Mea culpa – Silk Road prosecutors respond to SSBD story

Yesterday I posted Silk Road moderator Peter N’s story. It gained a lot of attention from supporters and haters alike. It also got noticed by someone else. And I’m no longer sure which category they belong in.

n

I was surprised to receive not only a comment on the blog, but also a personal email from the Chief Public Information Officer, United States Attorney’s Office, SDNY. It seems they had taken umbrage at the line:

It must have been disappointing for the prosecution who asked for an extra 10-12 years to add to the 18 months he’s already spent inside.

It may have been my unnecessarily bitchy reporting of those numbers that got up the Chief Public Information Officer, United States Attorney’s Office, SDNY’s nose so much that they took the time to write personally. I was quite wrong, they assured me:

“The government was not seeking a sentence of “an extra 10-12 years to add to the 18 months he’s already spent inside.” That’s what the federal sentencing guidelines called for. The prosecution specifically asked for the judge to impose a below-guidelines sentence.”

So I went and checked where I got that number that the government was most certainly not seeking and realised that, lazy journo that I am, I swiped it from the AAP newswire, as run in all the mainstream news reports. It said:

“US prosecutors have asked a judge to sentence an Australian prison counsellor to a maximum 12.5 years’ jail for his role in the massive global drug-trafficking website Silk Road.. .

They have asked for a sentence of between 10 and 12.5 years, while [SSBD]’s lawyer argues he should be given a time-served sentence for the 18 months he has been held in Australian and US jails.”

So to atone for being such a crap fact-checker I asked the Chief Public Information Officer, United States Attorney’s Office, SDNY for a copy of the prosecution’s sentencing report (I had a copy of the defence’s report, but not theirs), which they sent me promptly. And to my astonishment the prosecution had not requested 10-12. In fact, their sentencing memo was extraordinarily nice to Peter.

C. Government’s Sentencing Recommendation

As set forth above, the Guidelines calculation set forth in the PSR is correct. In accordance with that calculation, Nash faces a Guidelines range of 121-151 months. This sentencing range reflects the extremely serious nature of the conspiracy in which Nash participated. That conspiracy resulted in the distribution of approximately $200 million worth of illegal drugs to well over 100,000 buyers across the world – with predictably harmful (and in some cases even deadly) consequences, as the PSR makes clear. (PSR ¶¶ 56-73). The conspiracy leveraged the Internet to enable drug dealers to vastly expand their territorial reach, while at the same time helping them to evade detection by law enforcement. Similarly, the conspiracy utilized a sophisticated digital payment system to facilitate the laundering of hundreds of millions of dollars in criminal proceeds. In light of these aggravating factors, the Guidelines appropriately call for a stiff sentence reflecting the seriousness of the offense and the need for general deterrence.

Nonetheless, the Government believes that a below-Guidelines sentence is warranted as to the specific defendant at bar. Nash played a relatively minor role in the operation of Silk Road – obviously far less significant than the central role played by Ulbricht, but even less significant than the roles of the site administrators who are Nash’s co-defendants in this case. Nash played a role somewhere between a “steerer” – insofar as he helped users navigate their way to finding drugs on Silk Road – and a lookout – insofar as he kept the boss (Ulbricht) apprised of things he should know. But Nash was not directly involved in facilitating or mediating specific drug transactions, as were the site administrators. Also unlike the site administrators, Nash did not have administrative access to users’ accounts on the Silk Road marketplace, which users needed to buy or sell drugs through Silk Road. (Users’ accounts on the Silk Road discussion forum were separate). Thus, while Nash’s role on Silk Road was not unimportant, its connection to the actual drug trafficking taking place on the site was significantly attenuated, compared to the conduct of his co-conspirators.

There are other mitigating factors to consider in sentencing Nash. Most significantly, Nash’s criminal conduct in this case appears to be an aberration. Aside from periods of personal drug use, there is no indication that Nash has previously been involved in drug trafficking or that he is likely to return to such criminal activity in the future. To the contrary, Nash’s lengthy and impressive employment history shows that he has spent most of his working life contributing generously to society, as a social worker focused on helping populations with physical and intellectual disabilities. Moreover, Nash’s successful completion of a drug abuse treatment program and multiple other rehabilitative courses during his imprisonment in this case evidences a commitment to avoiding future drug use and rebuilding a productive life upon release. It also appears that Nash has a well-developed support network to help him achieve these goals.

Accordingly, given Nash’s unique circumstances – both in terms of his low-level role and his mitigating personal factors – the Government believes that a below-Guidelines sentence is appropriate.

CONCLUSION

For the reasons set forth above, the Government respectfully submits that a substantial prison sentence, but one below the Guidelines range, is sufficient in this case to achieve the objectives of sentencing.

So the Chief Public Information Officer, United States Attorney’s Office, SDNY wasn’t fibbing. The charges he faced carried what would normally be a mandatory sentencing range of 10 years to life. The lower end of the spectrum should have carried a sentence of 10-12 years. But that’s not what they asked for.

I asked Peter about it.

“I have to say I am still dumb struck by yesterdays proceedings,” he replied.  “They could have gone hard on me and they didn’t say a word and for that I am eternally grateful to them. I don’t know what happened or why they decided to go easy on me on the day but there you go. And yes he is right the govt did ask for a below the guidelines but “substantial” sentence. The govt NEVER recommends a below the guidelines sentence for anyone so again I am extremely grateful to them for that”.

Somewhat repentant, I wrote back and asked the Chief Public Information Officer, United States Attorney’s Office, SDNY for clarification on what a “substantial prison sentence” meant in terms of numbers (years, months) and whether they had similarly written to all the mainstream outlets to correct their numbers.

The Chief Public Information Officer, United States Attorney’s Office, SDNY obliging replied:

There is no technical definition of what a substantial prison term means. It’s up to the judge. It can include prior jail time already served in the case, such as the approximately 18 months served by Nash. We are attempting to correct the news service accounts.

It seems that sanity in this particular case has prevailed. It will be interesting to see if it has any effect on the extradition proceedings for Gary Davis, the Irishman accused of being Libertas. Though for many it is not enough. One comment on yesterday’s blog put it simply:

I don’t think the Americans had any fucking business whatsoever prosecuting him in the first place

Ross Ulbricht is due to be sentenced this Friday. He faces a minimum of 20 years and a maximum of his natural life.

Silk Road: the shocking true story of the world’s most notorious online drugs market, is available as an e-book at Amazon, in paperback at Australian/NZ bookstores, or see the sidebar for more purchasing options.