[00:00:00] Speaker 04: Case number 24-3161, United States of America versus Romans Domingo Appellant. Mr. Eklund for the appellant and Ms. [00:00:09] Speaker 03: Elkinson for the appellee. [00:00:12] Speaker 03: Good morning. [00:00:12] Speaker 00: Good morning, Your Honors. If I may reserve three minutes for rebuttal. [00:00:20] Speaker 00: Are you ready? Yes, may it please the court. [00:00:23] Speaker 00: Article 3 of the United States Constitution and the Sixth Amendment to the United States Constitution require that all criminal trials be tried in the state and the district where the crime occurred. It's not optional. It's mandatory. And when you look at count one in this case, which is a conspiracy to money launder charge, In the indictment, there's no reference to anything happening in DC. [00:00:59] Speaker 00: And I think what is astonishing about this case is that there's not a single piece of evidence anywhere in the record. After a multi-year investigation starting in 2014, 2015, after almost two years of pretrial proceedings, there's not a single piece of evidence in the record showing any kind of conspiratorial act in the District of Columbia. [00:01:33] Speaker 00: Nor does the government point to any in its opposition brief. [00:01:39] Speaker 00: What the government relies on for venue in count one is count two's sting representation. The court may recall that the sole act alleged in the entire indictment that's happening in D.C. consists of a November 2019 mix through Bitcoin fog by an IRS criminal investigator in the District of Columbia. [00:02:08] Speaker 00: That government agent is not a co-conspirator. [00:02:13] Speaker 00: I think, by law and also by the fact that that agent is not listed in the government's bill of particulars listing conspirators. So that can't be the basis for Count Juan's conspiracy to commit money laundering in the District of Columbia. [00:02:33] Speaker 00: Nowhere else in the record, anywhere, after a three and a half week trial, Is there any evidence of any conspiratorial act, any conspiratorial communication or anything in the District of Columbia? [00:02:51] Speaker 03: Mr. Sterling Goff had the agent sent a message about how, you know, how could I trust and rely on Bitcoin fog that was not responded to him. [00:03:04] Speaker 03: If, and this is, so this is clearly a hypothetical, but if Mr. Sterlingoff had seen the message and responded to it and then sent, and then everything's the same, sent the money, would that make a difference? [00:03:18] Speaker 00: Yes, I think it would make a huge difference. [00:03:20] Speaker 03: Would that make Venue proper in D.C.? [00:03:22] Speaker 00: Yes, I do think, yes, I think it would. [00:03:25] Speaker 03: That's a real question for Venue. [00:03:28] Speaker 00: No, I'm sorry, Your Honor. [00:03:29] Speaker 03: No, I'm sorry. So the real question for Venue, it seems to me, is whether a reasonable jury could have concluded on this record that Mr. Sterlingoff saw that message. [00:03:41] Speaker 00: I think for count two, and I think that's a fascinating question about count two, because when I did my research, I looked for cases involving sting representations like you have here, where there wasn't any knowledge. on the part of the defendant or any co-conspirator of the message. And I couldn't find one. Like, every case I look at, there is either knowledge on the part of the defendant or some sort of co-conspirator. [00:04:12] Speaker 00: What's fascinating about, I think, this case and why it almost looks like a law school exam is that there's no evidence that the message was ever seen or received. [00:04:25] Speaker 03: STEPHANIE DESMOND- So my hypothetical All right, my hypothetical now, if we ask for focus on whether a jury could have found that he saw it and then the money was sent, that would be relevant to the conspiracy count as well, would it not? [00:04:42] Speaker 00: No, because that's not an act in furtherance of the conspiracy. [00:04:45] Speaker 03: I thought I'd asked you if he had seen it and responded whether that would take care of the venue issue, and I thought you said yes. [00:04:51] Speaker 00: Well, as the court knows, the venue has to be proper for each count. [00:04:55] Speaker 03: Okay, so I'm sorry, because I thought you were talking about the conspiracy count. Why wouldn't it be relevant to the conspiracy account as well if the conspiracy is to operate this Bitcoin fog business and the whole premise of the way it works to obscure identities, whether privacy or to protect against prying investigative eyes, is that money comes in and gets mixed. [00:05:24] Speaker 03: and lost in the shuffle so nobody can identify which Bitcoin came in and which went out. And so it seems to me that everybody who puts, every time they accept more Bitcoin to come in, so every time those who organize Bitcoin have a situation where money is invited in, every payment in is part of advancing the conspiracy because it increases the size of the pool of Bitcoin funds that are shuffling around and shuffling around and obscuring identities. [00:05:59] Speaker 00: Well, the charge, as I understand it, is conspiracy to money launder and subsidies. [00:06:04] Speaker 03: That's the money laundering, money coming in. And if other people, if money didn't come in, you couldn't money launder. You have to have, I'm sorry, I'm calling it money. Bitcoin came in. [00:06:15] Speaker 03: You can't money launder unless there's lots and lots of Bitcoin coming in from different sources. [00:06:21] Speaker 00: But the mixing per se is not illegal. At least that's what the district court said. So there's entirely legal, legitimate uses for mixers. [00:06:32] Speaker 03: For mixers, but not for Bitcoin fog. [00:06:36] Speaker 03: And so if its whole purpose was to... [00:06:40] Speaker 03: This is the jury termination here that it was used for money laundering, maybe not exclusively money laundering, but it was used for money laundering. And the way it was is Bitcoin comes in from many different sources. So when agent prices Bitcoin came in, it became part of the mix that obscured the identity of criminal Bitcoin that was coming in. [00:07:04] Speaker 00: But that's not an act in furtherance of... It seems to me it's an act essential to the conspiracy. [00:07:10] Speaker 03: If you don't have Bitcoin pouring in, the money laundering can't work. [00:07:17] Speaker 00: Well, the Bitcoin fog was functioning without agent prices. [00:07:21] Speaker 03: max well you could say that for any individual one but for every individual it's part that's part of the it is part of the plan is that we will have money come bitcoin again coming in from multiple sources and that's what will allow the mixing to obscure and hide those either who want their privacy and or those who for legitimate reasons those who want their privacy and identity hidden for illegitimate reasons the money laundering You could say that lots of times in conspiracies. A conspiracy would have kept going except for drug sale 12. [00:07:54] Speaker 03: It would have kept going. It was fine. That didn't really make it come or go. But every drug sale that contributes to a drug conspiracy is part of advancing that conspiracy. So to hear... [00:08:06] Speaker 03: If a jury were to find that your client, Mr. Sterling Goff, had seen that message and nonetheless sent Bitcoin to Mr. Price, then his contributions, that inviting that in and sending it back, sending new Bitcoin to him, would have advanced a conspiracy in that moment. [00:08:28] Speaker 00: I respectfully disagree on that just because the... [00:08:34] Speaker 00: Agent Price wasn't a co-conspirator, and nor was his conduct essential. [00:08:38] Speaker 03: No, but it advances the conspiracy to others. [00:08:43] Speaker 00: There's a big question of what conspiracy. I don't think you can hang the... [00:08:54] Speaker 00: charge one's conspiracy to money launder on the mixing of roughly $86 of licit funds in 2019. I think that's a bit of a stretch, particularly when that $86 wasn't from a conspirator and wasn't essential conduct. I think what the Constitution requires for venue is that essential conduct to the crime charge occur in the district. [00:09:31] Speaker 03: Is it your view that essential conduct can only be illegal conduct? [00:09:36] Speaker 03: No, but it's... You can advance a conspiracy through a lawful act as