FTX founder and onetime CEO Sam Bankman-Fried will stand trial in just under two weeks to defend himself against allegations he deliberately committed fraud and conspired to defraud crypto investors and customers in FTX and Alameda Research.
The estimated six-week trial itself is scheduled to kick off on Oct. 3, 2023, a mere 10 months after Bankman-Fried was first arrested and not even 11 months after FTX collapsed.
To better understand the trial process, CoinDesk spoke to several legal experts, some of whom asked for anonymity to discuss a high-profile case.
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Jury selection
Though the trial is scheduled to begin next month, there’s still some time before the actual arguments are made. The first step, which may occur as soon as next week, is a final pretrial conference where Southern District of New York Judge Lewis Kaplan will lay out what a final witness schedule may look like, how long the trial date may be and rule on any final outstanding motions. Judge Kaplan may also entertain a few motions after the jury is selected, said Martin Auerbach, an attorney at law firm Withersworldwide.
The second step is voir dire, which is what will actually begin on Oct. 3.
The jury selection process will see the judge ask potential jurors a number of questions. He will likely start broad, asking if any potential jurors have travel planned within the next few weeks or might otherwise be unable to disappear from their jobs for weeks, one of the legal experts – an attorney with experience in white collar litigation – told CoinDesk.
He will also likely ask if any of the potential jurors had an FTX account, and dismiss those individuals immediately, they said. Once these broad jury questions are completed, the judge will start asking individuals questions like those proposed by the prosecution and defense teams.
“What will take a long time is the defense and prosecution will likely fight over each juror,” they said. “It’s not going to be a yes [or] no, it’s going to be a back and forth, so I think it will take days.”
And while lawyers may be able to question potential jurors at the state court level, this is federal court, so only the judge will ask questions, Auerbach said.
Some potential jurors may be dismissed if they can demonstrate financial hardship or similar issues. Others may be dismissed through a peremptory challenge, where an attorney can just strike a limited number of potential jurors for any reason.
Other potential jurors may exhibit clear bias against Bankman-Fried as the defendant or the government, and may be struck without counting against a peremptory strike quota.
This process is generally speedy. Given how high-profile Bankman-Fried’s case is, the process could take days just to seat 10 or 12 jurors, though the DOJ estimated in a filing on Sept. 19 that it would only take “the better part of a day.”
There will also be a few alternate jurors, who may be excused at the end unless one of the original jurors has to drop out of the case, Auerbach said.
Both the prosecution and defense have filed proposed questions for the judge to ask each potential juror in a bid to weed out anyone who might be heavily biased or otherwise unsuitable to sit on the jury, suggesting Judge Kaplan ask these individuals if they’re familiar with the case, if they have any opinions on the case or if they know (or know about) Bankman-Fried or the attorneys involved.
Bankman-Fried’s team also proposed a number of questions around effective altruism, political donations and lobbying and ADHD. The DOJ objected to these questions, arguing they seemed intended to prime jurors about his proposed defense.
Reasonable doubt
Once the trial itself begins, jurors, reporters and members of the general public in the gallery will see the DOJ and defense make their opening statements, followed by the DOJ presenting evidence and questioning witnesses. Pretrial filings from the DOJ suggest that in addition to written documents, prosecutors will present audio recordings during the trial.
Through this, there will be cross-examination of witnesses.
Who the DOJ calls as its first witness may help signal the strength of its case, at least in the eyes of prosecutors, one of the experts told CoinDesk. The DOJ may call an FBI agent as its first witness, or it might “go big” and call members of the FTX inner circle immediately.
Both parties have also sought to present certain expert witnesses to describe details such as FTX’s code and even to explain crypto basics, though there is an ongoing dispute over whether some or all of these potential witnesses should be allowed to testify.
The DOJ must prove guilt ”beyond a reasonable doubt”, given that this is a criminal trial. By contrast, in a civil case, there is a lower, “preponderance of evidence” standard.
“Beyond a reasonable doubt, there’s no specific percentage but you can think of that as 90+%,” one of the legal experts told CoinDesk. “You have a deep and abiding conviction in the guilt of the defendant.”
The assistant U.S. attorneys trying the case will likely demonstrate each element of each of the charges and illustrate what evidence they have that would support a conviction for each charge, they said.
“They’re tracking each piece of testimony, each document to make sure that they’ve got enough in the record to withstand,” they said. “[Bankman-Fried] will inevitably argue – because every defendant argues after trial – [that] they fell short on this element or another.”
Once the prosecution rests, the defense will have its own opportunity to present additional witnesses. One outstanding question is whether or not Bankman-Fried himself will testify in his own defense.
