The United States Attorney’s Office has filed an affirmation of the denial of bail to former FTX CEO Sam Bankman-Fried, claiming that he could attempt witness tampering, and stating that no release conditions would assure the safety of the witnesses. Prosecutors responded to several claims made in his appeal against the bail revocation, calling it “meritless.”
The prosecutors in their response argued that SBF was found to have twice committed/attempted witness tampering in violation of the court orders. Thus, in light of the continued evasions of his pre-trial release conditions, Bankman-Fried was unlikely to abide by the conditions of release.
The first time SBF attempted to contact witnesses came to light in January earlier this year when the former FTX CEO initiated contact with the then-General Counsel of FTX US, who is also a potential trial witness represented by counsel.
The second such instance came in July 2023, when a New York Times report published private journal messages of Caroline Ellison, the former CEO of Alameda and SBF’s associate. SBF’s counsel confirmed that the journal was leaked by the former FTX CEO himself. The prosecutors reached out to the District Court to highlight how SBF had covertly provided private and potentially embarrassing writings of Ellison to discredit her and potentially influence the perception of the jury in the case when it goes to trial.
On July 26 during a court conference, prosecutors appealed to revoke SBF’s bail plea based on his violations of the bail conditions and attempts to influence witnesses. Federal judge Lewis Kaplan from the District Court for the Southern District of New York, revoked SBF’s bail on Aug. 11 after he was found to have contacted witnesses in an attempt to influence or intimidate them. The former FTX CEO had been out on bail on a $250 million bond since December 2022.
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On Aug. 28, SBF lawyers appealed against the revocation of the bail ruling and claimed that the former FTX CEO was well within his right to talk to the press about Caroline Ellison as it was protected under the First Amendment. However, prosecutors argued that Judge Kaplan took SBF’s First Amendment rights into consideration in the ruling. The judge in the ruling had noted that “the law is that once communication is undertaken as part of or with the intent to intimidate or influence a witness, it’s a crime, and the First Amendment has nothing to do with it.”
The prosecutors made two key arguments against the SBF appeal:
The District Court did not clearly err in finding probable cause to believe Bankman-Fried twice committed attempted witness tampering while on pretrial release.
Judge Kaplan did not clearly err in finding probable cause that Bankman-Fried attempted to tamper with Witness 1
The prosecutors also argued that the defendants didn’t argue or dispute against the ruling in SBF’s attempt to witness former FTX US counsel which the judge found a clear attempt of witness tampering.
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