The Department of Justice is Seeking Clarification on Sam Bankman-Fried’s Advice-of-counsel Defence

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Last Updated on August 30, 2023 by Bitfinsider

The US Department of Justice (DOJ) has responded to Sam Bankman-Fried’s desire to use an advice-of-counsel defence in his upcoming trial in October.

According to a legal document on Tuesday, the government department asked the court to require the defendant to disclose more thorough facts about his defence plan to be raised during trial. In the absence of that, it sought the court to prohibit specific sorts of questioning, evidence, and arguments that were irrelevant to the case.

If convicted on charges involving fraud, the disgraced former FTX CEO faces more than 100 years in jail amid allegations that he and other FTX officials exploited billions of dollars in client assets for their own unsuccessful projects. In November 2022, FTX declared bankruptcy.

Bankman-Fried had already been instructed by the court to notify the government if he intended to provide such a defence on July 1. On August 16, the defendant wrote to the government, “please take notice of our intention to rely on a defence of advice of counsel at trial.” The government advised defence counsel that the notice was insufficiently thorough and requested additional disclosures.

Lawyers for Sam Bankman-Fried said on Aug. 23 that they planned to argue that he was provided legal guidance on issues such as auto-delete policy and loans to FTX and Alameda, which led him to feel he was “acting in good faith.” Lawyers for imprisoned Bankman-Fried have stated that they intend to “elicit evidence” that lawyers from Fenwick & West LLP and in-house counsel were involved in “reviewing and approving” key decisions.

However, the defence “declined to provide any additional information about the nature of the reliance on counsel, or to produce discovery as the government had requested,” U.S. Attorney Damian Williams wrote to Judge Lewis Kaplan in the brief.

The government maintained that the mere presence of solicitors does not show a defendant’s innocence or good faith, citing various judgements to emphasise the significance of clarity in presenting an advice-of-counsel defence. The government emphasised the importance of defendants providing evidence that they truly sought legal advice, disclosed all relevant facts to their counsel, and acted on that advice.

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