WEBVTT - Judging Sam: After The Prosecution Rests 0:00:15.316 --> 0:00:20.716 Pushkin. Hey there, it's Michael Lewis. Before we get to 0:00:20.756 --> 0:00:22.636 this episode, I want to let you know that you 0:00:22.636 --> 0:00:25.916 can listen to each episode of Judging Sam The Trial 0:00:25.956 --> 0:00:29.476 of Sam Bankman Freed ad free by becoming a Pushkin 0:00:29.556 --> 0:00:33.516 Plus subscriber, and with your subscription you'll also get exclusive 0:00:33.516 --> 0:00:37.356 access to ad free and early bingeable podcasts like Paul 0:00:37.436 --> 0:00:42.236 McCartney's new podcast McCartney A Life and Lyrics, Malcolm Gladwell's 0:00:42.236 --> 0:00:46.156 Revision Is History, The Happiness Lab from Doctor Lorie Santos, 0:00:46.636 --> 0:00:49.876 and tons of other top shows from Pushkin. Sign up 0:00:49.876 --> 0:00:53.516 an Apple Podcasts or at pushkin, dot fm, Slash Plus. 0:00:57.076 --> 0:01:00.276 Welcome to Judging Sam, The Trial of Sam Bankman Freed. 0:01:00.476 --> 0:01:03.996 I'm Michael Lewis. Court is on a break until Thursday, 0:01:03.996 --> 0:01:07.516 October twenty sixth, the day we expect the prosecution to 0:01:07.556 --> 0:01:11.276 rest their case and the defense to begin there possibly 0:01:11.356 --> 0:01:15.316 even with the beginning of Sam Bekman Fried's testimony. I'm 0:01:15.316 --> 0:01:19.556 here with Rebecca Mermelstein, defense attorney, former prosecutor and partner 0:01:19.676 --> 0:01:23.236 at O'melvinie and Myers, and also with Lydia Jean Cott, 0:01:23.276 --> 0:01:27.236 our intrepid courthouse reporter. I should note we're recording this 0:01:27.316 --> 0:01:31.076 conversation on Monday, October the twenty third Lydia Jean, I 0:01:31.076 --> 0:01:33.556 imagine you have some questions you're dying to ask, Rebecca, 0:01:33.876 --> 0:01:35.916 and I understand you might have some for me too. 0:01:36.276 --> 0:01:37.756 Where do you want to start, Rebecca? 0:01:37.836 --> 0:01:41.556 I would actually love to start with you. The prosecution 0:01:41.876 --> 0:01:44.756 has pretty much wrapped their case, and I wonder, from 0:01:44.836 --> 0:01:47.196 a distance from how you've been watching, what stood out 0:01:47.196 --> 0:01:47.396 to you. 0:01:48.076 --> 0:01:51.476 I think that what stands out is really how overwhelming 0:01:51.636 --> 0:01:55.276 the evidence is. The prosecution has put on a very 0:01:55.356 --> 0:01:59.196 strong case. We've talked about before how many cooperating witnesses 0:01:59.196 --> 0:02:03.436 there are, but you don't know until they testify if 0:02:03.436 --> 0:02:05.236 they're going to be good witnesses, if they're going to 0:02:05.276 --> 0:02:08.236 be good at explaining what happened, if they're going to 0:02:08.276 --> 0:02:11.116 fall apart on loss examination. And we do know the 0:02:11.156 --> 0:02:13.476 answer to that now, and I think they were strong 0:02:13.516 --> 0:02:16.676 witnesses for the government. I think the cross examination did 0:02:16.716 --> 0:02:20.156 not buy and large undermine the core testimony, and so 0:02:20.196 --> 0:02:21.516 I think the government's done a good job. 0:02:22.436 --> 0:02:24.636 How do you feel the defence is done? You're now 0:02:24.676 --> 0:02:26.476 a defense attorney, so you can look at it through 0:02:26.476 --> 0:02:27.036 that lens. 0:02:27.156 --> 0:02:29.916 I am and I feel compelled then to preface it 0:02:29.956 --> 0:02:32.116 by saying, this is a really hard case to be 0:02:32.196 --> 0:02:35.756 the defense attorney in, and so there's only so much 0:02:36.036 --> 0:02:39.476 they can do. I think from a distance people often 0:02:39.516 --> 0:02:41.116 look at a trial and they look at the two 0:02:41.156 --> 0:02:44.236 sides and you say, well, sort of, who's the better lawyer. 