As others have observed, it’s been taboo to publicly speculate on SBF’s innocence since long before his conviction, including—or perhaps especially—in EA spaces. So please excuse the pseudonym, but...
I think this sentence is a tragedy. This isn’t the place to get into my general issues with the United States incarceration system, but even putting that to one side, I believe there’s much more to this story than meets the eye and it would be nice to see more EAs seriously grappling with the arguments in his defense.
I think people who have followed this unusually closely should be encouraged to argue for what they think is right if they have a strong take, but I just don’t think this theory is likely. An innocent person would be more likely to talk more freely about things/be less evasive and they’d probably have a better explanation of how it is that they could have missed an 8 billion hole in the bank. It’s suspicious if you need to make the same move (“he could’ve not seen this” or “he could have not looked closely at that”) multiple times to preserve the chance of innocence. Every time you use a not-too-likely excuse like this, your hypothesis takes a hit.
I don’t have a strong view on the sentence length. I think the main reason for a low sentence length (compared to the guidelines for the counts he was convicted of) is that I do believe SBF was strongly altruistically motivated, which is unusual for cases like that. I think the main reason for a long(-ish) sentence length is perjury and evasiveness.
Pleading not guilty is not perjury. For starters, it isn’t a claim of innocence, merely a demand that the prosecutors put up or shut up. Second, perjury has a specific definition, which includes that a material, false statement was made under a legally valid oath or its equivalent.
SBF testified under oath in his own defense at trial. He was not obliged to testify, and the jury could not draw a negative inference from his decision not to. In fact, most US defendants do not testify.
If he made a material, false statement with knowledge of its falsity under oath at trial, then he committed perjury. Testifying under oath that you “don’t remember X” when you know you actually do is perjury (assuming that X is material, a rather low bar to meet).
Example (quoting the Government’s sentencing memo):
Bankman-Fried’s minimization and false explanations concerning such conduct was pervasive during his testimony. As one example, he claimed that he first learned that Alameda had a roughly $8 billion fiat liability to FTX in October 2022. (Tr. 2523-24). That was a lie, as is evidenced by the testimony of Yedidia, Ellison, Wang, and Singh, all of whom testified that they discussed Alameda’s fiat liability to FTX with Bankman-Fried months earlier. (Tr. 167, 173-74, 436-37, 439-40, 619-20, 769-71, 1346, 1348, 1359; GX-50). The documentary evidence also proved that Bankman-Fried was not telling the truth during his testimony. Government Exhibit 50, for example, a June 2022 spreadsheet which was viewed by the defendant, showed a roughly $11 billion fiat liability owed by Alameda to FTX. (GX-50).
I agree that some of his behavior was just unproblematic “being very literal about answers.”
But the thing I mean by evasiveness was more stuff like:
Not remembering important things
Not giving answers that substantially clarified what happened
Saying “I don’t know which piece of evidence you’re referring to?” when he was several times asked simple questions on whether he did or didn’t do something. Note that this is the opposite of taking questions too literally; instead, it’s being deliberately obtuse to mask his refusal to ever disclose information that the prosecution didn’t already present, which is a central example of “being evasive.”
Regarding perjury, a lawyer (I believe it was an FTX lawyer?) testified that SBF asked him what excuses he could use to explain that the money is gone, then the lawyer suggested some pontential avenues but was like “they won’t work because it’s not actually legal/doesn’t hold up with the details” (paraphrased), and SBF nodded at that, but then used these excuses anyway talking to the media?! And then when asked about what he had said in the media, he didn’t take it back, which at that point constitutes perjury.
I agree that some of his behavior was just unproblematic “being very literal about answers.”
You have my respect for acknowledging that; it’s very rare that anyone does.
Not remembering important things
I really think people should cut him a lot more slack for this. On November 11th, new FTX management said in a public announcement that, “Sam Bankman-Fried has resigned his role as Chief Executive Officer and will remain to assist in an orderly transition”, while behind the scenes they were reporting him to authorities[1]. So he probably didn’t expect that he was about to be permanently shut off from access to internal company data to the greatest extent that new management could manage and therefore he may not have been secretly exporting all the relevant data to his personal storage as may have been prudent. (In fact, he’d been busy turning off autodelete “on any place I found it”.) It’s very hard to remember exactly how things played out when in the middle of a crisis you’re suddenly shut off from almost all the relevant data and it’s now a year or so later.
He also gave dozens of interviews. A very literal person, when asked, “Did you say xyz on this date?” is not going to think, “I expect they’re quoting me...but sometimes they’re just paraphrasing me in a misleading way...and obviously I don’t actually remember...but it’s going to look really bad if I say I don’t remember and then they put a tweet from me on the screen saying it...so I better say yes.”
He was also living off bread and peanut butter in one of the worst jails in the country with limited access to the internet, discovery material and his ADHD meds, he’d just gone through a year of the globe turning on him with the final nail in the coffin being his former girlfriend testifying extensively against him right in front of him, and, I expect, he was doing what he could on the stand to mask autistic mannerisms so that he wouldn’t come across so unlikeable and shady. This can’t have helped his ability to recall things.
Not giving answers that substantially clarified what happened Saying “I don’t know which piece of evidence you’re referring to?” when he was several times asked simple questions on whether he did or didn’t do something.
Note that this is the opposite of taking questions too literally; instead, it’s being deliberately obtuse to mask his refusal to ever disclose information that the prosecution didn’t already present, which is a central example of “being evasive.”
