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Memorandum on the motion to dismiss the indictment against alleged Silk Road owner Ross Ulbricht

Memorandum on the motion to dismiss the indictment against alleged Silk Road owner Ross Ulbricht

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Published by FrancisBerkman
Memorandum on the motion to dismiss the indictment against alleged Silk Road owner Ross Ulbricht
Memorandum on the motion to dismiss the indictment against alleged Silk Road owner Ross Ulbricht

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Published by: FrancisBerkman on Apr 01, 2014
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06/13/2014

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------XUNITED STATES OF AMERICA:14 Cr. 68 (KBF)- against - :(Electronically Filed)
 
ROSS ULBRICHT, : Defendant. :------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT
 
ROSS ULBRICHT’S PRE-TRIAL MOTIONS CHALLENGING THE FACE OF THE INDICTMENT
JOSHUA L. DRATELJOSHUA L. DRATEL, P.C.29 Broadway, Suite 1412 New York, New York 10006(212) 732-0707
 Attorneys for Defendant Ross Ulbricht 
 – Of Counsel – Joshua L. DratelLindsay A. LewisWhitney Schlimbach
Case 1:14-cr-00068-KBF Document 21 Filed 03/29/14 Page 1 of 64
 
TABLE OF CONTENTSTable of Contents...............................................................iTable of Authorities............................................................ivINTRODUCTION..............................................................1STATEMENT OF FACTS.......................................................3ARGUMENTPOINT ICOUNTS ONE, TWO, AND THREE SHOULD BEDISMISSED BECAUSE THE CONDUCT CHARGED THEREIN AGAINST MR. ULBRICHT DOES NOT STATE AN OFFENSE UNDER THE ENUMERATEDSTATUTES AND BECAUSE EVEN IF THE CONDUCT DID STATE AN OFFENSE, THOSE STATUTES WOULD BEUNCONSTITUTIONALLY VAGUE AS APPLIED IN THIS CASE......................6A.
The Applicable Law Regarding Challenges to the Sufficiency of an Indictment 
.........7B.
The Statutes Cited In Counts One, Two, and Three Do Not Cover the Conduct Alleged Against Mr. Ulbricht 
..........................91.
Count One: The Controlled Substances Trafficking Conspiracy
..............92.
Count Two: The Continuing Criminal Enterprise
........................13a.
Count Two Fails to Allege Sufficiently That Mr. Ulbricht Occupied a “Position of Organizer, a Supervisory Position, and a Position of Management” Necessary to a CCE Violation
........14 b.
Count Two Fails to Enumerate the Requisite Predicate Series of Violations Necessary to a Violation of 21 U.S.C. §848
.............173.
Count Three: The Computer Hacking Conspiracy
........................21C.
Two Fundamental Rules of Statutory Construction Further Establish That the Conduct  Alleged In Counts One, Two, and Three Is Not Covered By the Statutes
.............24i
Case 1:14-cr-00068-KBF Document 21 Filed 03/29/14 Page 2 of 64
 
1.
The Rule of Lenity Requires a Narrow Reading of the Statutes At Issue
........242.
The Doctrine of Constitutional Avoidance Also Restricts the Scope of the Statutes At Issue In Counts One, Two, and Three
...............26D.
The Civil Immunity Afforded Internet Providers By 47 U.S.C. §230 Manifests a PolicyThat Would Be Seriously Undermined By Allowing the Statutes In Counts One, Two, and Three to Be Applied to the Conduct Alleged Against Mr. Ulbricht 
..................28E.
 If the Statutes At Issue In Counts One, Two, and Three Are Deemed to Cover the Conduct Alleged Therein Against Mr. Ulbricht, They Are Unconstitutionally Vague As Applied to Him In This Case
................321.
The Principles of the “Void for Vagueness” Doctrine
.....................322.
The Overbreadth Doctrine
...........................................353.
 If the Statutes At Issue Herein Cover Mr. Ulbricht’s Alleged Conduct, They Are Unconstitutional As Applied to Him In This Case
.........38POINT IICOUNT THREE SHOULD BE DISMISSED BECAUSETHE CRITICAL STATUTORY TERM “ACCESS WITHOUT AUTHORIZATION” IN §1030(a)(2)(C) IS UNDEFINED, AND THEREFORE UNCONSTITUTIONALLY VAGUE AS APPLIED TO MR. ULBRICHT IN THIS CASE...........................39POINT IIICOUNT FOUR SHOULD BE DISMISSED BECAUSE ITFAILS TO ALLEGE SUFFICIENTLY THE ESSENTIAL ELEMENT OF A “FINANCIAL TRANSACTION[],” WHICH MUST INVOLVE EITHER “FUNDS” OR A “MONETARY INSTRUMENT[],” NEITHER OF WHICHINCLUDES BITCOIN WITHIN §1956'S DEFINITIONS..............................43A.
The Relevant Provisions of the  Money Laundering Statute, 18 U.S.C. §1956 
............................44B.
The Money Laundering Allegations In Count Four of the Indictment 
..........45C.
 Bitcoin and the Features of Digital Currencies
...........................45ii
Case 1:14-cr-00068-KBF Document 21 Filed 03/29/14 Page 3 of 64

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