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  • J Huang and S Pettigrove

SBF files to dismiss charges

Lawyers for Sam Bankman-Fried, founder of the failed cryptocurrency exchange FTX, have filed a number of pre-trial motions seeking to dismiss the charges brought against him by the United States Department of Justice (the DOJ).

Commonly known as SBF, Bankman-Fried was arrested in December 2022 on eight criminal charges initiated by the DOJ. SBF later agreed to be extradited from the Bahamas - where he resided - to the US. The number of charges was subsequently increased to 13, which now include wire, securities and bank fraud charges, conspiracy to operate a unlicensed money transmitting business, money laundering, campaign finance violations and foreign bribery.

All charges are tied to SBF's conduct as the former CEO of FTX, which collapsed dramatically last November and filled for Chapter 11 bankruptcy in the United States along with 101 affiliate companies. The Bahamian and Australian entities of FTX are subject to separate insolvency proceedings.

In March, the US bankruptcy advisors revealed that USD$2.2 billion was paid to SBF through various entities prior to the collapse. This week, the US Internal Revenue Service slapped a USD$44 billion tax bill against the FTX US debtors.

SBF's lawyer characterized the case against him as a "classic rush to judgment" and cited the lack of detailed factual particulars in the original charges. Through his attorneys, SBF is also seeking to compel additional discovery from the Chapter 11 bankruptcy administrators on the basis that they are acting as a de facto member of the "prosecution team". A further pre-trial motion states:

The FTX Debtors and their outside counsel continue to make extraordinary efforts to help the prosecution that go far beyond mere cooperation with a criminal investigation.

Mark Cohen, SBF's lead attorney previously foreshadowed the first motion by telling the court that his client "is not acknowledging he can be tried" on the charges that were added after SBF's extradition from the Bahamas.

In a memorandum of law supporting that motion, SBF's attorneys said he only agreed to the extradition based on a list of charges at that time. The memorandum also notes that the Bahamas government had not consented to extradition on the campaign finance charges. SBF's lawyers say that this violates the rule of specialty at international law by which a person can only be tried of offences to which consent for extradition was given.

SBF's lawyers rely on expert legal evidence regarding the terms of the extradition treaty between the Bahamas and the US which require the Bahamas to "consent" to the charges brought after the extradition. That consent has not been forthcoming to date despite inquiries from the DOJ to the Bahamian authorities.

SBF's lawyers have also raised various technical arguments in pursuit of motions to dismiss the original fraud and other charges for failing to properly state an offence.

SBF is currently set to go to trial from 2 October, 2023.


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