I’d be interested to hear examples (genuinely). I can’t think of times when it seemed like this is what was happening, rather than him just “being autistic” (or not actually remembering, see above). In that link in my last comment it says, for example, “In their article Autism in the Criminal Justice System, Judge Kimberly Taylor and other experts urge criminal justice professionals to ‘[u]understand the need to repeat and rephrase questions” and note that “difficulty in maintaining eye contact or insistence on changing the subject of conversation to a topic of their choice—all typical diagnostic behaviors of a person with autism—can mislead an investigator, attorney, or judge.” Judy Mark—a UCLA Disability Studies faculty member who has an autistic son...acknowledges “answers that seem non-responsive’ and ‘times when [autistic individuals] might repeat themselves or become obsessed on an issue, something we call perseveration. They might become particularly focused on minute details that others find irrelevant, something we call hyperfocus.’”
Regarding perjury, a lawyer (I believe it was an FTX lawyer?) testified that SBF asked him what excuses he could use to explain that the money is gone, then the lawyer suggested some pontential avenues but was like “they won’t work because it’s not actually legal/doesn’t hold up with the details” (paraphrased), and SBF nodded at that, but then used these excuses anyway talking to the media?! And then when asked about what he had said in the media, he didn’t take it back, which at that point constitutes perjury.
Yes, an FTX lawyer[2]. Again, I’d be interested to hear more details. It sounds to me like they didn’t realize the nature of the mistake they’d made until the weeks leading up to the run on the exchange and I expect they thought that, given their ignorance at the time, they had not committed fraud. But I also expect that now they were facing a liquidity crisis—and didn’t think anyone would believe them that it was an accident—they were keen to know if it would have been fraud even if they had known exactly what they were doing. I can’t think of a time he lied in the media on the basis of this (or, ever).
In fact, Nishad appears to slip up at one point on this: “However, not all elements of the prosecution narrative line up neatly. Singh said he left the crucial June meeting still thinking things were OK and did not realise customer funds were being raided until September” (Financial Times).
I’m getting almost all of this from the first website I linked to, by the way.
“On November 9, 2022 . . . S&C attorneys in our Criminal Defense & Investigations Group, in consultation with Mr. Miller, reported the concern to federal authorities, including the United States Attorney’s Office for the Southern District of New York [USAO], the Securities and Exchange Commission and the Commodity Futures Trading Commission.” (from this paper)
I don’t want to spend too much time on this so won’t answer to all points, but I wanted to point you to some examples for this bit about evasiveness by saying things like, “I don’t know what this is referring to”:
I’d be interested to hear examples (genuinely)
See the transcript here: the word “referring” occurs 30 times and at least a couple of those times strike me as the weasel-like suspicious behavior of someone whose approach to answering questions is “never admit to anything unless you learn that they already have the evidence.” So, he always answers first with “not sure/don’t know what you refer to/don’t remember” and only admits to things when shown evidence.
This behavior is strikingly abnormal and different from how a person who doesn’t have anything to hide would behave.
(Edit – and again, it seems to me like it’s different from autistic literal-mindedness! Literally answering the question would mean to comb your memory and answer without regard for what the prosecution is referring to. It would also include saying confidently “no” if you’re sure you never said something.)
Someone trustworthy would answer questions immediately, sometimes admitting to things that the prosecution may not already know.
Some examples:
Q. You also marketed FTX as a safe crypto exchange compared to your competitors, didn’t you?
A. With FTX US I think that may be the case. I am not sure about FTX International.
Q. Did you or did you not market FTX International as safe compared to other crypto exchanges?
A. I don’t specifically remember that. I am not sure.
MS. SASSOON: If we could pull up Government Exhibit 900
A. The government offers Government Exhibit 900
THE COURT: Hearing no objection, it’s received. (Government Exhibit 900A received in evidence)
MR. COHEN: I thought it was in already.
THE COURT: No harm, no foul.
MS. SASSOON: I believe the full video is in. This is just a screenshot. Mr. Bianco, if you could publish that, please. We can go ahead and take that down.
Q. You publicly described FTX as the most regulated crypto MBAN3 exchange by far, didn’t you?
A. I think that’s right.
Q. And you also acted like you cared about customer protections, right?
A. I think I did care about them, yes.
Q. And you made public statements to that effect, didn’t you?
A. I probably did.
Q. I didn’t hear you.
A. I probably did.
Q. Yes or no, do you recall making statements that you cared about customer protections?
A. Yes.
Q. In fact, over and over again in public forums you described FTX platform as safe, correct?
A. I am not sure specifically what that is referring to. I may have.
Q. Yes or no, do you recall making numerous public statements to the effect that the FTX platform was safe?
A. I recall with respect to FTX US. It may be true with respect to FTX International, but I don’t specifically recall, no.
Q. You were CEO of FTX International, yes?
A. Yes.
Q. Sitting here today, you cannot recall one way or the other whether you made public statements that FTX was a safe MBAN3 platform? 1
A. I am not sure exactly what you are referring to. I made a lot of public statements.
Q. Yes or no, do you recall making public statements that FTX was a safe platform?
A. I can’t think of a specific one off the top of my head.
Q. Generally, do you recall in substance making statements that FTX was a safe platform?
MR. COHEN: Objection.
THE COURT: Overruled.
A. Some things that were sort of like that, yes. I am not sure exactly what you are referring to. But I am not saying —
THE COURT: Mr. Bankman-Fried, the issue is not what she is referring to. Please answer the question.
Q. Putting aside what I’m referring to, I’m asking whether you recall making statements as CEO of FTX that in substance stated that the FTX platform was safe.
A. I remember things around specific parts of the FTX platform that were related to that. I don’t remember a general statement to that effect. I am not sure there wasn’t one.
Q. In media interviews isn’t it true that you insisted on that FTX had protections for retail customers?
A. Yup.
Q. You told your customers that users’ funds and safety come MBAN3 first, didn’t you?
A. Something to that effect, yes. 2
Q. And you also made statements that you would always allow withdrawals, didn’t you?
A. Yup.
MS. SASSOON: If we could pull up what’s marked as Government Exhibit 829. The government offers Government Exhibit 829.
