reas of him paying for the murder and the Mens Rea of him wanting a person dead. Dread Pirate Roberts also ordered another four murders to happen by the same person that supposedly killed the previous employee. Roberts had negotiated to pay over $500,000 in Bitcoin to this user for the four new murders. On April 6th, 2013 Ulbricht had written in a file on his laptop that he gave the go ahead to the user. Two day’s later he recorded he sent payment to this user. One of the government’s experts was able to link the transactions to Ulbricht’s Bitcoin wallet address that was located on his laptop.
72. Homicide is the killing of a human being by a human being. Unlawful homicide may be murder, manslaughter, suicide or infanticide. Murder and manslaughter are felonies at common law and are not defined by statute. The traditional definition or description of murder . . . is in common practice often . . . briefly defined as “unlawful killing with ‘malice aforethought’ ”; while manslaughter is defined as “unlawful killing without ‘malice aforethought.’ ” . . . (Kadish et al., 2016, p. 444)
Even though there is no evidence of a death occurring there is evidence of Ulbricht paying for a murder to happen of five individuals. He did poses malice to do so this is good evidence to show attempted murder.
However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first-degree murder, regardless of the circumstances. . . . “The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing . . . and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first-degree murder for any homicide committed in the course thereof. (Kadish et al., 2016, p. 539)
There may be no evidence that the act was committed but as stated once a person embarks on a felony he is directly within the clear legislative warning if a death did occur it would-be first-degree murder.
1107. Murder-for-Hire—The Offense
The "murder-for-hire" statute, 18 U.S.C. § 1958, was enacted as part of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Ch. X, Part A (Oct. 12, 1984). Section 1958(a) provides:
Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay anything of pecuniary value, or who conspires to do so [violates this statute].
Initially § 1958 was codified as 18 U.S.C. § 1952A, but in 1988 it was renumbered as § 1958. Section 1958 was patterned after the Interstate Travel in Aid of Racketeering (ITAR) statute, 18 U.S.C. § 1952. S. Rep. No. 225, 98th Cong., 2d Sess. 306, reprinted in 1984 U.S. Code Cong. & Adm. News 3182, 3485 (hereinafter S. Rep. No. 225). Consequently, some case law under § 1952, especially that relating to the use of a facility of interstate commerce, is applicable to § 1958.
Section 1958 renders it illegal: 1) to travel or use facilities of interstate or foreign commerce; 2) with intent that a murder in violation of State or Federal law be committed; 3) for money or other pecuniary compensation. See United States v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993). The government is not required to prove that a defendant intended or knew that the mails or any other facility of interstate commerce would be used or that interstate travel would occur. United States v. Edelman, 873 F.2d 791, 794-95 (5th Cir. 1989). Rather, a defendant must use or cause another to use such a facility with the intent that a murder be committed. See United States v. Winter, 33 F.3d 720, 721 (6th Cir.), cert. denied, 115 S.Ct. 1148 (1994). (The United States Department of Justice, 2020)
Ulbricht had already violated the laws and it shows in the murder for hire statute that it is very illegal the punishment though varies depending on various circumstances.
The maximum penalty for violating § 1958 varies with the severity of the conduct: a fine and/or ten years for any violation; a fine and/or twenty years if personal injury results; and a fine of not more than $250,000 and/or death or life imprisonment if death results. If the death penalty might be applicable, the United States Attorney's Office must comply with the guidelines at JM 9-10.000. (The United States Department of Justice, 2020)
Depending if the murder’s occurred or not this could have been a life sentence for Ulbricht just based off of this but since no evidence was found of the murder’s transpiring they could not charge him to the full extent of the law. This still show’s malice in Ulbricht and Mens Rea and Actus Reas are proven.
The pre-sentencing investigation also listed six deaths that had occurred do to drug intake by people who bought from silk road. One died from an overdose of heroin combined with other drugs. The victim had a needle sticking out of there arm and a bag of heroin with a computer opened to the silk road chat and the dealer describing the package that was opened at the time that was to arrive that same day the tracking number in the chat matched the package. Two others died shortly after buying drugs from the website. The fourth died after ingesting a synthetic drug bought from an intermediary dealer from silk road. The fifth’s death happened after they leaped from a balcony after ingesting psychedelic drugs bought from silk road. The sixth died of pneumonia after placing over thirty orders of heroin on the site as well as other drugs. The autopsy examiner theorized that the persons drug use may have made the person not aware of the severity of there illness and this contributed to there death.
