The US Should be Ordered to Disclose Materials Relevant to Sam Bankman-Fried’s Extradition

ARGUMENT

IV. Alternatively, the Government Should Be Ordered to Disclose Materials Relevant to Mr. Bankman-Fried’s Extradition Motion for Disclosure and Inspection of Diplomatic Correspondence.

If the Court determines that it needs further information before ruling on the motion to dismiss Counts 9, 10, 12 and 13, Mr. Bankman-Fried respectfully requests an order pursuant to Rule 16(a)(1)(E)(i) directing the Government to produce materials concerning Mr. BankmanFried’s extradition from the Bahamas. The materials sought include diplomatic correspondence and notes regarding, without limitation, the initial charges at the time of Mr. Bankman-Fried’s extradition and the subsequent additional charges, as well as any notes, filings, or other communications with the Bahamas, Bahamian law enforcement officials, transcripts or recordings of the extradition proceedings in the Bahamian courts, and any documents signed by or provided to Mr. Bankman-Fried during the extradition process.

“An item is ‘material to preparing the defense’ under Rule 16 ‘if it could be used to counter the Government’s case or bolster a defense.’” United States v. Urena, 989 F. Supp. 2d 253, 258 (S.D.N.Y. 2013) (quoting United States v. Stevens, 985 F.2d 1175, 1180-81 (2d Cir. 1993)); cf. United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (“There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.”) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975)).

Here, the requested documents are material to the defense’s contention that prosecuting Mr. Bankman-Fried for Counts 9, 10, 12 and 13 violates the Extradition Treaty, in that they breach the rule of specialty, the Government’s obligation to provide supporting evidence to the Bahamas, and lack of consent of the Bahamian authorities. Mr. Bankman-Fried requested these documents from the Government, but the Government to date has only produced the formal extradition documents in the possession of the United States Attorney’s Office and the Federal Bureau of Investigation, and has refused to produce any communications or other documents relating to Mr. Bankman-Fried’s extradition. For example, the Government has not indicated whether it has in its possession communications between the Bahamas and any other U.S. government agency that have been forwarded to it. To the extent the Government has such communications, those materials would likely be relevant to clarifying the position of the Bahamas as to Counts 9, 10, 12 and 13. The Government therefore must produce those communications and the other requested materials to the defense and should be ordered to do so immediately. The alternative means of obtaining the requested documents—through subpoenas served on the Government, the U.S. Department of State, and unidentified witnesses, including witnesses abroad—would be impractical. The Government would likely move to quash any subpoena, requiring Court intervention; and it would be impossible to serve subpoenas on witnesses without knowing their names and locations. We therefore request that, if the Court believes it cannot dismiss the counts based on the facts currently before it, the Court direct the Government to produce these materials and permit the parties to submit additional briefing regarding the motion based on those materials.