How Perjury and Witness Tampering Compounded SBF's Legal Woes

G. The Enhancement for Obstruction of Justice Is Warranted

Section 3C1.1 of the Sentencing Guidelines mandates a two-level increase in a defendant's offense level “[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. Examples of covered conduct include “intimidating, or otherwise unlawfully influencing a … witness,” “committing … perjury,” or “destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation.” U.S.S.G. § 3C1.1 cmt. n. 4. The enhancement applies not just to obstructive conduct that “occurred with respect to the investigation,” but also obstructive conduct “that occurred prior to the start of the investigation of the instant offense of conviction … if the conduct was purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction.” U.S.S.G. § 3C1.1 cmt. n. 1.

There are three bases for this enhancement, all discussed above: the defendant’s instruction that employees should implement the auto-deletion of messages; the defendant’s witness tampering; and the defendant’s perjury at trial.

The defendant objects to the statements in the PSR that he instructed employees to autodelete messages and that he tampered with witnesses. (Def. Mem. at 26). However, the factual record is clear on his instructions to destroy evidence, and this Court has already made factual findings relating to the defendant’s witness tamping—each set of facts would alone be sufficient for this enhancement to apply.

That said, because it is also relevant to the application of the Section 3553(a) factors, the Government respectfully submits that the Court should make factual findings at sentencing regarding the defendant’s perjury during trial. “‘A witness testifying under oath or affirmation violates’ 18 U.S.C. § 1621, the federal perjury statute, ‘if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.’” United States v. Norman, 776 F.3d 67, 84 (2d Cir. 2015) (quoting United States v. Dunnigan, 507 U.S. 87, 94, 113 (1993)). The Guidelines enhancement for obstruction of justice may be based on a defendant committing perjury. U.S.S.G. § 3C1.1, cmt. n. 4(b); see also United States v. Ben-Shimon, 249 F.3d 98, 102 (2d Cir. 2001) (“an enhancement for obstruction of justice based on perjured testimony may be imposed only where the sentencing court finds ‘that the defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material matter’” (quoting United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997))). Where, as here, “a defendant objects to a sentence enhancement resulting from [his] trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice, or an attempt to do the same, under th[is] perjury definition.’” Id. (quoting Dunnigan, 507 U.S. at 95). As the Second Circuit explained in Norman, the Supreme Court in Dunnigan held that the enhancement was sufficiently supported where the sentencing court found that the defendant was “untruthful at trial with respect to material matters in the case and that her false testimony was designed to substantially affect the outcome of the case.” 776 F.3d at 84 (internal quotation marks, citation, and emphases omitted).

Like the defendant in Norman—where the Second Circuit affirmed application of the obstruction enhancement for perjurious trial testimony—Bankman-Fried gave untruthful testimony that was designed to affect the outcome of the case. And as in Norman, this Court should not credit Bankman-Fried’s testimony “in the face of other evidence that revealed his mendacity,” including the testimony of three cooperating witnesses that Bankman-Fried watched during trial. Most egregious was Bankman-Fried’s willfully dishonest testimony that, until the fall of 2022, he had no knowledge that Alameda had spent FTX customer deposits. The evidence at trial established that he set up Alameda bank accounts to receive and spend FTX customer dollar deposits and that he oversaw changes to FTX’s codebase that enabled Alameda to spend FTX cryptocurrency deposits. The evidence was also overwhelming that he approved Alameda spending billions of dollars of FTX customer money to pay its expenses and debts, and was aware that Alameda secretly owed FTX customers billions of dollars as a result.

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).

Because Bankman-Fried deliberately lied on the stand, his argument that the obstruction enhancement sometimes does not apply to false testimony is misplaced. To be sure, U.S.S.G. § 3C1.1 points out that the “provision is not intended to punish a defendant for the exercise of a constitutional right” and that “[i]n applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory….” U.S.S.G. § 3C1.1, cmt. n. 2. Bankman-Fried’s repeated and brazen lies about the core misconduct in this case cannot be chalked up to confusion or faulty memory. He committed himself to parts of his false story prior to his indictment, at a time when he thought most incriminating documents (such as his messages with coconspirators) had been deleted and before he knew that the Government was able to recover metadata that showed he accessed several incriminating spreadsheets. Additionally, as the Court certainly observed during the defendant’s testimony, body language, decision to look away during certain questions, and non-responsiveness to answers all demonstrate concerted acts of evasiveness, not simply a failure of memory.

The defendant’s willful dishonesty is also clear from his elaborate contortions to marry up his false testimony with the Government’s inculpatory documentary evidence. An example is his testimony about the spreadsheet that Ellison shared with him showing seven alternative balance sheets that they could send to Alameda’s lenders to conceal its true financial picture. (GX-44). Because there was metadata showing that Bankman-Fried had accessed the document, he was unable to testify that he had never seen the document before. So instead, he lied and claimed that while he may have seen part of the spreadsheet, he only saw one tab of it, which by chance was the version sent to lenders. (Tr. 2732). The gymnastics that Bankman-Fried had to perform to explain the evidence proves that his false testimony was not the product of confusion, mistake, or faulty memory.

Accordingly, for each of the reasons set forth above, imposition of the obstruction enhancement is warranted.