The court then turned to the six drug-related deaths described in the PSR. Over Ulbricht's objection, the district court found that the deaths were “related conduct relevant to his sentencing” because 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.” Id. at 1472. It went on to explain that “the relevant offense committed is the unlawful distribution of drugs and the running of a criminal drug enterprise, ․ [and] based on the evidence before the Court, the sale of the drugs through Silk Road caused harm to the decedents.” Id. at 1473. The district court described the facts associated with five of the deaths and specifically found that each was connected to Silk Road, rejecting the defendant's argument that but-for causation was required in order for the court to consider the deaths as relevant to the offense conduct.25 Parents of two of the decedents also made statements at the proceeding, describing the emotional impact that the losses had on them and their families. (FindLaw, n.d.)
Ulbricht argued that silk road had practiced harm reduction and even had a doctor that was communicating to clients on silk road assisting in harm reduction methods speak in court. The doctor stated that the victims had to many drugs ingested in the system to determine cause of death. There were also missing autopsy reports, taxology reports, as well as death certificates for these deaths. Ulbricht tried to use these to help his case, but this did not work.
Burrage v. United States, 134 S. Ct. 881 (2014). A federal statute imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes a controlled substance, when “death or serious bodily injury results.” Joshua Banka died following an extended drug binge. Drugs present in his system at the time of death included heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. Experts testified that heroin supplied by the defendant “was a contributing factor” in Banka’s death, since it interacted with the other drugs to stop Banka’s breathing. If Banka had not taken the heroin, his death would still have been possible but much less likely. The jury convicted on the mandatory minimum count, after being instructed that to do so it would have to find that the heroin was a “contributing cause of Banka’s death.” The Supreme Court reversed the conviction, holding that the statute’s “results” element reflected the traditional requirement of but-for causation, which was not satisfied on these facts. The prosecution, noting that “at least 46 percent of overdose deaths in 2010 involved more than one drug” argued that strict but-for causation should not be required, so long as a drug distributed by the defendant was a “substantial” or “contributing” factor in producing the result. Rejecting that approach, the Court explained (id. at 887-892):
Several state courts have adopted such a rule, but the American Law Institute declined to do so in its Model Penal Code [§2.03(1)(a)]. . . . Especially in the interpretation of a criminal statute subject to the rule of lenity, we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant. . . . We doubt that the requirement of but-for causation for this incremental punishment will prove a policy disaster. . . . Indeed, it is more likely the Government’s proposal that “cannot be reconciled with sound policy,” given the need for clarity and certainty in the criminal law. . . . Unsurprisingly, [the Government] could not specify how important or how substantial a cause must be to qualify. . . . Is it sufficient that use of a drug made the victim’s death 50 percent more likely? Fifteen percent? Five? . . . Uncertainty of that kind cannot be squared with the beyond-a-reasonable-doubt standard applicable in criminal trials or with the need to express criminal laws in terms ordinary persons can comprehend. . . . We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision . . . unless such use is a but-for cause of the death or injury. (Kadish et al., 2016, p. 609-610)
Ulbricht not only brought up a good point but as stated in the case Burrage v. United States the deaths caused from drugs can not be placed on the dealer since it is not independently sufficient cause of the victim’s death. Even though they came from the site Ulbricht did not distribute them himself. Even if he did the deaths still could have occurred with or without him distributing. For the courts to charge Ulbricht for six deaths caused by overdoses is something unheard of and is normally not applicable.
Ulbricht raised several claims for his appeal. The first being his Fourth Amendment rights. He stated the court suppressed his motion to suppress evidence against him. The first was the use of the pen/trap orders used by the government to monitor IP address traffic from and to his home router. This violated his Fourth Amendment rights. The second was the government did not have a warrant to search his laptop, Google account, or his Facebook and this was a direct violation to the Fourth Amendment.
