No Harm, No Foul? SBF petitions US Supreme Court over fraud conviction and forfeiture

Sam Bankman-Fried has filed a petition for a writ of certiorari with the United States Supreme Court, seeking review of his 2023 conviction on seven counts of wire fraud, conspiracy and money laundering arising from the collapse of FTX, together with the US$11.02 billion forfeiture order that accompanied his 25-year sentence. The petition was filed on 10 September 2026 by Stanford law professor Jeffrey Fisher, and follows a Second Circuit Court of Appeals ruling in June that upheld both the conviction and the trial judge's evidentiary rulings, with a formal mandate issued in August leaving the conviction intact.

The no-loss argument

The petition's first question presented concerns evidence excluded at trial. Bankman-Fried's lawyers argue that Judge Lewis Kaplan permitted prosecutors to introduce evidence that FTX customers suffered financial losses, while barring the defence from showing that FTX and Alameda Research held assets sufficient to repay customers and investors in full.

Fisher framed the objection as follows in the petition:

Where the government pursues a theory of fraud under which it doesn't matter whether any victims lost money, introducing evidence suggesting that people actually lost money is distracting and prejudicial. All the more so where the truth is the victims did not lose money, and the defendant is unable to make that clear.

The argument has some factual footing: FTX's bankruptcy estate has been repaying creditors in full, with interest, and made a fifth distribution of approximately US$900 million in July 2026, taking total recoveries toward US$10 billion. It is extremely rare in insolvencies for creditors to receive their original loss back, but there are many former FTX customers who feel their real loss is in the lost value of their crypto which went up after the FTX collapse. To them, the return of the value of their account on the collapse date, even with interest, is a consolation prize at best.

Kousisis and the "no economic harm" doctrine

Those customers were likely pleased when the Second Circuit panel rejected SBF's argument by applying Kousisis v United States, a unanimous 2025 Supreme Court decision holding that a defendant who induces a victim to enter a transaction under materially false pretences can be convicted of wire fraud even without proof that the victim suffered economic loss. On the appellate panel's reading, if loss is not an element of the offence, evidence that no loss ultimately occurred is not something the defence is entitled to put before a jury. Bankman-Fried's petition asks the Supreme Court to clarify whether that reasoning extends so far as to exclude such evidence altogether, particularly where the prosecution emphasized the harm and loss to victims.

An excessive fine?

The petition's second question is more straightforward: whether the fine of US$11.02 billion in forfeiture, calculated by reference to the scale of the collapse rather than the loss actually suffered by any customers, violates the Eighth Amendment's prohibition on excessive fines. Forfeiture orders of this size are extremely unusual, and a ruling on the point would be one of the first to test the boundary of the excessive fines doctrine against a forfeiture. The forfeiture order has been subrogated to creditor claims, so the US government in effect collects any funds left over in the FTX bankruptcy after all the creditors and shareholders are paid out (noting any money due to SBF as shareholder goes to the forfeiture order). Even if successful, SBF would face a substantial forfeiture order and would not profit from the collapse.

Long odds, exhausted alternatives

The Supreme Court grants only a small fraction of the petitions it receives each term, and nothing before it obliges the Court to take up this appeal. The petition also arrives after other avenues have closed. Bankman-Fried sought a pardon from President Trump in June 2026, and the following month the Senate passed a resolution, unanimously, opposing any grant of clemency to him. Certiorari is, at this point, the last formal avenue of relief available. If this is rejected, SBF will be left to continue serving his prison sentence.

While many view this as a case of a convicted fraudster trying to reduce his penalty, there is an important legal questions as to whether restitution or repayment after the fact should bear on either liability or penalty. Proceeds of crime law laws generally allow a court some discretion to have regard to compensation already made, a contrast with the more categorical position the Second Circuit has taken here. With Polymarket showing a 2% market for SBF being released in 2026, the popular consensus is not on SBF's side.