Prosecutors Seeking Pretrial Incarceration of FTX’s Sam Bankman-Fried Blast His Defense’s First Amendment Argument: ‘Witness Tampering Is Not Constitutionally Protected Speech’

Crypto bro Sam Bankman-Fried, second largest Democrat donor after George Soros, is fighting the prosecutor’s motion for his pretrial incarceration in Manhattan’s Metropolitan Detention Center (MDC) ahead of his October trial.

SBF’s indictment alleges that ‘he was the mastermind and leader of a multi-year criminal scheme that involved defrauding investors, lenders, and retail customers of billions of dollars, and spending fraud proceeds to corruptly influence United States politics’.

After he was granted bond on December 22, 2022, he has been testing the limits and conditions of his release – and may have pushed too far.

The motion by United States Attorney Damian Williams:

“The defendant’s attempts to tamper with witnesses and interfere with the Government’s and public’s right to a fair trial and the due administration of justice, and his pattern of circumventing his bail conditions in that pursuit, demonstrate that no set of pretrial release conditions can adequately assure the safety of the community and that the defendant is unlikely to fully abide by any conditions of release.”

In January, SBF contacted FTX’s current General Counsel over the encrypted messaging application Signal, as well as by email, and wrote, in part: ‘I would really love to reconnect and see if there’s a way for us to have a constructive relationship, use each other as resources when possible, or at least vet things with each other’.

The Court limited his contact with former FTX and Alameda employees and use of encrypted or ephemeral messaging applications.

SNF’s defense urged that the defendant needed access to the internet, and specifically to his Google docs, in order to prepare for trial with his attorneys.

The latest incident that prompted the motion for his pretrial incarceration was his alleged leaking to the New York Times of confidential documents from his former girlfriend and Alameda Research CEO, Caroline Ellison – who, like many FTX’s executives, has flipped on him and is cooperating with the government.

The prosecution analyzed the data from his phone and email, and learned he “sent over 100 emails to members of the media, had over 1,000 phone calls with members of the media, and had over 100 phone calls with one of the authors of the Article, many of them lasting for approximately 20 minutes.”

Prosecutors also reject the idea that he was simply manifesting his first amendment rights when talking to the press.

“It was also apparent that in this instance he did so not by asserting his innocence, directing the reporter to information in the public record, or making other fair comment, but instead by funneling Ellison’s diary entries that were not public but were in the defendant’s possession to the New York Times, intending to portray a key cooperator testifying against him in a poor and inculpatory light, without attaching his name to the Article as a source.

The defense argues that detaining Bankman-Fried based on his communications with a reporter raises serious First Amendment concerns. New York Magazine reported:

“In a hearing before Judge Kaplan last week, Bankman-Fried’s attorneys claimed he was expressing his First Amendment rights by speaking with the Times.”

Prosecutors were unmoved by this argument.

“The defendant’s argument that the defendant did nothing other than exercise his First Amendment rights is a red herring. Witness tampering is not constitutionally protected speech.

[…] The strategy for rehabilitating his reputation was built on discrediting and blaming Caroline Ellison in a national and international publication, that is read by many prospective jurors in this district, it crossed a line toward improperly influencing those prospective jurors and intimidating a witness and sending a message to other prospective witnesses.”

It is not known what other documents SBF may have leaked to what other news outlets.

So the Government moved for him to be detained “based on the defendant’s pattern of witness tampering and evading his bail conditions”, saying that his communications with the media “were intended to affect the public’s—including prospective jurors’—impression of the defendant’s guilt.”

Prosecutors argue that since ‘no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community’, SBF must be detained pending trial.

Yahoo Finance reported:

“In an 18-page letter to Judge Lewis A. Kaplan, Sam Bankman-Fried’s defense counsel, argued against the U.S. government’s recent motion to revoke his bail.

The Defense called the arguments ‘extremely thin’ and ‘relying heavily on assumptions, unsupported inferences, and innuendo’.”

The scary reality that the disgraced billionaire financier may be remanded to the tough MDC is also fueling the defense strategy.

“Other arguments included in the defense counsel’s letter were that the Metropolitan Detention Center would hinder his defense efforts as inmates do not have internet access and it is ‘currently in a staffing crisis’.”

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