For federal prosecutors, Sam Bankman-Fried could be the gift that keeps on giving.
After the November collapse of FTX, the cryptocurrency
exchange he founded in 2019, Bankman-Fried unexpectedly gave a series of
interviews intended to present his version of events. He was indicted in
December and charged with perpetrating one of the biggest frauds in US history
— and he's still talking, either in person or on the internet.
The atypical chattiness for a criminal defendant is likely
causing Bankman-Fried's attorneys to scratch their heads, or worse. Prosecutors
can use any statements, tweets, or other communications against him at his
trial, which is scheduled for October.
“Prosecutors love when defendants shoot their mouths off,”
said Daniel R. Alonso, a former federal prosecutor who is now a white-collar
criminal defense attorney. If Bankman-Fried's public comments before trial can
be proven false during the trial, it may undermine his credibility with a jury,
he said.
Bankman-Fried returned to Manhattan federal court on
Thursday for a hearing into whether his bail package will be altered to prevent
witness tampering. Prosecutors say he sent an encrypted message over the Signal
texting app on January 15 to the general counsel of FTX US, a likely witness
for the government.
Lawyers were scheduled to submit more information to Judge
Lewis A. Kaplan by Monday before he makes a decision about the bail package.
Bankman-Fried has been confined with electronic monitoring to his parents' home
in Palo Alto, California, since December.
Before its collapse, FTX was the world's second-largest
crypto exchange, and Bankman-Fried, 30, was its CEO and a billionaire several
times over, at least on paper. Celebrities and politicians alike vouched for
FTX and its founder, and Bankman-Fried was considered a leading figure in the
crypto world.
However, the broad collapse of cryptocurrencies last year
caused severe financial stress for numerous companies in the crypto universe,
from lenders to exchanges to firms focused on investing in digital assets. FTX
sought bankruptcy protection in November after customers pulled out their money
in the crypto equivalent of a bank run.
Federal prosecutors have said Bankman-Fried devised “a
scheme and artifice to defraud” FTX's customers and investors right from FTX's
inception. They say he illegally diverted their money to cover expenses, debts,
and risky trades at Alameda Research, the crypto hedge fund he started in 2017,
and to make lavish real estate purchases and large political donations.
In interviews and Twitter posts, Bankman-Fried has said he
never intended to defraud anyone. He's maintained that running FTX took up all
his time and that he was unaware of the financial problems at the hedge fund
until it was too late.
Those assertions are likely to be refuted by one of the
government's key witnesses. Caroline Ellison, the former CEO of Alameda, has
agreed to plead guilty to her role in FTX's collapse and to testify against
Bankman-Fried. In a plea hearing in December, Ellison said she knew FTX had
used billions in customer funds to make loans to Alameda and agreed with Bankman-Fried
and others to take steps to conceal the nature of the loans.
Gary Wang, who co-founded FTX with Bankman-Fried, also
struck a deal for cooperation. At his own plea hearing, Wang said that he made
changes to computer code to enable FTX customer funds to be transferred to
Alameda.
Another claim made often by Bankman-Fried is that he's
trying to help recover funds for FTX customers, but that FTX's new management
has cut him off and has taken steps, including filing for bankruptcy
protection, that could inhibit customers from getting their money back.
For instance, Bankman-Fried says that when FTX collapsed,
outside parties had made funding offers totaling billions of dollars, and if
given a few weeks the company could have raised enough money “to make customers
substantially whole.” Instead, it was “strong-armed” into filing for bankruptcy
protection by its main law firm, Sullivan & Cromwell, a claim the firm
denies.
Bankman-Fried has also frequently taken issue with decisions
made by FTX's new CEO, John Ray. Bankman-Fried has often claimed that FTX's US
operation, which was considerably smaller than the international operations,
was solvent at the time of the bankruptcy filing, a contention that Ray
disputes.
“I'm still waiting for him to finally admit that FTX US is
solvent and give customers their money back,” Bankman-Fried tweeted on January
19.
Bankman-Fried was scheduled to testify under oath in front
of Congress in December with Ray, but that appearance was cancelled because of
his arrest in the Bahamas, where FTX is based.
“The real risk Bankman-Fried runs in making public comments
‘explaining' what happened is they could be seen as continuing efforts to
mislead investors by regulators and prosecutors,” said Jeff Linehan, a former
prosecutor in the financial crimes division of the New York State Attorney
General's Office. Linehan is now a criminal defense attorney.
Bankman-Fried's comments at the time of FTX's collapse could
also come back to haunt him. On November 7, as customers furiously demanded
their money back, he tweeted “FTX is fine. Assets are fine.” He deleted the
tweet the next day. On November 11, FTX filed Chapter 11.
Through a spokesman, Bankman-Fried decline to comment for
this article.
Some defendants will go through their entire legal ordeal
without saying anything that isn't first cleared by their attorneys. Even
putting defendants on the witness stand at trial has long been seen by defense
attorneys as a last-resort option because it opens them up to interrogation by
prosecutors and often does more harm than good.
“As the prosecution prepares their case, it's really
important to figure out what the defense's strategy could be, and a defense
wants to keep that strategy under wraps as much as possible,” said Alonso, the
former federal prosecutor.
Bankman-Fried faces the possibility of decades in prison if
convicted on all counts. Even if he were to agree to a plea bargain, a judge
would have full discretion on what sentence to impose. If the judge does not
believe Bankman-Fried is truly sorry for his actions, based partly on his
public statements, he could ignore the prosecution's recommendations and
imposing a stricter sentence, legal experts say.
Before FTX collapsed, Bankman-Fried had built up a gigantic
public persona. He spoke often to reporters, testified in front of Congress,
and appeared at conferences to advocate for cryptocurrencies and his firm. He
gave millions of dollars to political candidates and advocated for charitable causes
such as food issues in the Bahamas. It could be difficult to give up that sort
of public influence.
“Some people simply can't help themselves,” Alonso said.
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