MR. COHEN: No objection.
THE COURT: Received. (Government Exhibit 829 received in evidence)
MS. SASSOON: Mr. Bianco, can you publish that.
Q. Mr. Bankman-Fried, can you read the first line of your tweet from August 9, 2021.
A. Sure. And, as always, our users’ funds and safety come first.
Q. Beneath that do you see where it says, we will always allow withdrawals except in cases of suspected money laundering/theft/etc.?
A. Yup.
MS. SASSOON: We can take that down.
[...]
Q. You also claimed that FTX had a conservative approach to managing risk, didn’t you?
A. OnóóI’m not sure exactly what that was referring to.
Q. You don’t recall saying that?
A. I don’t remember the context.
Q. Do you recall saying that in any context?
A. I’m not confident.
[...]
Q. So is it your testimony that as CEO of FTX, after this catastrophic event, you did not learn the details of the code change that you directed?
A. That’s correct. I trusted Gary and Nishad.
Q. You testified on direct that FTX had an AWS database, correct?
A. Yup.
Q. And you described its content, right? For example, it stored customer account information?
A. Yup, that’s right.
Q. And it had information about trades?
A. Yup.
Q. And customer balances?
A. Yup.
Q. And as CEO, you had access to the database, correct?
A. Nope.
Q. Your testimony is that you did not have the ability to access the database?
A. I never did. To my knowledge, I didn’t have access to it.
Q. I’m asking you whether you had authorization to search the database.
A. I have no idea whether someone had created an account in my name that in theory was designed for me. If so, I never used it.
Q. And so it’s your testimony that until October 2022, you never looked in the database.
A. That’s correct. And even as of then, I never looked in the AWS database.
Q. After FTX declared bankruptcy, isn’t it true that one of the first things you did was try to restore your administrative access to the AWS database?
A. That’s not how I would put it.
Q. Isn’t it true that in the weeks following the bankruptcy, you asked to have your access to the AWS database restored?
A. NotóóI was not specifically looking for my personal access to the AWS database.
Q. Isn’t it true you were requesting AWS access?
A. I was requesting it on behalf of the joint provisional liquidators in the Bahamas.
Q. So yes or no: You made requests to restore access to the AWS database?
A. I’m not sure exactly what you’re referring to here.
THE COURT: Look, could you just answer the question instead of trying to ask the questioner what she’s referring to? THE WITNESS: Okay.
A. No.
Q. Isn’t it true that you made to-do lists after FTX’s 4 collapse that included things like “try to get AWS access”?
A. Probably.
Q. And so isn’t it true that you were trying to get AWS access after FTX declared bankruptcy?
A. Yes.
To me, the focus on “What this is referring to” is illuminating because it shows how SBF is laser-focused on what the prosecution has on him. What’s strikingly absent is a desire to try hard at remembering so he can tell as much of the truth as possible.
Thanks for going to the trouble of sourcing these quotes.
To me, the focus on “What this is referring to” is illuminating because it shows how SBF is laser-focused on what the prosecution has on him. What’s strikingly absent is a desire to try hard at remembering so he can tell as much of the truth as possible.
I mean, in the “practice” cross-examination, I think he was frequently rebuked for guessing at what the prosecutor meant or sharing information beyond a short, binary, direct answer to the question the prosecutor (thought she) was asking. For example, “A. And by “go negative,” you’re talking about negative in a particular coin or negative net asset value? Q. Just have a negative balance, Mr. Bankman-Fried. A. Sorry. I— … THE COURT: … I’ve gotten beyond my tether here. … part of the problem is that the witness has what I’ll simply call an interesting way of responding to questions for the moment. Q. Mr. Bankman-Fried, in May of 2022, were you aware that account ID 9 @AlamedaResearch.com could have an overall negative value? A. I am giving you my best guess at answering the question. Q. I’m not asking for a guess. I’m asking what you understood at the time. A. I am going to answer what I think the question you are asking is, but I apologize if I’m answering the wrong question.” I think the precise question she intends to ask here is extremely important, but she won’t specify (or doesn’t understand that she needs to.) It’s a very complicated case and the details matter. If Alameda’s trading accounts collectively had a net liability of billions to FTX for an extended period with no uncorrelated collateral, then they “borrowed” billions here in the way ~everyone thinks they did. But if one subaccount was temporarily negative $3 billion in a particular coin while another subaccount was temporarily positive $4 billion in another coin and it’s mostly for market-making purposes, then the sense in which Alameda was “borrowing” $3 billion via its customer accounts is extremely different.
And then there are plenty of reports of how when SBF gave extra information that wasn’t asked for, that was surely “evading questions, trying to pour forth verbiage to distract Sassoon from what she’d asked.” (from here)
Perhaps we’re understanding the term “referring” differently—I hear it as “I don’t understand exactly what you’re asking me (and if I guess wrong you might make me look like a liar)” while you might be hearing it as “I don’t know which of the many pieces of supporting evidence have prompted you to ask this question and I don’t want to reveal more than you already know about.”
Taking the first example of “referring to” in your comment, we have:
Q. In fact, over and over again in public forums you described FTX platform as safe, correct?
A. I am not sure specifically what that is referring to. I may have.
I’m picturing his thought process as something like, “I think I used the word ‘safe’ multiple times in public forums in reference to FTX U.S. If that is what she’s referring to then my answer is ‘Probably.’ But maybe she’s referring to that tweet someone else wrote using the FTX Twitter account that said FTX International was safer than Binance. And I can’t think of any times I’ve actually described FTX International with the word ‘safe’ and I don’t think I would have said that, so what do I say? If I say ‘Yes’ then I’m giving the impression that I said something bad that I don’t think I said, but if I say ‘No’ then she might bring up that tweet and make me look like a liar.”