The Fourth Amendment to the United States Constitution provides that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (FindLaw, n.d.)
The court stated that the Pen/Trap status does not require a search warrant the application only required a certification and that the information that was to be obtained was relevant to an ongoing investigation. This did authorize the government to use this method to gather information on the suspect and did not violate the Fourth Amendment. The laptop warrant was also ruled as an appropriate measure and did not violate the fourth amendment.
To be sufficiently particular under the Fourth Amendment, a warrant must satisfy three requirements. First, “a warrant must identify the specific offense for which the police have established probable cause.” United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013). Second, “a warrant must describe the place to be searched.” Id. at 445-46. Finally, the “warrant must specify the items to be seized by their relation to designated crimes.” Id. at 446 (internal quotation marks omitted). (FindLaw, n.d.)
The warrant listed the affidavit listing the crimes charged which include narcotic trafficking, computer hacking, money laundering, as well as murder-for-hire offenses. The warrant was found applicable and did not break the Fourth Amendment. Even though a computer today is similar to searching ones house the court needed to accept the broad description and allow for this to be applicable because it was relevant to the investigation. The Google and Facebook warrants were also found applicable for the same reasons the laptop was.
Ulbricht tried to fight using the defense that the agents who arrested him committed their own crimes and were caught. The crimes in question where stealing a large sum of Bitcoin from Ulbricht and trying to flee the country after Ulbricht was arrested. Ulbricht wanted the evidence to be thrown out due to these agents’ corruption.
Rule 17(c), Fed. R. Crim. P., allows parties to subpoena documents and objects to be introduced at criminal trials. A subpoena must meet three criteria: “(1) relevancy; (2) admissibility; [and] (3) specificity.” United States v. Nixon, 418 U.S. 683, 700 (1974). The party requesting the subpoena must also show that the information sought is “not otherwise procurable reasonably in advance of trial by exercise of due diligence,” that “the party cannot properly prepare for trial without such production,” and that “the application is made in good faith and is not intended as a general ‘fishing expedition.’ ” Id. at 699-700. We review the district court's discovery rulings for abuse of discretion. United States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009). (FindLaw, n.d.)
Ulbricht failed to produce any such evidence and the court dismissed his actions. The agent’s may have been found corrupt but stealing money does not necessarily mean a case was tampered with. The courts did rule that much of the evidence was relevant and Ulbricht was never charged with the circumstantial evidence. Even if Ulbricht wanted to use the defense of entrapment in this case especially since the agent’s where corrupt it would not be applicable.
Even if a suspect is predisposed to commit the offense (thereby negating the entrapment defense), why should a defendant’s sentence depend on attendant circumstances manipulated by the government? As the dissenting opinion in Vaden observed, accepting law enforcement agents as principals gives them the discretion to determine the charges an accomplice faces and often the sentence as well. Law enforcement officers can engage in “sentencing entrapment”—where the government creates or induces a far greater crime than the suspect originally intends, for example, by having defendants cook powder cocaine into crack or engage in a drug transaction in a school zone, thereby exposing the defendant to a much higher sentence. Derrick Augustus Carter, To Catch the Lion, Tether the Goat: Entrapment, Conspiracy, and Sentencing Manipulation, 42 Akron L. Rev. 135, 137 (2009). (Kadish et al., 2016, p. 737)
Entrapment as a defense does not apply since Ulbricht was selling large numbers of narcotics and in a sense, he was a drug lord or kingpin not a common drug dealer. Entrapment by law enforcement is not unheard of and the agents are defended in suing such tactics. The corruption of the agent’s does not exonerate Ulbricht in any way or form since the evidence presented was more than enough for a sentencing and the two cases do not have any relation to one another besides the fact the money was linked.
