Silk Road prosecution: how does the US criminal justice system actually work?

Popehat's Ken White (a former federal prosecutor) uses the arrest of alleged Silk Road founder Ross "Dread Pirate Roberts" Ulbricht to explain how the criminal justice system works, including the difference between a grand jury indictment and a criminal charge, and how to understand sentencing guidelines and "maximum possible sentences." It's a great way to use current events to deepen your understanding of important, complicated systems.

If you enjoy that, you should also check out Ed Felten's post that contrasts the Silk Road story with the shut down of Lavabit to explore how crypto does — and doesn't — change the criminal justice system.

Both the New York complaint and the Maryland indictment claim that Ulbricht ran Silk Road as a market for illegal drugs and collected a fee for transactions. The Maryland indictment claims that Ulbricht used Silk Road to arrange a cocaine transaction between an undercover agent and a seller. The New York complaint says that undercover agents have made more than 100 purchases of illegal drugs through Silk Road.

The Maryland indictment also asserts that Ulbricht paid an undercover agent to kill a former Silk Road employee who had stolen from Ulbricht and was cooperating with federal authorities after an arrest. The agent staged a death picture and sent it to Ulbricht. The New York complaint doesn't charge Ulbricht with murder for hire, but does detail a long correspondence in which Ulbricht allegedly tried to hire a killer to murder a Canadian extortionist. There's no indication that the murder occurred or that the murderer was an undercover, so it may have been a scam by the purported murderer. The presence of the murder scheme in the New York complaint is entirely gratuitous to support holding Ulbricht without bail and make him look menacing, even though it may actually signify that a purported criminal mastermind was duped by fake murderers in two separate countries. Federal criminal justice is like that.

The indictment is short and colorful; the complaint is long but has much more factual detail. The indictment is fairly typical and adequately written. The complaint has much detail, but is subject to criticism. An affidavit of probable cause is supposed to provide facts showing probable cause that the defendant committed the charged crimes. Part of an adequate affidavit of probable cause is attribution — stating how the federal agent swearing out the affidavit knows the facts stated in the affidavit. If the affidavit doesn't say how the witness knows the facts, it doesn't support probable cause. This is the difference between saying "the defendant robbed First National Bank" and saying "I spoke to Teller Tessie of First National Bank, who told me that the defendant, whom she recognizes from past transactions, pointed a gun at her and demanded the money in her teller drawer." This affidavit isn't as bad as, say, the Zimmerman affidavit, but it's pretty bad — it relies on generic "based on my knowledge" and "based on my familiarity" and "based on an analysis" statements rather than more specific statements.

Most of the complaint reflects fairly straightforward federal investigative work, though the efforts to tie Ross Ulbricht to "Dread Pirate Roberts" of Silk Road, starting at paragraph 33, are quite interesting.

The Silk Road To Federal Prosecution: The Charges Against Ross Ulbricht
[Ken White/Popehat]

(via Charlie Stross)