I think that’s how my mind would respond anyway, given the way other interactions had gone. For example, “Q. Now do you remember telling Zeke Faux in early 2022 that Alameda played by the same rules as other traders? A. Not in that wording, no. Q. So you don’t recall that. A. No. Q. Do you recall telling him that in other wording? A. I recall saying that Alameda wasn’t front running other customers, that its trading access was like other customers.” If SBF had given a straight “no”—because he did not in fact make the claim that the prosecutor is heavily implying he did—and then the prosecutor had shown the jury a quote from Faux paraphrasing SBF that was taken out of context, would that have been perjury? I would definitely have been wary of giving yes/no answers to imprecise or misleading questions.
It would also include saying confidently “no” if you’re sure you never said something.
Who is ever sure they never said something? I’m not sure why you and I disagree here. I feel like the “normal” way to answer questions about things you may or may not have said a year or so ago is to say “yes” when you’re >50% sure you said it and “no” otherwise. Or, perhaps when testifying in your own defense, to just say “yes” every time you get the sense the prosecutor is about to pull out some written record of you saying it, even when that’s technically lying because you don’t actually remember, because it’s not worth the risk. But I think literal-minded people will feel very uncomfortable having only those two options and would rather say “I don’t recall”, especially if in squeezing their 25% confidence into a “no” only to get proven otherwise would constitute perjury.
I don’t know which of the lines above are the 2+ suspicious ones, but none of them strike me as such.
He was also living off bread and peanut butter in one of the worst jails in the country with limited access to the internet, discovery material and his ADHD meds [ . . .]
I’d note that Judge Kaplan invited the defense to seek a delay in the trial date if it felt that SBF being remanded to jail prejudiced their ability to put on a defense. They did not do so (likely in an attempt to create a longshot appellate issue, in my opinion). He also had access to a lot of discovery material for many months before being remanded.
There’s also a bit of tension between SBF’s claim that he didn’t have access to information needed to prepare his defense, and that the government dumped too much information on his defense team (at least 7.7 million pages, if I read correctly). Now, I don’t know what was in the Brady material, but I’d want specifics before concluding that important information was unavailable to the defense.
That’s interesting. Do you know when that invitation was (I can’t find it)? If it was close to the trial date, fair enough. If it was at the point of being remanded, it looks like he ended up experiencing a lot of problems that weren’t particularly foreseeable.
I can fact check if you’re curious, but just going by memory for now:
In SBF’s “practice” testimony that the judge requested, someone made a comment about how very convenient it was that he wasn’t able to produce the document retention policy that he kept referring to in an effort to defend himself. He replied that he’d requested it from FTX many times.
There was at least one complaint in the run up to the trial that a huge amount of discovery material had been made available to the defense at such a late date, and SBF was having so many problems with Internet access, that this should hardly count as an opportunity to review the information.
There’s also a huge difference between “information the prosecution wants to use against the defendant” and “information the defendant wants to use to defend himself”. I think the basic situation was that SBF didn’t have a realistic opportunity to look at the former before the trial and that he never had access to the latter (except for information that was inextricably part of evidence that prosecutors had judged served their own ends more than SBF’s overall.) I don’t think there’s a tension between millions of pages being used against you and having minimal access to data that might exonerate you.
And when the defendant began complaining that his recent incarceration made trial preparation by that date more difficult for him, the Court offered to consider any request by the defendant for a substantial adjournment of the trial to give him more time in which to prepare. Tr., Aug. 30, 2023 [Dkt 249], at 20:9-21 :25. Yet defendant conspicuously failed to request any additional time.
(Docket order of Sept 12, 2024, citing transcript of August 30). He was remanded on August 11, so it was pretty soon after that. Moreover, any competent defense attorney would know that they could seek a trial delay on this basis; they did not have to wait for Judge Kaplan to broach the possibility himself.
The district court addressed the late production argument in the same order:
Moreover, the recently produced documents are text searchable indexed productions, the majority of which came from the defendant’s own Google accounts and therefore were accessible to the defendant long before the government received those ve1y same materials in a late production from Google. [ . . . .] Third, the premise of defendant’s position here is that he personally is entitled to review and consider every single piece of the discovery in this case, to generate unspecified work product in respect thereof, and so on. But the premise is incorrect. Defendant is represented by a substantial team of extremely able retained lawyers. He proposes to call at trial seven expert witnesses. And no represented defendant, much less a defendant detained pretrial in order to protect the public, has a constitutional or other right to inspect eve1y bit of discove1y. [. . . . .] Finally, as the Court suggested in remarks on August 30, 2023 (Tr., Aug. 30, 2023 [Dkt 249], at 20:20-21: 1), and as remains true today, the defendant has not made any detailed showing as to specific materials that he claims he has been unable to access personally and the reasons why any such personal inability actually would impede his defense. Generalities about millions of pages without connecting those dots simply is not persuasive. Defendant’s team of lawyers is able to provide defendant with any materials that he would like to review on hard drives at the MDC.
(typos in docket text).
“[I]nformation the prosecution wants to use against the defendant” isn’t an accurate characterization of the government’s Brady obligations—see the Wikipedia article linked earlier. “[P]art of evidence that prosecutors had judged served their own ends more than SBF’s overall” is pretty much the polar opposite of what Brady requires. And I think it is rather unlikely that USAO/SDNY would play games with Brady and thereby risk what they saw as a slam-dunk conviction, especially where the defendant was represented by well-bankrolled counsel and had at least some inside knowledge of what documents might be out there.