Sentencing consequences. In some jurisdictions, most notably the federal system, sentences are tied in part to the amounts of drugs or money involved in a criminal offense. As a result, individuals charged with drug conspiracies can be sentenced on the basis of larger quantities of drugs than the ones they personally deal because they are held responsible for the drugs being sold by the entire conspiracy. Similarly, individuals in fraud conspiracies can be held responsible for greater dollar losses than those they directly cause because they are criminally liable for the total loss amounts involved in the conspiracy. Holding every member of the conspiracy equally liable for the total damage can have the perverse effect that individuals who rank low in the conspiracy will receive longer sentences than those higher up. That is because individuals with greater roles in the conspiracy often have more information to offer the government, and thus can get a bigger sentence reduction for cooperating and providing substantial assistance, while lower ranking participants often have little information to offer.9 Judge Bright highlights the irony of this system (United States v. Griffin, 17 F.3d 269, 274 (8th Cir. 1994) (Bright, J., dissenting)):What kind of criminal justice system rewards the drug kingpin or near-kingpin who informs on all the criminal colleagues he or she has recruited, but sends to prison for years and years the least knowledgeable or culpable conspirator, one who knows very little about the conspiracy and is without information for the prosecutors?Keep in mind the consequences of a prosecution for conspiracy in assessing where the lines of culpability should be drawn. (Kadish et al., 2016, p. 747)
Ulbricht was sentenced to double life plus forty years which is unheard of for a drug dealer. In this case though the courts did take into account how much drugs where sold from 2011 till 2013. A larger quantity of drugs where distributed because of Ulbricht’s website and so the sentencing is not unheard of. He had a greater role in the conspiracy and thus deserved a harsher punishment.
To conclude with the paper. The courts had a lot of evidence against Ulbricht. Nothing done was unheard of besides the evidence presented trying to link Ulbricht to the deaths of the clients. The death’s where not applicable to the case since even though Ulbricht owned the website, he did not sell drug’s directly, nor could he be held responsible for drug overdoses or anything else. He did own a black-market site that distributed large quantities of narcotics across the globe as well as attempted to pay for five murders to occur. He also attempted to bribe the agent. The major crime he was sentenced for is drug conspiracy and since in a sense he was a drug kingpin does deserve the sentence. Ulbricht’s knowledge in the court and the laws and how he also had prepared a defense against the pen/trap orders show to me that he may have been prepared to go through court and use his defense that he may have thought would help him. In the end it did not and the courts had reason to not accept his appeal. Ulbricht not accepting a plea bargain of ten years is very illogical to say the least I cannot say if the person was to arrogant or just stubborn but because of his refusal to accept the bargain he ended up with a worse sentence. Even though the sentence is unheard of it does show that the courts where trying to deter other’s from committing these same crimes. Computer related crimes of these extent are new, and it is the court’s job to deter others from going down this road. Therefore, an extreme punishment was necessary in this case.
Definitions
Tor – An open source software that allows internet communication of all sorts anonymously.
Darknet – The general populaces name for Tor regarded as such for drug trafficking, pictures and videos of grotesque and disgusting things, child porn, and many other illegal activities as well as illicit material of all sorts.
Silk Road – An online black-market that was run by Ross Ulbricht from 2011 till 2013. Not to be confused with the land and sea routes connecting East Asia and Southeast Asia with South Asia, Persia, the Arabian Peninsula, East Africa, and Southern Europe used by the Han Dynasty in China from 207 BCE-220 CE.
Parole – A release from prison early but the person must live up to responsibilities the courts have decided on for the remainder of the sentence.
Life Sentence – “In some jurisdictions, a “life” sentence is a misnomer in that it can come with the possibility of parole. Depending on the state’s law, a defendant may be eligible for parole after a set number of years, like 20, 25, or 40. A defendant who has served the minimum sentence can apply to a parole board for release.” (Nolo, 2013)
Double Life Sentence – A back to back sentence of life this ensures the person will remain behind bars for a minimum number of years.
PGP (Pretty Good Privacy) – Cryptographic method to communicate privately one has a public key and a private. A message can be verified by the recipient as long as they have the key.
Bitcoin – An online anonymous crypto currency used to buy or sell items online supposedly anonymous or pseudo anonymous.
Pen/Trap Orders – An order given to investigators through a probable cause warrant. This allows the investigators to trace a number across the United States. This order is different from a phone tap since no phone calls are collected only numbers.
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