well. [00:09:41] Speaker 00: Yes, you can. But here, when you have count two, what the crux of count two is, is the representation. And you have a representation that there's obviously, as this court knows, as we've been going through, there was no response to. And I think that's very problematic. [00:10:00] Speaker 03: But I thought we were. I thought we were still on venue for count one and whether there was... And you had said that you need an act that's advancing the conspiracy. [00:10:09] Speaker 00: Well, the indictment, the superseding indictment, only mentions agent Price's mix in count two. It doesn't mention it for count one. And, of course, the court knows you have to find venue proper on each count. And what's, again, astonishing to me is we're talking about agent Price, but in... [00:10:33] Speaker 00: All of this investigation, all of the evidence, when they seize Mr. Sterling off three laptops, multiple terabytes of hard drives at the airport, his personal notes, a spreadsheet of all of his passwords to his Internet accounts. What's astonishing to me is not only is that there's nothing in there that references Bitcoin fog anywhere. There's no direct evidence at all in this case. [00:11:01] Speaker 03: You don't have to have direct evidence. That sounds like a sufficiency argument, not a venue argument. [00:11:06] Speaker 00: It is a sufficiency argument because I think that bleeds over in relation to count two. But I think Agent Price's licit mix, you know, a sting where no one was stung, I think that's a really... [00:11:23] Speaker 00: It's being asked to do a lot more work than it can do. [00:11:27] Speaker 01: And I think the problem... I haven't heard you, to this point, talk about, under the venue statute, it says that the prosecution for a conspiracy offense could lie not only where an act in furtherance of the conspiracy took place, but where a completed offense took place. [00:11:52] Speaker 01: takes place. And I guess just following up on Judge Millett's question, where the government's theory is that the money laundering is happening because cryptocurrency is being mixed and there might be some mixing of illicit funds with illicit funds to wash the money, so to speak. [00:12:19] Speaker 01: Why isn't a transaction involving licit funds, part of the completed offense of money laundering under that theory. [00:12:34] Speaker 00: I think because there's no evidence in the record actually of how Bitcoin Fog internally worked. And I think if you're going to reach that kind of factual conclusion, you can't do it on this record because the government never found the Bitcoin Fog servers. They produced no logs. They produced no internal communications related to Bitcoin Fog. If you speculate, which I think this entire case is based on, You can speculate that that's the way that Bitcoin Fog operated. But the fact of the record is they don't have any real evidence at all in the record of how it operated. [00:13:09] Speaker 00: So if we're going to make some sort of dispositive determination that this was a completed transaction under these terms, you have to fill in facts that aren't in the record. And I think that's the hallmark of this case. If you look at every conclusion in this case... What facts are you missing? [00:13:26] Speaker 03: There's descriptions of how it worked for purposes of money laundering. That is that there was concerted efforts to obscure identities, to make sure transactions were not traceable. And they did that in large part by mixing everything together when the Bitcoins came in so that Bitcoins themselves could not be traced back to any individual. [00:13:53] Speaker 03: That's what they don't they don't need to know. They don't need to. Jerry doesn't need to look at a server. It doesn't need to read the computer code to understand how something worked. And there was testimony from. [00:14:05] Speaker 03: Mr. Sterlingoff or Mr. Akimashite about whichever person the jury could find that they were the same talking about how this was going to work. [00:14:20] Speaker 03: I don't understand why they have to find the servers. [00:14:23] Speaker 00: Well, if you're going to say that a crime occurred in D.C., I think you do need to have some kind of concrete evidence that something actually occurred or you run into the problem that in the Interact cases, the venue clause simply will get erased because if this is the standard, for venue and internet cases than any government agent just acting unilaterally from a keyboard can send a message to any website anywhere in the world that doesn't get a response and then get hailed in the court district. [00:14:59] Speaker 03: That's why he got a response. [00:15:01] Speaker 02: He got Bitcoin. [00:15:01] Speaker 03: Yeah. [00:15:04] Speaker 02: That's the response. He actually got the service. [00:15:08] Speaker 00: He got the service, but the service was operating as it should be. He didn't get a response to the message. And again, count two. [00:15:15] Speaker 02: He got the service. So a business transaction with a DC presence was completed. [00:15:26] Speaker 00: But that doesn't meet the sting requirement of Count Two's representational money laundering requirement. And I would... [00:15:36] Speaker 00: I would also be a little hesitant, I think, and I think this is one of the issues with, you know, computer cases. We're in such new territory. This is a matter of, I think, first impression. I think this is the first time this issue has ever been brought up in front of a court. To call that, you know, the receiving of Bitcoin a communication, and I think that's what the difficulty is that I'm having. [00:15:57] Speaker 02: or a transaction let me let me focus you on venue for count three and that's the federal money transmission licensing count so i wonder if you have argued even as i know you've challenged venue as we've just been talking about for for accounts one and two And I wonder if you've made a kind of alternative argument that even assuming that the jury and the district court correctly found that Bitcoin Fog's transaction with agent Page was money laundering and a money laundering conspiracy occurring partly in DC. [00:16:35] Speaker 02: So venue is established on counts one and two. Have you argued? [00:16:42] Speaker 02: that Bitcoin Fog was nonetheless not a money service business required to register with FinCEN. [00:16:52] Speaker 00: Yes, at least I like to think I did. [00:16:56] Speaker 02: Where in your briefing did you make that argument? I know you've said no requirement to register because no transactions in DC, but have you made any argument that even assuming transactions with DC may be a conspiracy occurring in part in DC, nonetheless, no requirement to register. [00:17:17] Speaker 00: I think that's made, I want to say in our reply brief and maybe in our opening brief where we essentially say he wasn't operating a business in DC, I think one of the operative words in the statute that jump out to me is business. It's not enough simply to have a one off transaction. I think what happened to you, there's three mixes, one in 2016. There's the one that we're talking about in count two, which is the only one where a message was sent. [00:17:48] Speaker 00: And there's there's one other one. I mean, if if Bitcoin fog, did they take their cut? [00:17:54] Speaker 03: But Bitcoin took its the coin fog took its cut out of every transaction, right? I think that's in the record, but... Yeah, and there's no evidence that didn't happen with respect to agent price. Price is transaction, so that's... They got paid. What do you mean? [00:18:08] Speaker 00: Well, what's remarkable to me about this... That's operating like a business. Well, if it's a business, how come there's no business customers in the record? [00:18:14] Speaker 03: How come there's no users beside... Because that's the whole point of the CISP scheme. I mean, really, the whole point of the money laundering scheme, all money laundering schemes, but especially this one, is to hide identities. to ensure there are no records by scrubbing the records on a regular basis, then it seems a bit rich to come and say, no money laundering conspiracy, no business here because there's no business records. That's the whole way this business functioned. [00:18:46] Speaker 03: It's a business of obscuring. [00:18:48] Speaker 00: I think that when the government manufactures