Also, none of this seems tied to the specific perjury findings the Government asked the district court to consider—that “Bankman-Fried falsely testified that he did not know about Alameda spending customer deposits, that he did not know until late 2022 that FTX’s code features were being improperly used to take customer money, and that he thought in November 2022 that his tweets were accurate and not misleading.” (p. 31-32 here).
Finally, as to evasiveness / hair splitting / dodging more generally, I’d note that Judge Kaplan has been on the bench for thirty years and has plenty of exposure to defendants who have been remanded, witnesses and defendants who may have conditions that affect their ability to give testimony, and those in extremely complex cases with voluminous discovery. I see no reason to believe he was incapable of factoring those things in to the extent relevant, or unwilling to do so, and trust his findings of fact more than SBF’s self-serving narrative unless given a good reason to depart from that.
Thank you—I misread you, I apologize, I thought you’d said the judge offered a trial delay. (Although it’s still somewhat interesting that Judge Kaplan reminded the defense that they could submit a request for a delay and he would consider it.)
Clearly the Court did not find this persuasive, but I still want to share some sense of the difficulties SBF was facing: at “the latest opportunity the defense had to observe whether the plan for access to the internet-enabled laptop would work as promised,” due to a number of factors, SBF “spent an entire day getting access to a single document. That is one day he could not spend working at the MDC or conferring with his lawyers.” (from here). Perhaps Bradyonly requires that access is given to SBF’s lawyers (who were not all “well-bankrolled” by the way—Mills at least worked pro bono), but I still think these kind of things are worth mentioning in discussions of the extent to which SBF’s testimony was evasiveness vs. genuinely not recalling.
Also, even if “the recently produced documents” were mostly “from the defendant’s own Google accounts,” he had at least 2.5 million pages in his Google accounts, so whether they were technically “accessible” is not really the point. (Assuming he did have access—SBF reported that FTX cut off his access to his personal LinkedIn account, for example.)
But I do think I veered into talking about how FTX would only provide data to the prosecution not the defense, when my original comment that started this thread was just the words “discovery material”, which may have confused things.
I see no reason to believe he was incapable of factoring those things in to the extent relevant, or unwilling to do so
I think Judge Kaplan’s apparent dislike of SBF has been widely reported and I assume we’ll have to agree to disagree on whether that biased any of his judgments in this case.
I think Judge Kaplan’s apparent dislike of SBF has been widely reported and I assume we’ll have to agree to disagree on whether that biased any of his judgments in this case.
Yeah, we’ll have to agree to disagree on that.
I don’t have videotape of Judge Kaplan, of course, but some behavior that may come across as “apparent dislike” could actually reflect sound courtroom management techniques. For instance, sternly lecturing an defendant who does things like use a VPN while on tight electronic lockdown is a restrained use of the district court’s power, authority, and responsibility to manage the proceedings before it. It can be an attempt to prod an errant defendant back in line without bringing out the heavier-handed powers (although Judge Kaplan did end up remanding SBF after the second tampering episode, on which he was affirmed by the Second Circuit).
To be perjury, false, material testimony must be under a legally valid oath or its equivalent. Lying to the media isn’t perjury; generally it is not a crime at all.
What I meant with by “he didn’t take it back” is a situation as follows:
The prosecution asks him if he made certain claims in the media. SBF says “yes” or “it appears that way” or whatever. The prosecution at some other point in the trial (maybe days earlier, maybe afterwards) asks some specific details about how FTX accounts were structured and how money was moved that contradicts what SBF said in the media. At some third point in the trial, they ask him if he deliberately lied to the media/gave false accounts about how things worked, and he said no. (Or, instead of asking him “did you tell the truth to the media?,” maybe they just asked him the same question the media asked him, and SBF stuck to his guns to avoid admitting that he mislead the media – similar outcome because he’s now saying the false thing in the trial setting.)
(I’m not actually sure this exact thing happened – it’s been a while since the trial. But I’d guess there were cases like that where you can look at different responses he gave to various questions and find that they’re in tension with things established by the prosecution from other witnesses. That’s probably also what the judge meant when he said that he found three instances of perjury? But I’m flagging that I haven’t looked at Kaplan’s elaborations on those three points. It’s more that I trust that Kaplan is likely to come to the right interpretations on those counts because when I followed the trial, it also felt to me like SBF was, at various points, getting trapped/caught in a web of questions, previous answers, and others’ testimony. In other words, I’m pretty sure I thought at various points “this is probably perjury established, if we believe this other witness?” – but I didn’t write those down, so I don’t remember the exact web of testimonies that would’ve conclusively trapped him.)
As others have observed, it’s been taboo to publicly speculate on SBF’s innocence since long before his conviction, including—or perhaps especially—in EA spaces. So please excuse the pseudonym, but...
I think this sentence is a tragedy. This isn’t the place to get into my general issues with the United States incarceration system, but even putting that to one side, I believe there’s much more to this story than meets the eye and it would be nice to see more EAs seriously grappling with the arguments in his defense.
I think people who have followed this unusually closely should be encouraged to argue for what they think is right if they have a strong take, but I just don’t think this theory is likely. An innocent person would be more likely to talk more freely about things/be less evasive and they’d probably have a better explanation of how it is that they could have missed an 8 billion hole in the bank. It’s suspicious if you need to make the same move (“he could’ve not seen this” or “he could have not looked closely at that”) multiple times to preserve the chance of innocence. Every time you use a not-too-likely excuse like this, your hypothesis takes a hit.
I don’t have a strong view on the sentence length. I think the main reason for a low sentence length (compared to the guidelines for the counts he was convicted of) is that I do believe SBF was strongly altruistically motivated, which is unusual for cases like that. I think the main reason for a long(-ish) sentence length is perjury and evasiveness.
