Examining Witness Tampering Charges Leveled Against Sam Bankman-Fried

B. The Defendant’s Witness Tampering

While on bail pending trial on this case, Bankman-Fried twice attempted to tamper with witnesses.

On January 15, 2023, Bankman-Fried contacted the former General Counsel of FTX US, Ryne Miller, over Signal and by email, writing in part: “I would really love to reconnect and see if there’s a way for us to have a constructive relationship, use each other as resources when possible, or at least vet things with each other,” and suggested they speak further by phone. Bankman-Fried and Miller had not spoken since the bankruptcy more than two months earlier, and the Government had already informed Bankman-Fried of its extensive investigation. Miller through his counsel informed the Government of this reach-out, and the Government brought the matter to the Court’s attention. The Court stated that on its face the message “appears to have been an effort to . . . sing out of the same hymn book” (Dkt. 17.1 at 5), and expressed concerns at the time that the then-existing bail conditions would not be sufficient to prevent witness tampering. The Court imposed more substantial bail conditions including restrictions of the defendant’s use of electronic devices.

Despite these warnings, Bankman-Fried again attempted to tamper with a witness in July 2023. On July 20, 2023, the New York Times published an article entitled Inside the Private Writings of Caroline Ellison, Star Witness in the FTX Case (the “Article”). The Article quoted from private electronic journal entries written by Ellison, but in Bankman-Fried’s possession, that describe her feelings and insecurities with respect to her work at Alameda and her personal relationship with Bankman-Fried. After Bankman-Fried’s counsel confirmed that Bankman-Fried was the source for private documents quoted in the Article, the Government alerted the Court that Bankman-Fried had provided private and potentially embarrassing writings of Ellison—his exgirlfriend, former CEO of Alameda, and cooperating witness—to the New York Times in order to discredit her, paint her in an unfavorable light, and influence a future jury’s perception of the case. (Dkt. 176).

In a letter to this Court, Bankman-Fried claimed he had done “nothing improper” by covertly leaking Ellison’s writings, but agreed to an order limiting extrajudicial statements about the case. (Dkt. 178). Bankman-Fried also asserted that he had merely given “comment on a story in progress.” (Dkt. 178 at 4). Reviewing data from a pen register on Bankman-Fried’s phone and email, however, the Government learned that over the prior several months, Bankman-Fried had sent over 100 emails to, and had over 1,000 phone calls with, members of the media, including over 100 phone calls with one of the Article’s authors. Many of these communications occurred prior to the publication of other articles about Ellison. Of course, Bankman-Fried’s contacts with the press—regardless of the volume—were not inherently problematic and did not form a basis for revocation of bail; rather the frequency and nature of the communications belied Bankman-Fried’s factual claim that he had merely given “comment on a story in progress” (Dkt. 178 at 4), rather than attempted to inject unfavorable information about Ellison into the press and turn potential jurors against her.

At a conference on July 26, 2023, the Government requested that the Court revoke Bankman-Fried’s bail and order him detained. At Bankman-Fried’s request, the Court ordered additional briefing from the parties, and held a bail hearing on August 11, 2023. After hearing from the parties, this Court found that there was probable cause to believe that Bankman-Fried twice committed attempted witness tampering in violation of 18 U.S.C. § 1512(b) while on pretrial release, giving rise to the rebuttable presumption under 18 U.S.C. § 3148(b)(2)(B) that no conditions would assure the safety of the community. (Dkt. 17.2 at 25-38). This Court found that the presumption had not been overcome, and that, in light of Bankman-Fried’s continued evasions of his pretrial release conditions, Bankman-Fried was unlikely to abide by conditions of release. (Id. at 38-40). The Court’s revocation of Bankman-Fried’s bail was affirmed on appeal. United States v. Bankman-Fried, No. 23-6914, Dkt. 32.1 (September 21, 2023). The Second Circuit held that the record supported this Court’s “conclusion that there was probable cause to believe” that Bankman-Fried “attempted to tamper with two witnesses in violation of 18 U.S.C. § 1512(b), and specifically that he acted with unlawful intent to influence those witnesses.” (Id. at 1). The Circuit further explained that this Court “correctly determined that when a person engages in speech to commit a criminal offense such as witness tampering, the speech falls outside the zone of constitutional protection.” (Id. at 2).

The record before this Court with respect to bail revocation likewise demonstrates by a preponderance of the evidence that Bankman-Fried twice attempted to tamper with witnesses after he was indicted and while awaiting trial.