On October 1, 2013, the Grand Jury for the District of Maryland indicted Ross William Ulbricht, a/k/a “Dread Pirate Roberts,” owner and creator of a website called “Silk Road” on three felony counts.  Earlier, on September 27th, 2013, a criminal complaint was filed in the Southern District of New York (SDNY) against Mr. Ulbricht alleging separate, but closely related, criminal violations arising from the operation of Silk Road.  Of notable difference between the SDNY complaint and the Maryland indictment is the substantive charges for the alleged murder-for-hire plot involving an undercover agent.

Count One of the indictment charges Mr. Ulbricht with an alleged conspiracy to distribute a controlled substance, in violation of 21 U.S.C. 846.  This conspiracy arises from the activities of an under cover agent (UC) who posed as a large-scale supplier of illicit drugs and newcomer on Silk Road.  The UC allegedly complained to Mr. Ulbricht that he could not find anyone on Silk Road willing to purchase large enough quantities of drugs to make the experience worthwhile for him.  Then, Mr. Ulbricht allegedly set out to assist the UC in finding a suitable buyer on Silk Road by tasking his assistant to help the UC.  The assistant ended up finding a buyer for the UC, thereby allegedly guaranteeing Mr. Ulricht his cut of the transaction on Silk Road.

But for the atypical setting of the alleged offense [in a secretive, online black marketplace] Mr. Ulbricht is implicated in a relatively standard and straightforward conspiracy.  To prove that a conspiracy existed, the Government must prove that two or more persons agreed to commit an offense against the United States, that the defendant intended to enter into the agreement and have the object criminal offense come to pass, and that one of the co-conspirators committed an overt act in furtherance of the offense.  Proof of an overt act is required because it corroborates conspiratorial intent.  Simple agreements to commit an offense are insufficient to prove a conspiracy.

Count Two charges that Mr. Ulbricht allegedly wanted his assistant killed because he had been arrested by law enforcement and would eventually serve as a witness against him, in violation of 18 U.S.C 1512(a)(1)(C).  Due to that assistant’s tenure as an administrator on Silk Road, Mr. Albricht allegedly feared that the assistant could provide sensitive and useful information to law enforcement authorities about Silk Road.  Mr. Ulbricht also thought the assistant had been stealing from Silk Road users. Therefore, Mr. Ulbricht first purportedly contacted the UC to have the assistant tortured to return the money he had stolen.  Had Mr. Ulbricht stopped there, the offense would have carried a 20 year maximum.  However, as alleged in the indictment, Mr. Ulbricht followed up his initial communications with the UC and requested that the assistant be killed for $80,000.  This enhanced instruction subjects Mr. Ulbricht to the enhanced statutory maximum of 30 years imprisonment.

Obviously, the UC did not carry out the murder-for-hire plot.  Thus, Mr. Ulbricht is being charged with an attempt.  A course of conduct generally constitutes an attempt if a person purposefully does something under the circumstances as he believes them to be, is an act constituting a substantial step in a course of conduct planned to culminate in the commission of the crime.  Had Mr. Ulbricht stopped at merely communicating with the UC the conduct would probably not have constituted a substantial step towards the murder of a witness.  However, the indictment alleges that Mr. Ulbricht sent the initial $40,000 payment to the UC to consummate the agreement.  That payment, if truly sent by or under the direction of Mr. Ulbricht, would likely constitute a substantial step.  However the payment originated from Australia.  Evidence of whether Mr. Ulbricht controlled the funds is only circumstantial.

Count Three charges the same conduct as Count Two but under a separate criminal statute, specifically that Mr. Ulbricht allegedly used a facility in interstate commerce with the intent that murder be committed, in violation of 18 U.S.C. 1958(a).  A facility of interstate commerce includes means of transportation and communication.  In this case, such means would include the use of interstate and foreign bank wires and internet communications.

This post is authored by Ferrari & Associates, P.C., a law firm specializing in federal criminal defense matters. Feel free to contact us at (202) 280-6370 or info@ferrariassociatespc.com.

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