A better explanation than what?
It wasn’t evasiveness, in my view.
Plus I’m not sure if the judge means much by “perjury” beyond “continues to plead not guilty” and this so-called evasiveness.
Pleading not guilty is not perjury. For starters, it isn’t a claim of innocence, merely a demand that the prosecutors put up or shut up. Second, perjury has a specific definition, which includes that a material, false statement was made under a legally valid oath or its equivalent.
SBF testified under oath in his own defense at trial. He was not obliged to testify, and the jury could not draw a negative inference from his decision not to. In fact, most US defendants do not testify.
If he made a material, false statement with knowledge of its falsity under oath at trial, then he committed perjury. Testifying under oath that you “don’t remember X” when you know you actually do is perjury (assuming that X is material, a rather low bar to meet).
Example (quoting the Government’s sentencing memo):
I agree that some of his behavior was just unproblematic “being very literal about answers.”
But the thing I mean by evasiveness was more stuff like:
Not remembering important things
Not giving answers that substantially clarified what happened
Saying “I don’t know which piece of evidence you’re referring to?” when he was several times asked simple questions on whether he did or didn’t do something. Note that this is the opposite of taking questions too literally; instead, it’s being deliberately obtuse to mask his refusal to ever disclose information that the prosecution didn’t already present, which is a central example of “being evasive.”
Regarding perjury, a lawyer (I believe it was an FTX lawyer?) testified that SBF asked him what excuses he could use to explain that the money is gone, then the lawyer suggested some pontential avenues but was like “they won’t work because it’s not actually legal/doesn’t hold up with the details” (paraphrased), and SBF nodded at that, but then used these excuses anyway talking to the media?! And then when asked about what he had said in the media, he didn’t take it back, which at that point constitutes perjury.
You have my respect for acknowledging that; it’s very rare that anyone does.
I really think people should cut him a lot more slack for this. On November 11th, new FTX management said in a public announcement that, “Sam Bankman-Fried has resigned his role as Chief Executive Officer and will remain to assist in an orderly transition”, while behind the scenes they were reporting him to authorities[1]. So he probably didn’t expect that he was about to be permanently shut off from access to internal company data to the greatest extent that new management could manage and therefore he may not have been secretly exporting all the relevant data to his personal storage as may have been prudent. (In fact, he’d been busy turning off autodelete “on any place I found it”.) It’s very hard to remember exactly how things played out when in the middle of a crisis you’re suddenly shut off from almost all the relevant data and it’s now a year or so later.
He also gave dozens of interviews. A very literal person, when asked, “Did you say xyz on this date?” is not going to think, “I expect they’re quoting me...but sometimes they’re just paraphrasing me in a misleading way...and obviously I don’t actually remember...but it’s going to look really bad if I say I don’t remember and then they put a tweet from me on the screen saying it...so I better say yes.”
He was also living off bread and peanut butter in one of the worst jails in the country with limited access to the internet, discovery material and his ADHD meds, he’d just gone through a year of the globe turning on him with the final nail in the coffin being his former girlfriend testifying extensively against him right in front of him, and, I expect, he was doing what he could on the stand to mask autistic mannerisms so that he wouldn’t come across so unlikeable and shady. This can’t have helped his ability to recall things.
I’d be interested to hear examples (genuinely). I can’t think of times when it seemed like this is what was happening, rather than him just “being autistic” (or not actually remembering, see above). In that link in my last comment it says, for example, “In their article Autism in the Criminal Justice System, Judge Kimberly Taylor and other experts urge criminal justice professionals to ‘[u]understand the need to repeat and rephrase questions” and note that “difficulty in maintaining eye contact or insistence on changing the subject of conversation to a topic of their choice—all typical diagnostic behaviors of a person with autism—can mislead an investigator, attorney, or judge.” Judy Mark—a UCLA Disability Studies faculty member who has an autistic son...acknowledges “answers that seem non-responsive’ and ‘times when [autistic individuals] might repeat themselves or become obsessed on an issue, something we call perseveration. They might become particularly focused on minute details that others find irrelevant, something we call hyperfocus.’”
Yes, an FTX lawyer[2]. Again, I’d be interested to hear more details. It sounds to me like they didn’t realize the nature of the mistake they’d made until the weeks leading up to the run on the exchange and I expect they thought that, given their ignorance at the time, they had not committed fraud. But I also expect that now they were facing a liquidity crisis—and didn’t think anyone would believe them that it was an accident—they were keen to know if it would have been fraud even if they had known exactly what they were doing. I can’t think of a time he lied in the media on the basis of this (or, ever).
In fact, Nishad appears to slip up at one point on this: “However, not all elements of the prosecution narrative line up neatly. Singh said he left the crucial June meeting still thinking things were OK and did not realise customer funds were being raided until September” (Financial Times).
I’m getting almost all of this from the first website I linked to, by the way.
“On November 9, 2022 . . . S&C attorneys in our Criminal Defense & Investigations Group, in consultation with Mr. Miller, reported the concern to federal authorities, including the United States Attorney’s Office for the Southern District of New York [USAO], the Securities and Exchange Commission and the Commodity Futures Trading Commission.” (from this paper)
Under an immunity grant. FTX lawyers were permitted to testify for the prosecution but not the defense, I believe.
I don’t want to spend too much time on this so won’t answer to all points, but I wanted to point you to some examples for this bit about evasiveness by saying things like, “I don’t know what this is referring to”:
See the transcript here: the word “referring” occurs 30 times and at least a couple of those times strike me as the weasel-like suspicious behavior of someone whose approach to answering questions is “never admit to anything unless you learn that they already have the evidence.” So, he always answers first with “not sure/don’t know what you refer to/don’t remember” and only admits to things when shown evidence.
