Ross Ulbricht’s Supreme Court Petition

On December 22, 2017, Ross and his legal team at Williams & Connolly, led by Kannon Shanmugam, filed a Petition for Writ of Certiorari [PDF] to the Supreme Court, asking the Court to review and reconsider the lower court’s decision, based on constitutional violations in the investigation and at sentencing.

The petition argued that Ross’s case presents two important questions of constitutional law, and has broad significance impacting both Fourth and Sixth Amendment protections:

  • Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.
  • Whether the Sixth Amendment permits judges, rather than juries, to use uncharged crimes to support an otherwise unreasonable sentence.

On February 5, 2018, 21 organizations from across the political spectrum filed five amicus briefs in support of the Supreme Court petition.

Key documents [PDF]

Full list of amici who supported Ross’s Supreme Court petition:

  • American Black Cross
  • American Conservative Union Foundation Center for Criminal Justice Reform
  • Cato Institute
  • Competitive Enterprise Institute
  • Conservative Legal Defense and Education Fund
  • Downsize DC Foundation
  • DownsizeDC.org
  • Drug Policy Alliance
  • FreedomWorks
  • Gun Owners Foundation
  • Gun Owners of America
  • Human Rights Defense Center
  • Judge Nancy Gertner
  • Law Enforcement Action Partnership
  • National Coalition to Protect Civil Freedoms
  • National Lawyers Guild
  • Partnership for Civil Justice Fund
  • People’s Law Office
  • Reason Foundation
  • R Street Institute
  • Restoring Liberty Action Committee National
After holding the petition, presumably pending another important Fourth Amendment case, Carpenter v. U.S., the Supreme Court eventually declined to hear Ross’s case on June 28, 2018.

This denial was a blow to internet privacy and fair trials. By declining to hear Ross’s case, the Supreme Court continues to permit the government to secretly track our internet browsing history and activity with no warrant, oversight or probable cause.

Highlights from the Petition and Amicus Briefs

“A young first-time offender who was never charged with causing any death or bodily injury… A high-profile criminal prosecution that heaped intense scrutiny and pressure on the sentencing judge, resulting in a sentence of life imprisonment without parole for a first-time offender.”
– Excerpt from Petition for Writ of Certiorari.[1]

“In this case, without a warrant or probable cause, the government seized petitioner’s private Internet traffic information and used that information to arrest and convict him of drug trafficking and related offenses. The district court then sentenced petitioner to life imprisonment without the possibility of parole—a sentence almost unheard of for a first-time offender charged with the offenses at issue. The district court imposed that sentence by resolving several disputed issues of fact; absent those judge found facts, petitioner’s sentence would have been unreasonable.”
– Excerpt from Petition for Writ of Certiorari.[2]

Fourth Amendment Violations

“The question here is this: Is it reasonable to say that the ordinary citizen “assumes the risk” that their Internet browsing activity will be monitored by the government with a pen/trap device every time they log on to the Internet? The answer is plainly ‘No.'”
– Excerpt from amicus brief by Reason Foundation, CATO Institute, Competitive Entreprise Institute, and R Street Institute.[4]

“A search or seizure of an American’s Internet Traffic Information intrudes on private digital equivalents of papers and effects, reveals extensive information about Internet usage, and should be fully protected by the Fourth Amendment.”
– Excerpt from amicus brief by Downsize DC and five other signers.[5]

More info at Assault On Privacy.

Sixth Amendment Violations

“Petitioner’s sentence was based on judicial fact-finding that the defendant commissioned murders, even though he was never charged with any form of homicide or planning homicide and there were no relevant jury findings.
– Excerpt from amicus brief by National Lawyers Guild and seven other signers.[6]

“Given petitioner’s youth and absence of criminal history, the life sentence is particularly shocking. Absent the judicially found facts in this case, petitioner’s sentence would have been reversible error.”
– Excerpt from amicus brief by Drug Policy Alliance and Law Enforcement Action Partnership.[8]

“The government only charged petitioner with drug-related offenses at trial, yet after the jury was discharged the government sought to convince the judge that petitioner distributed a total quantity of drugs far in excess of the amount found by the jury, that he could be held responsible for six alleged overdose deaths, and that he committed other uncharged misconduct. The district court accepted the government’s claims—despite serious factual disputes over the reliability of that evidence—and imposed a sentence that would have been substantively unreasonable based on the facts found by the jury.”
– Excerpt from amicus brief by Drug Policy Alliance and Law Enforcement Action Partnership.[7]

“Given the nature and complexity of those issues—allegations including overdose deaths and drug quantities—it is far from clear that petitioner should be held responsible…He has the right to have a jury of his peers decide.”
– Excerpt from amicus brief by Drug Policy Alliance and Law Enforcement Action Partnership.[9]

“The prosecutor was allowed to game the system by avoiding charging the deaths claimed, yet then using those claimed crimes at sentencing as though they had been facts found by a jury…However, the district court certainly sentenced Ulbricht as though he had caused those deaths.”
– Excerpt from amicus brief by Downsize DC Foundation and five other signers.[10]

More info at Sentenced for Uncharged Allegations.

References

  • ▲[1] – Supreme Court petition (page 31)
  • ▲[2] – Supreme Court petition (page 3)
  • ▲[4] – Amicus brief from Reason Foundation, CATO Institute, Competitive Entreprise Institute, and R Street Institute (page 10)
  • ▲[5] – Amicus brief from Downsize DC Foundation, Conservative Legal Defense and Education Fund, Gun Owners Foundation, Gun Owners of America, Inc., and Restoring Liberty Action Committee (page 4)
  • ▲[6] – Amicus brief from National Lawyers Guild, American Conservative Union Foundation, FreedomWorks, Human Rights Defense Center, Federal Judge Nancy Gertner, Coalition for Civil Freedoms, Partnership for Civil Justice Fund, and People’s Law Office (page 2)
  • ▲[7] – Amicus brief from Drug Policy Alliance and Law Enforcement Action Partnership (page 3)
  • ▲[8] – Amicus brief from Drug Policy Alliance and Law Enforcement Action Partnership (page 4)
  • ▲[9] – Amicus brief from Drug Policy Alliance and Law Enforcement Action Partnership (page 4)
  • ▲[10] – Amicus brief from Downsize DC Foundation, Conservative Legal Defense and Education Fund, Gun Owners Foundation, Gun Owners of America, Inc., and Restoring Liberty Action Committee (page 23)