venue in a case like they did here, and you don't have any other evidence of any criminal conduct in the District of Columbia, I think it strains the Constitution to say that venue is proper. [00:19:05] Speaker 01: I guess the problem I have with the manufacturing of venue argument is that If you are engaging in criminal conduct and you are willing to do conduct with anybody who contacts you and you don't know where in the heck that person is contacting you from, if you're doing business with them, then the government isn't manufacturing business. [00:19:31] Speaker 01: You're manufacturing venue by just doing business with whomever, wherever, however. [00:19:38] Speaker 01: I mean, I don't understand why... [00:19:43] Speaker 01: We should be outraged or concerned about what the government did here. Tell me. [00:19:50] Speaker 00: I think the concern... [00:19:53] Speaker 00: is erasing the Constitution's venue clauses in internet cases by allowing unilateral government action without more, without any response, putting aside the jury sufficiency argument, just looking at it purely as a legal thing, without any evidence of any response or knowledge on the part of the operator, assuming he's the operator, I think this is very dangerous because it creates universal jurisdiction [00:20:21] Speaker 01: They did business with this person. They didn't wait to transact business before inquiring, where are you? We don't want to do business with you unless you are in X location. [00:20:39] Speaker 00: I think the danger is that you're going to make a rule that mere Internet accessibility is going to constitute business for venue purposes. [00:20:45] Speaker 02: But let's say you have an Internet site that's defrauding people of money and it reaches D.C. and only one person and it bilks them out of a million dollars. [00:21:02] Speaker 02: No venue in D.C. ? [00:21:04] Speaker 00: Well, you would have an actual victim there. Do you have an actual victim in D.C. and it's not government initiated? [00:21:10] Speaker 02: That's a generic assertion that a government agent posing is just because there's no actual harm. But that's a much broader assertion about the use of government agents in sting operations. I mean, all kinds of. [00:21:27] Speaker 02: government agents posing as criminals and getting people who are disposed to deal with them to say they're going to deal with them. And then day in, day out, we treat that as act criminal action. If the person says, yeah, I want to commit the crime with you, let's meet tomorrow. So I'm not sure this is anything restricted to to this kind of conspiracy. [00:21:57] Speaker 00: I think this case is unique in that there's, in all the other cases I look at like that, there's some kind of evidence of knowledge on the part of either the defendant or a co-conspirator. And what's really striking to me in this case, and I think one of the odd things about this case, is that there's actually no corroborating evidence. And yes, circumstantial evidence counts. But when you go and you try to look, and find anything that corroborates all these speculations, you're left wanting. [00:22:28] Speaker 02: And here- I want to go back for a moment, just because I have an interest in this count three. You said that you argued that even if there were venue in DC for counts one and two, there isn't for count three. And you talked about business. And if I'm looking at the blue brief, you said there was no business conduct in DC. It's at page 25 of the blue brief, 25 to 27. And you talk about- there's no evidence of any uses in DC besides the government agents mixes, the three government mixes in DC. [00:23:07] Speaker 02: So if we found the government mixes to not be faulty for purposes of venue, do you have a separate argument for count three? [00:23:20] Speaker 02: that the FinCEN registration requirement is inapplicable. [00:23:27] Speaker 00: I think that stands on that Mr. Sterling offered Alchemist Shaitan and Datto or whomever wasn't operating a business in D.C. And it's not one of the things that was. [00:23:39] Speaker 02: So just for my purposes, sort of sorting out many, many issues in this case. [00:23:46] Speaker 02: If there is venue because we accept the page transactions as having occurred in DC, if there is venue for counts one and two, you don't have a separate argument that there's still no venue for count three, as I read your brief. [00:24:02] Speaker 00: Outside of the fact that it's not business conduct in the District of Columbia. [00:24:08] Speaker 02: That those transactions were not business? [00:24:09] Speaker 00: Yes, they don't constitute, because business, at least to me, the common sense of the word is carrying on, you know, business conduct in a given jurisdiction. [00:24:21] Speaker 02: Doesn't Page ask for the services of Bitcoin Fog to mix his, his cryptocurrency and he gets it back. So he's done a business transaction. And I mean, I know you say that's a fake transaction, but I'm trying to say apart from that defect, the government, it's fake, it's not, the government's not a co-conspirator, but apart from those defects, is there any other reason why that you've raised why that FinCEN registration requirement wouldn't be applicable. [00:24:58] Speaker 00: Besides what's in our briefs, no, I don't think so. And I think there's... [00:25:04] Speaker 00: you know, there's the regulatory question that this is an area that wasn't even, there wasn't any guidance on from FinCEN until 2012, 2013, and really doesn't start to get regulatory scrutiny until really about 2016, 2017. [00:25:20] Speaker 00: And I would just like to point out one thing about the record to the court. [00:25:25] Speaker 00: You have this government mix in 2019. That's, almost eight years after the acts that they attributed to Mr. Sterling off and registering the domain name. In that eight-year period, there's no evidence in the record of him operating Bitcoin Fog. And I think the problem, again, with Count One's conspiracy charge is if that event was improper on Count One, even if you find it, proper on count two. [00:25:59] Speaker 00: If you just find it proper on count two, you have an $86 money laundering charge. The problem we have with count one is because of the conspiracy charge, then that brings in all the chain analysis reactor evidence. If count one, if venue's not proper for count one, most of this case falls apart. because most of the evidence is just co-conspirator statements or chain analysis reactors saying Silk Road in 2013 sent X amount of dollars to Bitcoin Fog and got Y back. [00:26:33] Speaker 00: But I do see I'm over my time, Your Honors. [00:26:36] Speaker 02: As long as we have questions for you, we'll give you more time. On count four and venue, If Bitcoin Fog was required to file a registration document in D.C., why is the undisputed failure to make that registration not an element of the federal failure to register as required by the federal statute, 1960B1B? [00:27:10] Speaker 02: Why isn't that sufficient to establish venue in D.C. under the federal statute? [00:27:15] Speaker 00: Well, the count for we're talking about a D.C. municipal money. [00:27:21] Speaker 02: I'm sorry, but I'm actually really focusing here on count three and its interaction with the. [00:27:29] Speaker 02: The requirement of registration in any state. [00:27:35] Speaker 02: That one of the ways that one could violate the federal right in 1960. [00:27:40] Speaker 00: And they state that in the indictment. I think that's a violation of the D.C. municipal statute. I think if you have the violation of the D.C. municipal statute, then you. [00:27:55] Speaker 00: are okay on count three but i think the problem is uh there's zero evidence that bitcoin fog was operating in dc i think what's striking to me about the use of this dc municipal statute against somebody who was in sweden at all most of the relevant times is um he's, there's no evidence that Bitcoin fog is actually operating in DC in terms of being a business in DC. [00:28:27] Speaker 00: I mean, if somehow, I mean, what's remarkable to me is that the DC municipal statute is sort of being construed to have a global reach. And I think it's that stretching it so far, you, you get into due process notice problems, um, with it because there's no the servers weren't in dc there's no personnel in dc there's no communications in dc so i don't see how