The U.S. Department of Justice and Sam Bankman-Fried filed competing sets of jury instructions for the October trial of the FTX founder a day before he is set to be arraigned on a new superseding indictment.
Prosecutors filed the document, titled "the government's requests to charge," late Monday, adapting from various previous sets of jury instructions including past statements from Judge Lewis Kaplan, the Southern District of New York judge overseeing Bankman-Fried's case. The FTX founder faces seven different charges, ranging from wire, securities and commodities fraud conspiracy to money laundering allegations, to which he has pleaded not guilty.
Monday's filing from the Department of Justice (DOJ) lays out each of the different counts arrayed against Bankman-Fried in detail, explaining the differences between "substantive crimes" and "crimes of conspiracy."
A separate filing made by Bankman-Fried's own lawyers shortly after suggest that he may argue he honestly believed his use of customer funds was not unlawful. The filing suggests his behavior amounted to honest mistakes in judgment and errors of management rather than crimes – and plays with the idea that crypto, currently unregulated, represents a legal gray area.
"If Mr. Bankman-Fried acted in good faith with respect to the use of FTX customer funds and with the belief that as a business matter, FTX would be able to cover all customer withdrawal requests, he did not act with specific intent to defraud," Bankman-Fried's filing said, telling the jury that "It is also not relevant whether you believe certain conduct should have been regulated even though it was not regulated at the time."
The DOJ has already questioned Bankman-Fried's apparent reliance on an "advice of counsel" defense – that he believed actions were lawful based on his own discussions with lawyers.
The substantive crimes "charge a defendant with the actual commission or attempted commission ... of an offense," the DOJ proposal says, while the conspiracy charges require an agreement with another individual.
The proposed DOJ jury instructions also spell out what jurors must keep in mind if they vote to convict: that there was a scheme to defraud, that the defendant "knowingly and willfully participated" in said scheme and that the defendant used interstate wires (which includes the internet).
Bankman-Fried is currently set to go on trial at the beginning of October. He was recently remanded to jail after Judge Kaplan revoked his bond. The judge ruled that the onetime FTX CEO had violated his bail conditions in contacting FTX.US general counsel Ryne Miller and sharing former Alameda Research CEO Caroline Ellison's diary with the New York Times.
UPDATE (Aug. 22, 07:25 UTC): Adds details from SBF filing in the article. Updates headline, subheadline.
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