This behavior is strikingly abnormal and different from how a person who doesn’t have anything to hide would behave.
(Edit – and again, it seems to me like it’s different from autistic literal-mindedness! Literally answering the question would mean to comb your memory and answer without regard for what the prosecution is referring to. It would also include saying confidently “no” if you’re sure you never said something.)
Someone trustworthy would answer questions immediately, sometimes admitting to things that the prosecution may not already know.
Some examples:
[...]
[...]
To me, the focus on “What this is referring to” is illuminating because it shows how SBF is laser-focused on what the prosecution has on him. What’s strikingly absent is a desire to try hard at remembering so he can tell as much of the truth as possible.
Thanks for going to the trouble of sourcing these quotes.
I mean, in the “practice” cross-examination, I think he was frequently rebuked for guessing at what the prosecutor meant or sharing information beyond a short, binary, direct answer to the question the prosecutor (thought she) was asking. For example, “A. And by “go negative,” you’re talking about negative in a particular coin or negative net asset value? Q. Just have a negative balance, Mr. Bankman-Fried. A. Sorry. I— … THE COURT: … I’ve gotten beyond my tether here. … part of the problem is that the witness has what I’ll simply call an interesting way of responding to questions for the moment. Q. Mr. Bankman-Fried, in May of 2022, were you aware that account ID 9 @AlamedaResearch.com could have an overall negative value? A. I am giving you my best guess at answering the question. Q. I’m not asking for a guess. I’m asking what you understood at the time. A. I am going to answer what I think the question you are asking is, but I apologize if I’m answering the wrong question.” I think the precise question she intends to ask here is extremely important, but she won’t specify (or doesn’t understand that she needs to.) It’s a very complicated case and the details matter. If Alameda’s trading accounts collectively had a net liability of billions to FTX for an extended period with no uncorrelated collateral, then they “borrowed” billions here in the way ~everyone thinks they did. But if one subaccount was temporarily negative $3 billion in a particular coin while another subaccount was temporarily positive $4 billion in another coin and it’s mostly for market-making purposes, then the sense in which Alameda was “borrowing” $3 billion via its customer accounts is extremely different.
And then there are plenty of reports of how when SBF gave extra information that wasn’t asked for, that was surely “evading questions, trying to pour forth verbiage to distract Sassoon from what she’d asked.” (from here)
Perhaps we’re understanding the term “referring” differently—I hear it as “I don’t understand exactly what you’re asking me (and if I guess wrong you might make me look like a liar)” while you might be hearing it as “I don’t know which of the many pieces of supporting evidence have prompted you to ask this question and I don’t want to reveal more than you already know about.”
Taking the first example of “referring to” in your comment, we have:
I’m picturing his thought process as something like, “I think I used the word ‘safe’ multiple times in public forums in reference to FTX U.S. If that is what she’s referring to then my answer is ‘Probably.’ But maybe she’s referring to that tweet someone else wrote using the FTX Twitter account that said FTX International was safer than Binance. And I can’t think of any times I’ve actually described FTX International with the word ‘safe’ and I don’t think I would have said that, so what do I say? If I say ‘Yes’ then I’m giving the impression that I said something bad that I don’t think I said, but if I say ‘No’ then she might bring up that tweet and make me look like a liar.”
I think that’s how my mind would respond anyway, given the way other interactions had gone. For example, “Q. Now do you remember telling Zeke Faux in early 2022 that Alameda played by the same rules as other traders? A. Not in that wording, no. Q. So you don’t recall that. A. No. Q. Do you recall telling him that in other wording? A. I recall saying that Alameda wasn’t front running other customers, that its trading access was like other customers.” If SBF had given a straight “no”—because he did not in fact make the claim that the prosecutor is heavily implying he did—and then the prosecutor had shown the jury a quote from Faux paraphrasing SBF that was taken out of context, would that have been perjury? I would definitely have been wary of giving yes/no answers to imprecise or misleading questions.
Who is ever sure they never said something? I’m not sure why you and I disagree here. I feel like the “normal” way to answer questions about things you may or may not have said a year or so ago is to say “yes” when you’re >50% sure you said it and “no” otherwise. Or, perhaps when testifying in your own defense, to just say “yes” every time you get the sense the prosecutor is about to pull out some written record of you saying it, even when that’s technically lying because you don’t actually remember, because it’s not worth the risk. But I think literal-minded people will feel very uncomfortable having only those two options and would rather say “I don’t recall”, especially if in squeezing their 25% confidence into a “no” only to get proven otherwise would constitute perjury.
I don’t know which of the lines above are the 2+ suspicious ones, but none of them strike me as such.
I’d note that Judge Kaplan invited the defense to seek a delay in the trial date if it felt that SBF being remanded to jail prejudiced their ability to put on a defense. They did not do so (likely in an attempt to create a longshot appellate issue, in my opinion). He also had access to a lot of discovery material for many months before being remanded.
There’s also a bit of tension between SBF’s claim that he didn’t have access to information needed to prepare his defense, and that the government dumped too much information on his defense team (at least 7.7 million pages, if I read correctly). Now, I don’t know what was in the Brady material, but I’d want specifics before concluding that important information was unavailable to the defense.
That’s interesting. Do you know when that invitation was (I can’t find it)? If it was close to the trial date, fair enough. If it was at the point of being remanded, it looks like he ended up experiencing a lot of problems that weren’t particularly foreseeable.
I can fact check if you’re curious, but just going by memory for now:
In SBF’s “practice” testimony that the judge requested, someone made a comment about how very convenient it was that he wasn’t able to produce the document retention policy that he kept referring to in an effort to defend himself. He replied that he’d requested it from FTX many times.