you can get a violation of a dc municipal money transmission statute on this record i think mechanically would you say logically you know assuming age four to three i think that's i think you're right on that Right. [00:29:11] Speaker 00: What you're saying mechanically, if there is the money transmission, he didn't get the license in D.C., then you can use it as the predicate for for three in 1960. [00:29:21] Speaker 00: But I think the problem is, is that it's you're really just stretching the you have to read the municipal statute in a creative way to say that. DC, you know, Bitcoin fog is operating out in DC. I just, I can't get that on a plain common sense reading of the statute. I don't think when it was passed, it was intended that way. I think it's just a, you know, another thing that they're trying to use as a convenient hook to get random. [00:29:51] Speaker 03: You have more questions? [00:29:56] Speaker 03: All right. Thank you. We will give you some time on rebuttal. Thank you, Your Honor. [00:30:04] Speaker 05: May it please the court, Jenny Ellickson for the United States. Sufficient evidence supported the jury's venue findings as to each count. And at the start, I'd like to say this is a sufficiency of the evidence question. And the question is whether the jury could have found by a preponderance of the evidence that venue was established. So I'll start with count two, the substantive money laundering count. And Venue, in this case, for that account, was driven, I think, largely by 18 USC 1956 I3 that specifically provides that a transfer of funds from one place to another shall constitute a single continuing transaction in any person who conducts Any portion of that transaction may be charged in any district in which the transaction took place. [00:30:49] Speaker 05: So here, the relevant transaction was the transfer of Bitcoin from Bitcoin Fog Service, wherever they were, to Agent Price in Washington, DC. [00:31:00] Speaker 05: And to address the representation that Agent Price made two days before Bitcoin Fog sent those funds back, the jury could reasonably infer that Sterling Hoff saw that message. I think there's ample evidence that supports the inference that he was the same person as his alter ego who was posting on Bitcoin Fog. And that alter ego on Bitcoin Fog repeatedly touted this customer messaging function that Agent Price used to send the message on Bitcoin Talk, said, we have been using this for all of our communications. [00:31:41] Speaker 05: I think the jury could reasonably infer that that was correct. I mean, Bitcoin Fog is running a large-scale international business. It received over time more than 521,000 deposits of Bitcoin. It needed, in order to keep its customers happy and to keep generating the money, it needed to be responsive. I think you could also, you know, infer from other evidence in the record, you know, that Sterling Off was somebody who had spent the large majority of his time online. [00:32:12] Speaker 05: And Bitcoin fog was clearly a central focus of his life. And so the idea that this message would have gone two days unread, I think, is the jury could reject that inference and find the opposite. [00:32:27] Speaker 05: And then with respect to the conspiracy count, I think the Agent Price's transaction is the funds sent back to Agent Price were acts in furtherance of the conspiracy, as were the status updates that Bitcoin Fog transmitted back to Agent Price, kind of assuring him that things were going well, that payment was going through. These are things that Bitcoin Fog communicates to people to, again, raise confidence in the service. And when Bitcoin fog sent that transaction, Sterling may not have known that it was going to DC. [00:33:01] Speaker 05: But again, this is a large scale international operation. It was benefiting from the fact that the internet allows you to engage in conduct in places that are geographically far from where you are personally physically located. [00:33:15] Speaker 02: And I have a question again about counts three and four. So those counts are different because it's one thing to say you're operating an online business with global scope. And if you commit a crime through an online transaction, that crime is going to be subject to prosecution where part element of it occurs, where conduct necessary to show it or conduct that supports it occurs. [00:33:50] Speaker 02: That seems like a different point from the point that if you operate a money transmission business from Sweden, and you do any transaction with someone in DC or anywhere in the United States, that one transaction is, even if the transaction itself, completely lawful. [00:34:21] Speaker 02: If you haven't registered with FinCEN before you do that, you're criminally liable under count three. [00:34:29] Speaker 02: If you haven't registered with the state authorities under the DC code, you're criminally liable for having done that one transaction. [00:34:39] Speaker 02: Is that your theory? [00:34:40] Speaker 05: Well, I do think that the jury could reasonably infer that Sterling and Bitcoin Fog were engaging in business and operating in DC. I think it wasn't just the agent price transactions. Also, there was another undercover FBI analyst who conducted undercover transactions in 2016 as well. [00:35:02] Speaker 02: But you're not arguing that there's a two transaction threshold. I mean, is there a difference? between engaging in a transaction that gives rise itself to criminal liability and conducting one transaction as the basis for, under the statute, conducting an unlicensed money transmitting business in D.C. Like, when you think of... [00:35:32] Speaker 02: just in sort of common sense terms when you think of needing to get a business license to operate in a place it's it's a little bit more like that's where you're doing your business that's where your business is cited not where some of the transactions might touch but where your business is cited and you know there's some language in in the dc code and in the federal statute that supports that. [00:35:59] Speaker 02: You know, no person shall engage in the business of money transmission in D.C., not do a money transmission transaction. [00:36:09] Speaker 05: Yeah, I understand what your honor is saying, but I don't think that the statutes require kind of a physical presence requirement. [00:36:16] Speaker 02: But not physical presence, even like a substantial, you know, nerve center or... [00:36:24] Speaker 02: or outpost or something more than just serving a customer who lives there and who reaches out. It's interesting that money transmission in the DC code refers to saving money for transmission or transmitting money within the United States. In other words, the defendant would have to have received money for transmission within the United States, have to have been in the United States when the business received money, or transmitting money within the United States. [00:37:06] Speaker 02: And the business did neither of those things, didn't transmit money within the United States, transmitted money from Sweden to the United States. So there's just a sense of like, some kind of virtual or actual presence. [00:37:22] Speaker 02: So, I mean, if the U.S., if a U.S. business is sending, you know, doing a money transaction with Azerbaijan and Azerbaijan said, if you're not registered, you have, you know, you have a million dollar criminal penalty. Really? That's the position of the United States. That's completely fine. Consistent with due process, consistent with the venue clause of the Constitution. [00:37:45] Speaker 05: Well, I think that the jury could hear and infer that Bitcoin fog was, that it wasn't just these two transactions. Maybe, you know, DC aside, if we're looking at the United States with the FinCEN requirement, if you have an international business that is doing 521,000 deposits and 693,000 withdrawals, you know, he is posting in English on Bitcoin talk. [00:38:10] Speaker 05: I think in his exploit post, which he made under his own name, he refers to the fact that you can use TOR to evade even U.S. law enforcement, indicating that he understands that his service may be especially attractive to people in the United States. But I'd also like to just push back on the idea that count three depends on this court finding that he had a registration obligation in the United States and in DC. I