On July 9 Judge Katherine Forrest, presiding judge, denied all of Ross Ulbricht’s motions to dismiss his case, concluding that the government’s indictment was sufficient to bring the case to trial.

However, this was NOT a judgment on Ulbricht’s guilt or innocence, despite implications from much of the media. Rather, the judge wants the charges addressed in court. There they must be proven to a jury, beyond a reasonable doubt. This is a far more demanding standard than an indictment.

The judge, unlike many journalists, has not tried and convicted Ulbricht yet, and does not assume his guilt without evidence.  In fact, (revolutionary concept) she considers him innocent until proven guilty!  And unlike much of the media she even uses the word alleged to describe an unconvicted man.

The judge emphasizes this, repeating: “Again, on a motion to dismiss an indictment, the Court accepts as true the Government’s allegations; whether and how those allegations can be proven is not a question for this stage in the proceedings.” In other words, the alleged criminal activity is only nominally attributed to Ulbricht for the sake of argument. She is not saying she thinks he is guilty.

Naturally, Judge Forrest’s opinion was disappointing. However Joshua Dratel, Ross’ lawyer, said that a dismissal of a federal case on pre-trial motions, especially a high-profile one, is always a long shot.

Despite failing to put a brake on the government’s ability to charge internet hosting activity as a crime, the opinion does accomplish certain things, according to Dratel.

It:

  • Defines the case more narrowly;
  • Acknowledges the novelty and importance of many of the issues involved;
  • Identifies several important issues that will be critical at trial;
  • Has the government commit itself to certain theories;
  • Presents significant factual hurdles for the government to prove, such as:
    •   

    • how a conspiracy is defined and formed;
    • the temporal aspects of a conspiracy;
    • the nature of relationships among supposed co-conspirators.

The judge repeatedly states that the government will have to prove its case in court. For example, from the opinion:

  • “The case depends on proof of conspiracy… when, how, and with whom.”
  • If the Government can prove at trial that Ulbricht has the requisite intent…”
  • “Whether this issue has any special significance can only be determined at trial.”
  • “Questions as to how the Government will prove its case as to the buyer’s intent are reserved for trial.”

Finally, it was erroneously stated in some media coverage that unless he pleas, Ulbricht now must go to trial. Yet more motions are coming soon. The next ones will address cutting edge, Fourth Amendment issues and build on recent Supreme Court opinions that recognize the evolving understanding of privacy in the digital age. The way our system works, the judge has the power to dismiss a case based on motions. This is an integral part of our justice system, despite what some journalists say.