There was at least one complaint in the run up to the trial that a huge amount of discovery material had been made available to the defense at such a late date, and SBF was having so many problems with Internet access, that this should hardly count as an opportunity to review the information.
There’s also a huge difference between “information the prosecution wants to use against the defendant” and “information the defendant wants to use to defend himself”. I think the basic situation was that SBF didn’t have a realistic opportunity to look at the former before the trial and that he never had access to the latter (except for information that was inextricably part of evidence that prosecutors had judged served their own ends more than SBF’s overall.) I don’t think there’s a tension between millions of pages being used against you and having minimal access to data that might exonerate you.
(Docket order of Sept 12, 2024, citing transcript of August 30). He was remanded on August 11, so it was pretty soon after that. Moreover, any competent defense attorney would know that they could seek a trial delay on this basis; they did not have to wait for Judge Kaplan to broach the possibility himself.
The district court addressed the late production argument in the same order:
(typos in docket text).
“[I]nformation the prosecution wants to use against the defendant” isn’t an accurate characterization of the government’s Brady obligations—see the Wikipedia article linked earlier. “[P]art of evidence that prosecutors had judged served their own ends more than SBF’s overall” is pretty much the polar opposite of what Brady requires. And I think it is rather unlikely that USAO/SDNY would play games with Brady and thereby risk what they saw as a slam-dunk conviction, especially where the defendant was represented by well-bankrolled counsel and had at least some inside knowledge of what documents might be out there.
Also, none of this seems tied to the specific perjury findings the Government asked the district court to consider—that “Bankman-Fried falsely testified that he did not know about Alameda spending customer deposits, that he did not know until late 2022 that FTX’s code features were being improperly used to take customer money, and that he thought in November 2022 that his tweets were accurate and not misleading.” (p. 31-32 here).
Finally, as to evasiveness / hair splitting / dodging more generally, I’d note that Judge Kaplan has been on the bench for thirty years and has plenty of exposure to defendants who have been remanded, witnesses and defendants who may have conditions that affect their ability to give testimony, and those in extremely complex cases with voluminous discovery. I see no reason to believe he was incapable of factoring those things in to the extent relevant, or unwilling to do so, and trust his findings of fact more than SBF’s self-serving narrative unless given a good reason to depart from that.
From a media report:
Thank you—I misread you, I apologize, I thought you’d said the judge offered a trial delay. (Although it’s still somewhat interesting that Judge Kaplan reminded the defense that they could submit a request for a delay and he would consider it.)
Clearly the Court did not find this persuasive, but I still want to share some sense of the difficulties SBF was facing: at “the latest opportunity the defense had to observe whether the plan for access to the internet-enabled laptop would work as promised,” due to a number of factors, SBF “spent an entire day getting access to a single document. That is one day he could not spend working at the MDC or conferring with his lawyers.” (from here). Perhaps Brady only requires that access is given to SBF’s lawyers (who were not all “well-bankrolled” by the way—Mills at least worked pro bono), but I still think these kind of things are worth mentioning in discussions of the extent to which SBF’s testimony was evasiveness vs. genuinely not recalling.
Also, even if “the recently produced documents” were mostly “from the defendant’s own Google accounts,” he had at least 2.5 million pages in his Google accounts, so whether they were technically “accessible” is not really the point. (Assuming he did have access—SBF reported that FTX cut off his access to his personal LinkedIn account, for example.)
But I do think I veered into talking about how FTX would only provide data to the prosecution not the defense, when my original comment that started this thread was just the words “discovery material”, which may have confused things.
I think Judge Kaplan’s apparent dislike of SBF has been widely reported and I assume we’ll have to agree to disagree on whether that biased any of his judgments in this case.
Yeah, we’ll have to agree to disagree on that.
I don’t have videotape of Judge Kaplan, of course, but some behavior that may come across as “apparent dislike” could actually reflect sound courtroom management techniques. For instance, sternly lecturing an defendant who does things like use a VPN while on tight electronic lockdown is a restrained use of the district court’s power, authority, and responsibility to manage the proceedings before it. It can be an attempt to prod an errant defendant back in line without bringing out the heavier-handed powers (although Judge Kaplan did end up remanding SBF after the second tampering episode, on which he was affirmed by the Second Circuit).
To be perjury, false, material testimony must be under a legally valid oath or its equivalent. Lying to the media isn’t perjury; generally it is not a crime at all.
What I meant with by “he didn’t take it back” is a situation as follows:
The prosecution asks him if he made certain claims in the media. SBF says “yes” or “it appears that way” or whatever. The prosecution at some other point in the trial (maybe days earlier, maybe afterwards) asks some specific details about how FTX accounts were structured and how money was moved that contradicts what SBF said in the media. At some third point in the trial, they ask him if he deliberately lied to the media/gave false accounts about how things worked, and he said no. (Or, instead of asking him “did you tell the truth to the media?,” maybe they just asked him the same question the media asked him, and SBF stuck to his guns to avoid admitting that he mislead the media – similar outcome because he’s now saying the false thing in the trial setting.)
(I’m not actually sure this exact thing happened – it’s been a while since the trial. But I’d guess there were cases like that where you can look at different responses he gave to various questions and find that they’re in tension with things established by the prosecution from other witnesses. That’s probably also what the judge meant when he said that he found three instances of perjury? But I’m flagging that I haven’t looked at Kaplan’s elaborations on those three points. It’s more that I trust that Kaplan is likely to come to the right interpretations on those counts because when I followed the trial, it also felt to me like SBF was, at various points, getting trapped/caught in a web of questions, previous answers, and others’ testimony. In other words, I’m pretty sure I thought at various points “this is probably perjury established, if we believe this other witness?” – but I didn’t write those down, so I don’t remember the exact web of testimonies that would’ve conclusively trapped him.)