will say I don't understand him to have contested that in his briefs. But even if this court decides to reach that issue, Under 18 USC 1960 B1C, that does not rest on kind of a formal registration requirement. [00:38:51] Speaker 05: That instead says that a money transmitting business is unlicensed if it otherwise involves the transportation or transmission of funds that are known to the defendant to have been derived from a criminal offense. [00:39:03] Speaker 02: Right. So there is a piece in the federal statute that basically says there's no such thing as a licensed criminal transaction. And so if you're engaged in a criminal transaction with the United States, then under FinCEN, you're unlicensed. I get that. You don't have that theory for the DC requirement. [00:39:24] Speaker 05: For the DC requirement, that's right. The DC requirement is a registration license requirement. [00:39:30] Speaker 02: And a DC requirement depends on engaging in the business of money transmission, which is defined as receiving money or transmitting money, receiving money, uh, for transmission or transmitting money and doing that activity in the United States? [00:39:48] Speaker 05: Yes. I do think it's a practical matter that it is, in fact, incumbent on businesses that are engaging in money-transmitting business throughout the United States that they, in fact, register in the states in which they're operating. I suspect that PayPal has registered basically everywhere in the United States that they would be required. [00:40:07] Speaker 02: And also everywhere in the world. [00:40:09] Speaker 05: I don't know about that. I'm certainly not an expert in international law. But I think that it is something that this is somebody who's running an internet business and is reaching into the United States and is doing business with United States customers. I think they are subjecting themselves to US law, to state law, to DC law. [00:40:33] Speaker 02: So is that right? If I'm running a bank in San Antonio, Texas, and some of my customers use Zelle or Zelly, I never actually know how that's supposed to be pronounced, to transfer money, and some of the customers are in DC, then my San Antonio-based bank has to file for a DC money transmission license before I can deal with that Zelle transaction. Yeah, again, I don't want to kind of give business advice to the business in San Antonio, but I do think here the jury found on instruction— So we don't know what the pattern of conduct is with respect to banks within the United States or money transmission businesses in the United States, whether they have every state and local license that they could possibly have. [00:41:18] Speaker 05: I have—I understand informally this is— I have looked into this a little bit informally, and I understand that the big money transmitting, if you're engaged in money transmitting, it is common to seek registrations everywhere, and that some businesses find some jurisdictions sufficiently burdensome that they, in fact, avoid doing business with customers in those jurisdictions because they don't want to have to comply. And that is something that obviously Bitcoin Fog, if Bitcoin Fog had any aversion to doing business in the United States or doing business in D.C., they could have asked the very kinds of questions of their customers that legitimate businesses, Bitcoin businesses, do to try to find out more about them and where they're operating if they said, you know, and this again goes to the idea, I think, that there was no manufactured venue here because Bitcoin Fog was open to all comers, even if manufactured venue is a viable theory. [00:42:13] Speaker 05: And I would like to, you know, I know this court, we've moved on from counts one and two, but with respect to the role of the agent in all of this, I think this court's decision in United States v. Sitzman from 2018 is quite analogous to what happened here with the role of the agent being the initiator of a wire from Florida to D.C. where the agent asked the co-conspirator of the defendant to send the wire. Sorry, it wasn't an agent. It was an agent asked a cooperator in DC to ask the wire he sent to DC, and the co-conspirator did. [00:42:50] Speaker 05: That seems analogous to the situation here. [00:42:53] Speaker 05: But I do want to make sure that I've answered the court's questions with respect to counts three and four also. So if the court has further questions about that or about the other issues in the case, I'm happy to address them. [00:43:06] Speaker 03: I wanted to ask you briefly about the Mazars expert testimony. Yes. [00:43:15] Speaker 03: You said it was likely, in comparing the IP addresses, that it was likely the same user using both accounts based on the overlap. [00:43:29] Speaker 03: What was the reliable basis for that? [00:43:35] Speaker 03: Conclusion that was likely. I didn't see testimony about how rare the number of overlaps is, how ordinary, you know, how many overlaps are there when there's ordinary folks doing it. They're still separate, but they're on the same VPN or Wi-Fi or whatever. Yeah. [00:43:54] Speaker 03: What was the basis in the record for that, telling the jury it was likely that these two were the same person? [00:43:59] Speaker 05: Well, I think there were four times where she gave testimony that was similar to that. And at least one or two of the times, she did provide some information for some additional basis. for explaining, I think, once she said when it was only a minute apart, she said, you know, the fact that these are only a minute apart and they're both into cryptocurrency exchanges, that seems to me that it's likely. And then another time it was when it was an IP address that logged into the Shoremont Liberty Reserve account and then the Sterling Ops Liberty Reserve and then the Shoremont account again. [00:44:35] Speaker 05: And she said that that's sandwiching. So those were some of the things that she was pointing to these additional factors to suggest that it was likely. [00:44:43] Speaker 03: It likely assumes some sort of baseline understanding of what are the chances that that could happen by chance. [00:44:53] Speaker 03: It just happens in the universe. [00:44:57] Speaker 03: And so likely is a comparative term. And normally when you hear that testimony from an expert, there's some baseline as to, you know, ordinarily you don't see this type of overlap. [00:45:10] Speaker 03: You know, it's one in a thousand times you can have this kind of overlap and it's not the same person. But there's nothing like that here. There's just no framework for the likely conclusion. She sort of spells out, here's some facts I saw. And so they must be likely because I saw these facts. And that seems to me... [00:45:29] Speaker 03: The type of thing that Daubert might have very much been, he said Daubert, I might have that wrong too, but Daubert might have been designed to prevent someone coming in and saying, I saw A, B, C, D, and E. And in my view, that's a likely thing without any framework for reference. [00:45:46] Speaker 05: I think that when she talked about how quickly IP addresses cycled, IP addresses of different types cycle, and I think the fact that the accounts had this connection, I think this is something that the district court could reasonably conclude would go more to weight than admissibility. And certainly, Sterling Off cross-examined her extensively about the fact that multiple- There definitely was cross-examination on that. [00:46:08] Speaker 03: But the whole point of the Daubert gatekeeping function is that we don't let everything in and let it all be argued about weight, that there has to be some at least reliable basis for the conclusions, reliable enough that we can tell the jury this expert is an expert and is giving you information based on expertise and i'm still struggling to understand and the most important part is is not just i saw this happen this happened this happened this happened that's like witness testimony the expertise was in her conclusion then it was likely that they were the same person And so I'm going to repeat myself here. [00:46:58] Speaker 03: I don't know how we know it was likely or not. She gave no information. And I get there was cross-examination on that. But should it have been let in the door anyhow? That's the point of the Dalbert process. [00:47:12] Speaker 05: Yes, and I guess what I can point you to is