0:02:44.276 --> 0:02:47.716 That's who's winning. But it's not a mock trial exercise. 0:02:47.796 --> 0:02:53.116 The two sides don't have equal evidence and ammunition, and 0:02:53.356 --> 0:02:55.436 the defense has to play the cards that they got dealt, 0:02:55.516 --> 0:02:57.996 and so often the deck is very, very stacked, and 0:02:58.036 --> 0:03:01.516 it's not really a battle of better lawyering. I don't 0:03:01.636 --> 0:03:04.996 think they've really scored a lot of points. Were there 0:03:05.076 --> 0:03:07.916 points that they could have scored and they haven't scored. 0:03:08.076 --> 0:03:11.156 It's hard to know from from this distance if there's 0:03:11.196 --> 0:03:14.276 more they might have done. But at the end of 0:03:14.316 --> 0:03:18.476 the day, they haven't really undermined I think the core allegations. 0:03:18.836 --> 0:03:23.396 To me, they haven't suggested that these cooperators are lying. 0:03:23.996 --> 0:03:25.956 And if these cooperators are telling the truth, he's going 0:03:25.996 --> 0:03:29.036 to get convicted. So I think it's not going well 0:03:29.156 --> 0:03:29.516 for them. 0:03:30.316 --> 0:03:32.636 One thing that stood out to me a lot about 0:03:32.716 --> 0:03:35.836 the prosecution is the extent to which they're really telling 0:03:35.836 --> 0:03:38.196 a story, like to the point where it feels like 0:03:38.236 --> 0:03:41.276 a movie almost. There was one moment when Nishad saying 0:03:41.316 --> 0:03:43.596 one of the cooperating witnesses, was on the stand and 0:03:43.636 --> 0:03:46.516 he talked about this heated conversation he had with Sam 0:03:46.516 --> 0:03:50.436 bankman Fried when he said he realized that Alameda had 0:03:50.436 --> 0:03:53.156 taken money from FTX that it couldn't pay back. And 0:03:53.236 --> 0:03:55.556 this conversation was on the balcony of this penthouse in 0:03:55.596 --> 0:03:59.316 the Bahamas, and the prosecutors showed a picture of the balcony, 0:03:59.356 --> 0:04:01.516 and then the picture was in the evening and they 0:04:01.556 --> 0:04:05.036 had Nishad explain where he was standing and like where 0:04:05.076 --> 0:04:07.516 Sam was. It didn't seem to be part of the 0:04:07.596 --> 0:04:10.156 legal making of the case, but it feel like for 0:04:10.196 --> 0:04:12.076 the screenwriters who are in the courtroom, and I think 0:04:12.116 --> 0:04:14.436 there were some, they were just handing them a scene 0:04:14.516 --> 0:04:16.996 on a silver platter. And I wonder what you think 0:04:17.036 --> 0:04:18.316 about that, Rebecca. 