An increasing number of defendants in white collar cases have been waiving their Fifth Amendment rights and testifying, one of the individuals told CoinDesk, pointing to Theranos founder Elizabeth Holmes (who was convicted last year and sentenced to over 11 years in prison) as an example.
“The thinking now goes that juries are so celebrity-conscious that even if they didn’t know who [the defendant was at] trial, they’re almost all probably going on Twitter and going online, to research them during the trial,” the individual said. “The judge will tell them not to do that … [but] because you have this celebrity culture that emerged around these cases, the thought is if they don’t testify, essentially, the presumption will be they didn’t simply because they just didn’t want to admit [their crimes].”
This concern about a tainted jury pool has already popped up during some of the pretrial hearings. Bankman-Fried’s defense team argued that over a million negative articles have been written about the FTX founder, which created a media narrative around him.
Unanimous verdict
A federal criminal trial requires a unanimous verdict for a conviction. If there is a 12-person jury, all 12 must believe Bankman-Fried is guilty at the end of the trial –that he is guilty beyond a reasonable doubt.
The defense’s job may be as (relatively) simple as convincing just one juror that there is insufficient evidence or that prosecutors did not make their case on the different charges.
Auerbach said the judge will read out a set of instructions, explaining how they should evaluate what they heard and saw. Both the DOJ and Bankman-Fried’s team have proposed their own sets of jury instructions.
“[It’s] a piece of paper that lays out the legal elements that they have to find beyond a reasonable doubt to convict, and which if they don’t find beyond a reasonable doubt, they have to acquit,” he said. “If they can’t agree upon themselves, they hang on that particular [count].”
The jury can ask questions, though usually those are reserved for the deliberation period. Jurors can send written questions to the judge, who would read them out in court and work with the various attorneys to provide answers.
“I have to believe in a case this complicated, you’re going to have one or more jury questions,” one of the legal experts said.
The other one told CoinDesk another complicating factor is that much of the conduct at the heart of the allegations isn’t really in question. What prosecutors will have to do is convince jurors that Bankman-Fried’s actions met the provisions of the statutes he’s being charged under.
One example is extraterritoriality. Neither wire fraud nor anti-fraud rules under securities law provisions would apply “against a defendant who largely acted outside the U.S.” In other words, prosecutors would have to prove that Bankman-Fried’s actions not only met the definition of wire fraud, but also that he targeted U.S. citizens or otherwise was acting in the U.S.
Bankman-Fried lived in the Bahamas, where FTX’s global entity was headquartered.
If the jury is split, the judge has certain tools he can use to tell deadlocked jurors to “go back and try again,” the other individual told CoinDesk.
“It’s not like if in the first round of voting, one juror says ‘I’m not convinced,’ that’s it,” they said. “They’re going to be told to go back and keep trying to get to a unanimous verdict.”
If the jury comes back after several attempts at agreeing to a verdict and say they have an irreconcilable conflict on all counts, the judge may declare a mistrial, Auerbach said. Otherwise, the jury may agree to a conviction on all or some counts, or an acquittal on all or some counts.
Sentencing
Should Bankman-Fried be convicted on one or more of the charges he faces, how much time he’ll spend in prison will depend in large part on Judge Kaplan.
While sentencing guidelines used to be mandatory a few decades back, they’re now, following a Supreme Court ruling, seen more as a starting point than strict rules, one of the individuals told CoinDesk.
There are still statutory requirements, which the judge would be required to stay within, but those are distinct from the guidelines.
The U.S. Probation and Pretrial Services System would first create a report which would include “an initial calculation of the recommended sentencing range,” the individual said. The DOJ and defense teams could then make any objections they have, advocating for longer or shorter sentences.
Judge Kaplan would then look at the various recommendations and – taking into account a number of other factors like the seriousness of the offenses – hand down the actual sentence.
Oftentimes, in cases where there are multiple convictions on similar charges, the judge may choose to distill the charges down to the “core wrongful conduct.”
Given the way the case has played out so far, it’s also likely that if Bankman-Fried is convicted, his team will appeal. The DOJ cannot appeal a verdict of “not guilty” due to “double jeopardy” rules, the other individual said. “The government doesn’t get to appeal in all but the most rare circumstances. … Once you’ve been released by a jury, you’re essentially released on those same charges for life.”
Either way, this isn’t Bankman-Fried’s final criminal trial. Early next year, he will face an additional set of DOJ charges brought after the initial indictment.
Logistics notes
Judge Lewis Kaplan has signed off on the DOJ’s request to treat Friday, Oct. 6 as a trial date. Monday, Oct. 9 is Columbus Day (or Indigenous Peoples’ Day), and therefore a holiday.