in her testimony when she talks about the different types of IP addresses and how quickly they cycle. But I agree with you that the record is what it is. If this court has concerns about the reliability of that small piece of her testimony, I think it was only She had four fairly quick opinions. Most of her testimony, even on the IP addresses, was just describing what the data said. [00:47:44] Speaker 03: That's my point, is that the expertise, I mean, anyone could sort of say, it's like a fact witness. Here's these transactions I'm seeing. The expertise is in the conclusion, the culling of the information into a conclusion. And it was, this was your evidence on identity, right? [00:48:02] Speaker 05: Oh, I disagree with that. I think there was substantially more evidence on identity than this. I'm happy to kind of- Substantial? Oh, yes. Oh, yes. I'm happy to walk through. So before Mazars even testified, the jury had already heard about the layering transactions that went from Sterling Offs own financial accounts to purchase the domain name associated with Bitcoin Fog. That tracing came in both through Agent Leo Ravinsky's testimony and through Luke Scholl's testimony. [00:48:39] Speaker 05: The fact that he made the first deposit into Bitcoin Fog before Bitcoin Fog was even announced and that he did that from his personal account. [00:48:48] Speaker 05: That was also evidence had nothing to do with the IP addresses. He made additional early deposits into Bitcoin Fog through these layering transactions. Also, and this doesn't relate to any IP address expertise, on the same day that he, the jury could infer that he purchased this domain name, an IP address in Gothenburg Sweden, where he lived, access to the Shoremont Liberty Reserve account. That's just a fact. That's not opinion testimony. [00:49:19] Speaker 05: It is something that Mazar has addressed in her testimony, but it's just saying what the IP address record said. There's also the fact that he, through his personal Bitcoin talk, account, engaged in communications with the owner of Blind Bitcoin about a month before he actually launched Bitcoin Fog about wanting to acquire Blind Bitcoin. And then later, his alter ego on Bitcoin Fog references how he'd been following the Blind Bitcoin project. He also had his exploit messages under his personal account, where he was encouraging the use of Silk Road, touting Tor for privacy. [00:49:55] Speaker 05: He told a friend five months after Bitcoin Fog launched that he gave up a side project because some other things were yielding more cash. And then there's all of the financial information about how he had $1.8 million worth of Bitcoin that came into 40 different financial accounts. that he had $500,000 in Bitcoin on his phone, including much of that in an account called Straight Outta Mint. That account in August 2020 received a $280,000 Bitcoin deposit directly from Bitcoin Fog. That's at the appendix 3937 to 38. So none of that evidence had anything to do with the Mazar's IP address opinions. [00:50:39] Speaker 05: Even the fact that there were some IP addresses that were common IP addresses for these layering transactions, it's just a fact that those were, you know, that one minute one logged into one account and then the next minute it logged into another account in the chain. And a jury who sees that evidence is going to draw the common sense inference that, you know, given all of these facts, that that is further evidence that it was Sterling off controlling both accounts. [00:51:09] Speaker 01: Isn't it the case that all of that factual evidence would be clearly admissible and really what Mazars was doing was just... [00:51:25] Speaker 01: kind of connecting dots between clearly admissible factual evidence. [00:51:32] Speaker 05: Yes. I think there's no dispute that the underlying IP address log information would be admissible either way. That was an opinion testimony. She was just basically putting before the jury, he logged into this account, and then he logged into this next account in the transaction where the same IP address logged in one minute later. You know, even if even if this court has concerns about the reliability of that kind of very small sliver of what she said, I think, you know, the jury probably would have drawn the same inference based on common sense. [00:52:02] Speaker 05: And, you know, what people generally know about IP addresses and educated them about what was what it all meant, that it was likely. [00:52:12] Speaker 03: Yes. That was part of maybe the pinnacle of her testimony. [00:52:16] Speaker 05: Yes. Now, that Sterling Hoff on cross-examination, he pointed out all of the reasons why they could take a different view of the evidence and why, in his view, they should take his view of the evidence and that these could be two completely unrelated people logging in. [00:52:32] Speaker 05: So I think that the district court was within its broad discretion in determining that her testimony was reliable. But even if this court hasn't- [00:52:41] Speaker 03: district court make that determination in this case? [00:52:44] Speaker 05: He heard her Daubert testimony and he didn't specifically announce, you know, he didn't make a specific detailed ruling. But the fact that he allowed her to testify, and I believe he qualified her as an expert on these things. And so I think that that indicates... Where did he qualify her as an expert? I think, I can't remember if it was the beginning of her trial testimony, but I think there, I think, you know, she was, she was admitted, he admitted her as an expert. [00:53:10] Speaker 03: No explanation for his conclusions as to... [00:53:13] Speaker 04: reliability, expertise. Yes, no, that's right. He didn't... There's also no objection at that point. Yes, there was no objection. [00:53:20] Speaker 05: And I think that, honestly, Mazar's was sort of a... She was... The focus of the expert back and forth was really on the reactor evidence and the blockchain analysis experts. And that was really where, you know, the parties and the court were focusing their attention. And I think Mazar's was, you know, it was... [00:53:43] Speaker 05: It was not something that was a focus of... There's definitely objection. [00:53:47] Speaker 03: There's a whole reason there was a Daubert herring. She was put into the Daubert herring. So they definitely objected to her expertise. [00:53:55] Speaker 05: Yes, but I don't take them even in their brief... [00:53:59] Speaker 05: before this court, their briefing before this court, to be raising the concern that Your Honor has raised about the opinion piece of it, the likely testimony. What I understand their objection to be is her use of these overlap windows, which were really just something she used to filter the data. And I don't understand them to have raised this different objection that Your Honor has raised. So I think If the court did want to go there, I think it would be a plain error thing and perhaps an issue that the court is noticing on its own. [00:54:32] Speaker 05: I see that I'm over time. I'm happy to answer more questions from the court if you have further questions. [00:54:39] Speaker 03: Why wouldn't the government, when it's introducing evidence about not just child pornography, extremely abusive child pornography, There's no good child pornography, but there's extremely abusive. [00:54:55] Speaker 03: Why would you even have to say the words child pornography? Why wouldn't you just say stipulate this is violated in federal law? This is a violation of federal law. [00:55:08] Speaker 05: Well, I think there was evidence that one of the things that we needed to potentially show is that he that Sterling off knew or was willfully blind to the fact that Bitcoin could be engaging in this kind of conduct. [00:55:20] Speaker 03: And I know the indictment is all about drug money. I mean, you didn't the indictment isn't about money laundering. [00:55:27] Speaker 03: for violations of federal law generically or even different categories of violations of federal law. This is all about a drug money conspiracy. And then you come in at the end and you sort of say, well, you've got this. [00:55:44] Speaker 03: explosive information here about a teeny tiny transaction um that wasn't it was only money going out it wasn't even money coming in that involved a federal the federal offense that's not charged in the indictment