- The Washington Times - Thursday, December 28, 2017

Ross Ulbricht, the convicted administrator of the infamous Silk Road internet marketplace, has appealed his case before the U.S. Supreme Court.

Attorneys for Ulbricht, 33, have filed a petition for writ of certiorari challenging both his conviction and sentencing before the country’s highest court, Reason magazine first reported Wednesday.

“This case — one of the highest-profile federal criminal prosecutions in recent years — presents two important questions requiring the Court’s review,” Kannon K. Shanmugam, Ulbricht’s lead attorney, wrote in the cert petition.

“The first question is whether the warrantless seizure of an individual’s internet traffic information without probable cause violates the Fourth Amendment,” wrote Mr. Shanmugam, a former law clerk to late Justice Antonin Scalia. “The second question is whether the Sixth Amendment forbids a judge from finding facts necessary to support an otherwise unreasonable sentence,” he wrote.

Ulbricht was arrested in 2013 in connection with operating Silk Road, an underground bazar that allowed internet users to buy and sell illegal drugs and other contraband, and he was convicted in 2015 of related counts including money laundering, computer hacking, conspiracy to traffic fraudulent identity documents and conspiracy to traffic narcotics.

U.S. District Judge Katherine Forrest sentenced Ulbricht in 2016 to life in prison without parole, and the Second Circuit Court of Appeals upheld both Ulbricht’s conviction and punishment in May, paving the way for the potential Supreme Court review requested by his attorney.

“This case is an appropriate vehicle in which to provide much-needed clarity on critical and recurring questions of federal criminal law,” Mr. Shanmugam wrote in the cert petition.

Of particular concern is whether Ulbricht’s constitutional rights were violated during the course of the FBI’s investigation or the judge’s subsequent sentencing, especially protections afforded by the Fourth and Sixth Amendments, according to his attorney.

Investigators narrowed in on Ulbricht by monitoring his internet traffic, albeit not without a search warrant, the cert petition recalls. Instead, rather, the FBI relied on a provision of the federal Election Communications Privacy Act, the legislation’s so-called “third-party doctrine,” to monitor Ulbricht’s internet activity by simply vouching that data “likely to be obtained” would be “relevant” to an ongoing criminal investigation, Mr. Shanmugam wrote.

Ulbricht was subsequently sentenced upon conviction to life behind bars without the possibility of parole — “a sentence almost unheard of for a first-time offender charged with the offenses at issue,” Mr. Shanmugam wrote — based at least partially because prosecutors alleged that Ulbricht commissioned the murders of five people while at Silk Road’s helm.

Ulbricht “was not charged for the alleged commissioning of murders; indeed, at trial, the government did not claim the murders actually occurred and stressed to the jury that it was ‘not required to make any findings about them,’” Mr. Shanmugam wrote.

“The district court imposed that sentence by resolving several disputed issues of fact; absent those judge-found facts, petitioner’s sentence would have been unreasonable,” Ulbricht’s attorney wrote.

The cert petition was filed Friday, but was not docketed on the Supreme Court’s website as of the following Thursday afternoon.

The Department of Justice declined to comment.

• Andrew Blake can be reached at ablake@washingtontimes.com.

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