Ross Ulbricht Alleges Government Hacked Silk Road in New Challenge

​The defense team for Ross Ulbricht launched a motion on Saturday to grant a new trial for the convicted mastermind behind online drug market Silk Road, in part due to new evidence surrounding the government's allegedly dubious methods of finding the site's servers.

In a letter filed to Judge Katherine Forrest, defense attorney Joshua Dratel alleged the government failed to promptly provide exculpatory evidence to the defense, thus denying Ulbricht his Fifth Amendment right to due process and a fair trial. Dratel also requested an on-the-record statement from Andreas Antonopoulos, the defense's Bitcoin expert whose testimony was precluded during the trial, and reopened an earlier motion regarding privacy violations surrounding the government's discovery of the Silk Road server.

According to Braden Perry, a former federal enforcement attorney with expertise in virtual currency, this kind of motion is not unexpected and likely serves to provide grounds for an appeal, which Dratel already promised just minutes after the verdict was read.

"It seems relatively complicated, but in the end it's pretty simple: It's unlikely the judge will grant a new trial but this is what's necessary to grant an appeal and put forth all the aspects [Ulbricht] plans on appealing," Perry said.

The prosecution claimed the Silk Road server was identified through a misconfiguration of the site's CAPTCHA, a program that distinguishes humans accessing a site from bots, but others have argued it was hacked, which would constitute an illegal search and thus violate Ulbricht's Fourth Amendment rights. Ulbricht previously passed up the opportunity to challenge the issue, refusing to claim ownership of the server, but Dratel has reintroduced it in the motion filed Saturday.

In the memo, Dratel detailed the supposed violations of the Brady Rule, named for Brady v. Maryland (1963), which requires prosecutors to turn over exculpatory evidence to the defense in a timely manner.

"The number of new Government Exhibits nearly doubled in volume after trial started, with many of those new exhibits provided to the defense only minutes or hours before court began session, or before they would be introduced by the government through a particular witness," the letter said.

One of those government exhibits included a text exchange between an informant and Department of Homeland Security special agent Jared Der-Yeghiayan, who testified in the case. Dratel said the messages "demonstrate unequivocally that the government was conducting warrantless TOR network surveillance on a TOR exit node," the filing said.

Dratel claims since the exhibits were turned over to the defense only days before the trial, he could not adequately address them. He also said in the filing that Antonopoulos was an indispensable expert witness and implied his inability to testify affected the outcome of the case.

Carrie Goldberg, a lawyer who specializes in internet privacy rights, said it is very unlikely the motion will be granted, noting the judge also denied all five of Dratel's calls for mistrial during the course of the case.

"Given that Ulbricht's attorneys seek this relief from the very same judge who denied the earlier motions, denied their multiple calls of mistrial during the trial and convicted Ulbricht, the likelihood of her overruling herself is extremely unlikely," she said. "Judges don't like to overrule themselves. It's more likely that this motion was filed pro forma, a solicitation of the government's opposition, and ultimately will lay the groundwork for an appeal."

If Dratel does file the appeal, as he said he plans to in a press conference after the verdict was read, he will have to file it before May 15, when Ulbricht is scheduled to be sentenced. Ulbricht faces up to life in prison after being convicted on all seven counts stemming from the creation and operation of Silk Road.