well i just it's absolutely toxic and nuclear when raised before a jury [00:56:06] Speaker 05: So I actually disagree with the idea that this wasn't covered by the indictment. This was offense conduct for count three going to the 1960 B1C count, because that count required the government to prove that he was engaging in activity that used to promote or support unlawful activity. And it didn't require specification and the indictment about what type of unlawful activity. So the government could prove that. [00:56:33] Speaker 03: The government's arguments tie it to the jury solely for count three. [00:56:39] Speaker 03: They argue it generically. [00:56:40] Speaker 05: No, because I think it was also relevant to other counts. And I can walk through the probative value for the other counts as well. But I also want to push back on the idea that there was something very inflammatory. [00:56:53] Speaker 03: Of course, everybody knows there is. [00:56:57] Speaker 03: That's why there was any limitation at all in the first place. But you don't even need to name it as child pornography. We all know why the government wants to do that. But it seems to be the very reason that it shouldn't be done in front of a jury. [00:57:11] Speaker 05: Well, child pornography was horrible stuff. It was actually already in the case before the welcome to video evidence came in. [00:57:17] Speaker 03: There was a loose reference at one point way back that that money could come in. But in fact, this money didn't come in. It only went out. [00:57:25] Speaker 05: No, but he did in his exploit post, he wrote an exploit post not too long after Bitcoin launched where he said that you can use Tor to purchase drugs and, unfortunately, child pornography. That indicated that was already in the case. [00:57:48] Speaker 05: Yes, but it still shows that he had an awareness that the dark net was being used for... I have an awareness of that. [00:57:57] Speaker 03: Everybody has an awareness of that. That's why there's a reason that those transactions are done on the dark net. But that seems to me not much of any justification at all. or the decision to, it's not whether the evidence could come in for point three. The question is why the government wanted to reference it as child pornography. [00:58:19] Speaker 05: I think as a factual matter, that is one of the types of illegal conduct that he was furthering. [00:58:27] Speaker 03: All you needed to say was there was a stipulation. All you needed to say was it was a violation of another federal law. [00:58:36] Speaker 03: that the connection... It would have made the connection. It would have satisfied count three. You could have argued, see, here's another instance. The timing of it is more recent. [00:58:45] Speaker 05: I think the connection to the exploit post meant that the specific type of criminal conduct was relevant, but also the fact that the reference to child pornography kind of stripped of any details, I think really, you know, made the evidence kind of not that inflammatory. [00:59:00] Speaker 03: And certainly Sterling off repeated... It was argued by the government to the jury. It was... [00:59:07] Speaker 05: It is part of the story of what Bitcoin Fog was doing. And I think it was also when Sterling certainly in his cross-examination and in his arguments, he did underscore the fact that this was a small amount of money and that it only came out, that I think the jury would have weighed that against the fact that Bitcoin Fog had taken tens of millions of dollars from drug dealers. I think some jurors might be much more bothered by the drug conduct than by this small amount of money going out to a child pornography website. [00:59:41] Speaker 05: And the fact that because of the party's stipulation and the exhibits could not be more anodyne. There is nothing inflammatory at all about the exhibits. And I'm not even sure if there was an objection the first time that the act of child pornography was mentioned in connection with Welcome to Video or if it was just that the objection came in when it was going to be the exhibits and that the focus was really on the exhibits. Um, so I'm not, I'm not sure that, that, you know, it was the idea that child pornography kind of writ large was the problem. [01:00:16] Speaker 05: I think that the objections that the defendant was focusing on at trial were really that there was something about the, the titles and descriptions on these spreadsheets that created a problem. And, um, that was what the district, the district focused on and the government, you know, agreed to redact that material. Um, it wasn't, it wasn't the idea that kind of any mention of child pornography. [01:00:37] Speaker 03: One more question. Do you have any questions? [01:00:41] Speaker 03: I just want to circle back one more time to the venue. So the theory is that agent crisis transactions show continuation of a conspiracy. [01:00:57] Speaker 03: Given that all of the conspirators listed in the bill of particulars had ceased to exist outside the limitations period, What is the evidence in the record as to with whom Mr. Sterlingoff was conspiring at that time? [01:01:21] Speaker 05: I think that it is true that a lot of the evidence was from before July 2017, just because of the success that law enforcement had in shutting down some of these dark markets. But the jury could infer that basically when one dark net market goes down, another one pops up in its place. That's what happened with Silk Road and Silk Road 2.0. And in fact, there was at least one of the distributors on Silk Road who appeared to have migrated to the Silk Road [01:01:47] Speaker 03: That was all before the jury? [01:01:48] Speaker 05: Yes, that was in front of the jury. And so I think that- That's what I was trying to find out. [01:01:52] Speaker 03: How much evidence was there that replacements, either smaller ones grew or new ones came on? [01:01:59] Speaker 05: How much of that was before the jury? Yeah, so the jury did hear the evidence about the specific Silk Road users and then the shutdown of Silk Road and then the evidence of the Silk Road 2.0 users. And I believe there was at least one person who appeared to be the same. They had the same username, something like that. And so the jury could infer that basically the individual vendors on these dark net markets, they're not going away just because a particular dark net market shuts down. They're going to find another way to distribute their drugs on the dark net. [01:02:30] Speaker 05: And they're going to continue to use Bitcoin Fog because Bitcoin Fog is an effective way to hide their drug money. [01:02:37] Speaker 03: Just forgive my ignorance. Was the Silk Road only drugs or was it just general criminality? [01:02:42] Speaker 05: I think it was known the most for drugs, but they had all sorts of... Did you have to show a continuing drug conspiracy? [01:02:47] Speaker 03: Yes. It was principally drugs, but they also had, I think, other types of... So the continuation was based on the fact that there was what you called a Silk Road 2.0 doing transactions on Bitcoin Fog? [01:03:02] Speaker 05: Yes. And so these were users whose funds were being traced into Bitcoin fog. And the government presented evidence about what they were selling on Silk Road and Silk Road 2.0. And again, all of that evidence predates the 2017 date that is at issue for the statute of limitations. But again, I think that You know, the jury heard testimony that the dark net is a place where people are selling illegal drugs. [01:03:29] Speaker 03: And I think the jury could reasonably infer that- Do you identify a new conspirator within the statute, those within the statute of limitations period? [01:03:38] Speaker 05: I'm not sure. I can't think of one, but I don't think that that was required because, you know, a conspiracy charge can be with people known and unknown to the grand jury. And so the conspiracy can continue- Entirely unknown? [01:03:53] Speaker 03: There were no more knowns at this point. [01:03:56] Speaker 05: Well, I mean, I think there certainly was the conspiracy. And again, also, just to bracket this, none of this is a concern that I understand Sterling ought to have raised in his opening. [01:04:09] Speaker 03: They definitely raised this issue. I mean, tell me if I'm wrong about how all the conspirators, they're named, he did it again this morning. Yeah. all the conspirators that are identified are out of business outside the statute of limitations period. And so the government's theory is that the conspiracy that's within the statute of limitations, the conspiracy that can be lawfully charged is entirely with unknown conspirators. [01:04:35] Speaker 05: I think that it's I'm not sure that I would I can't think of anybody from the bill of particulars who where the evidence came in that it was after. [01:04:46] Speaker 03: And there was no evidence of replacements, actually. Again, you talked about replacements, but not within the statute of limitations. And you didn't talk about any replacements that would have been putting money into that could be. [01:05:01] Speaker 05: I mean, I think what we know is that Sterlinghoff was continuing to run the money. [01:05:07] Speaker 03: Well, no, he was continuing to make... Bitcoin fog was continuing to still make a lot of money. We know that. But this is a conspiracy. And so is there... [01:05:18] Speaker 03: Is there authority for having the conspiracy be just with unknown, unidentified people? [01:05:24] Speaker 05: I would also say that I don't think that there is any evidence that, and I don't think Sterling Hopp has attempted to present any evidence, that any of those conspirators where the evidence is from before 2017, that any of them withdrew from the conspiracy. [01:05:39] Speaker 05: So in order to show that somebody left a conspiracy, you have to show some kind of withdrawal. [01:05:45] Speaker 03: I mean, these are businesses. These aren't human beings. What if they just don't exist? [01:05:50] Speaker 05: Well, but some of them were, you know, the individual vendors who were happening to use certain darknet markets as the platform for selling drugs. But that doesn't mean that they didn't then migrate. [01:06:01] Speaker 03: That's for the government's proof here. [01:06:05] Speaker 03: Yes. On statute of limitations. You've got no, you cannot think of any record evidence within the statute of limitations period of an identified conspirator. [01:06:16] Speaker 05: Well, for the drug conspiracy, I mean- For the drugs, because that's what's charged in the indictment. I think that one thing that, I think this, obviously Agent Price is not a conspirator, but I think that Bitcoin Fog's handling, you know, continued willingness to, launder that transaction, believing him to be kind of potentially a new conspirator. [01:06:37] Speaker 03: That's just not a conspirator, though. [01:06:39] Speaker 05: No, he's not a conspirator. But I think it's, again, kind of information that allows the jury to draw this inference. And certainly, I think the fact that Bitcoin Fog was still making so much money when it had gotten so much money from these dark net markets before, I think, is in Indicia, if its profits still remained fairly high, I think that's an indication that it's operating in the same way that it always was with these customers coming in. [01:07:11] Speaker 03: Are there cases? [01:07:14] Speaker 03: Because some of this, I think, is sort of a product of the more modern era of crime commission on the internet. [01:07:23] Speaker 03: Are there cases where all of the non-conspirators are outside the limitations period and no others are identified? It's all unknown after that. I think it says that's okay that you're aware of. [01:07:37] Speaker 05: You know, I think that there certainly are conspiracy prosecutions where the government's never able to identify who in the real world the conspirators are because they have used the internet to kind of pull back. You know, for child pornography conspiracies, often the defendant will be conspiring with a lot of people on the internet, none of whom can be identified because they've hidden who they are in various ways. So I think that this would be, that would be probably the best analogy that I can draw. [01:08:06] Speaker 03: Thank you very much. [01:08:10] Speaker 03: Mr. Eklund, we'll give you the three minutes you asked for. [01:08:14] Speaker 00: Everyone in this courtroom that is using the internet right now is probably on the same IP address. [01:08:26] Speaker 00: That obviously doesn't make us the same people. And Judge Mellon, I think you made a very good point about computer scientists Mazarin, as she was introduced to the jury as a computer scientist, has no basis for making any kind of probabilistic determination as to whether or not Mr. Sterlingoff was more or less likely to be using these email addresses that they attributed to him solely through computer scientist Mazarin's novel IP overlap analysis. [01:09:10] Speaker 00: She admits that thousands of people could be using the same IP addresses. [01:09:15] Speaker 03: Your argument in your brief to us is not about this likely. [01:09:20] Speaker 03: explanation that she gave. You argue that it's the unreliability that she was relying on information from, I think, the IRS. Yes, IRS data. And then you argue a lot about the UTC, coding it in UTC time, whether that was reliable. [01:09:42] Speaker 03: But I don't recall You're arguing to us that this was impermissibly admitted expert testimony because of her categorization of the probabilistic categorization that she provided to the jury. But I was curious about that. [01:10:05] Speaker 00: We did cross around her error rate, and she said, I can't tell you my error rate. I can't cite any scientific peer-reviewed paper that this is accurate. This is the first time that I've done that. I think it follows from that the fact that you can't calculate a probability. [01:10:24] Speaker 03: It doesn't follow from that what you cross-examined a witness on at trial, that you have raised a legal argument about the basis for her probabilistic. prediction or characterization in your court of appeals brief? [01:10:40] Speaker 00: I would submit to the court I have because you can't calculate any kind of probability if you don't know the error rate. And I think that goes to its unreliability. And I think that's a core issue in this case across the Daubert or Daubert, however you say it. [01:10:58] Speaker 03: You can know error rate. That's the whole reason. That's how you decide what the probability is. is, and that's what you were cross-examining her on. I'm talking about the sort of comparative evidence that you would want to know what's likely or not. [01:11:15] Speaker 00: problem, I think, with her ad hoc methodology is that there is no way looking at it to make that determination. That's what I understood you to be getting at. That, to me, seems plain from its face, right? I don't know what more to say beyond what we said. It's unscientific. It's, you know, what we said. But I would like to address something with a response to what the government said. I think computer scientist Mazarin's testimony, expert testimony, overlap analysis is central to the identification. [01:11:48] Speaker 00: That trace that they referred to in 2011, where Mr. Sterlingoff allegedly purchases the domain name for the Clarinet website, that's entirely dependent on attributing control of accounts to Mr. Sterlingoff based on computer scientist Mazarin's IP overlap analysis. I think it's the second Mt. Gox account and then the third big account in that chain. It's very, very convoluted. [01:12:19] Speaker 00: This notion that there's an independent evidence IDing Mr. Sterling off outside of Ms. Mazarin's IP overlap analysis, I dispute. I don't see it anywhere. I think their case in terms of the identification turns entirely on her novel IP overlap analysis. I don't see how you get any identification of Mr. Sterlingoff as ,, as the person all the way at the end of this purchase of a domain name registration in Sweden in 2011 without that analysis. [01:13:03] Speaker 00: And I think the fact that you know the gatekeeping function of the district court didn't keep her out and she was put in front of the court as a computer scientist with all the authority of the fbi in this very very confusing case that's entirely almost entirely built on expert testimony no eyewitnesses no victims no corroborating evidence anywhere the government never bothered to get mr sterling off's computer from his apartment in sweden [01:13:34] Speaker 03: Okay, I think that's not really a legal argument before us. Do my colleagues have any more questions? No. Thank you, Your Honors. Thank you very much. The case is submitted.