0:04:18.236 --> 0:04:20.996 Well, I totally agree with you. That's not a piece 0:04:20.996 --> 0:04:24.116 of evidence that's important to the key facts of the case, 0:04:24.196 --> 0:04:26.076 but it really does give you some of the color 0:04:26.596 --> 0:04:29.476 about being able to think back and sort of think 0:04:29.516 --> 0:04:32.436 about what it would have been like on this luxurious balcony, 0:04:32.796 --> 0:04:34.876 and I agree that the prosecution has done a nice 0:04:34.956 --> 0:04:39.436 job of bringing moments of drama to the trial. People 0:04:39.796 --> 0:04:41.916 think criminal trials are all going to be a few 0:04:41.956 --> 0:04:45.556 good men and big moments, got you moments, and really 0:04:45.636 --> 0:04:47.876 actually it's often a slog of evidence that you have 0:04:47.916 --> 0:04:50.396 to get through. But they have done a nice job 0:04:50.436 --> 0:04:53.276 of finding those kinds of moments. One I really liked 0:04:53.756 --> 0:04:57.716 was that the lawyer for FTX was testifying mister Son, 0:04:58.196 --> 0:05:00.716 and he was describing a conversation that he had with 0:05:00.756 --> 0:05:05.316 Sam bankman Fried after Apollo had it started to ask 0:05:05.396 --> 0:05:09.116 questions about the missing money, and in mister Son's recitation 0:05:09.396 --> 0:05:12.516 of it, he says, you know, Sam asked me for explanations, 0:05:12.556 --> 0:05:16.076 like what might we say about this? And Son's reaction was, well, like, 0:05:16.116 --> 0:05:17.476 you could try to say this, or you can try 0:05:17.476 --> 0:05:20.196 to say that, but these are not legitimate explanations, and 0:05:20.236 --> 0:05:22.036 he was clear with Sam that they're not legitimate, and 0:05:22.036 --> 0:05:24.916 Sam understood they were not legitimate. And then the prosecution 0:05:24.996 --> 0:05:28.316 immediately played a clip of Sam Bekminfried on kind of 0:05:28.356 --> 0:05:33.476 his post collapse press tour giving those explanations to a 0:05:33.516 --> 0:05:37.236 reporter and then turned off the tape. Circled back to 0:05:37.316 --> 0:05:40.196 Son and said, you know, is that the fake explanation 0:05:40.276 --> 0:05:43.676 you gave him? Essentially? You know, yes, no more questions. 0:05:44.876 --> 0:05:48.636 Prosecutors and all lawyers are thoughtful about trying to end 0:05:48.756 --> 0:05:51.956 on a note that's really strong. We know just about 0:05:51.956 --> 0:05:54.836 the way people's minds work, that there's a recency and 0:05:54.876 --> 0:05:56.956 a primacy, right the thing that happens first, that the thing 0:05:56.996 --> 0:05:59.316 happens last, and you want to really nail those moments. 0:05:59.356 --> 0:06:00.276 And they're doing a great job. 0:06:01.276 --> 0:06:04.516 You know, you just answered a question I had after 0:06:04.836 --> 0:06:07.876 it collapsed and Sam started doing all this media and 0:06:07.916 --> 0:06:10.676 the lawyers we're saying to me like, this is just 0:06:10.756 --> 0:06:15.156 not going to help. And I kind of thought, like, 0:06:15.236 --> 0:06:17.916 how could he make it worse? It was so bad already, 0:06:18.516 --> 0:06:21.356 and I wondered how that stuff would ever be used, 0:06:21.356 --> 0:06:23.836 And this was an example like how it gets used. 0:06:23.996 --> 0:06:25.796 Yes, I think a lot of us wondered if it 0:06:25.796 --> 0:06:27.836 would come back to bite him and predicted it would, 0:06:28.156 --> 0:06:28.636 and it did. 0:06:29.796 --> 0:06:38.236 Judging Sam will be right back, welcome back. What are 0:06:38.276 --> 0:06:41.276 the arguments for and against him testifying? 0:06:41.716 --> 0:06:46.796 Arguments against are the obvious ones. He has a right 0:06:46.876 --> 0:06:52.276 to remain silent. People are familiar with that idea from television, 0:06:52.436 --> 0:06:56.196 from movies, and he doesn't have any burden of proof. 0:06:56.276 --> 0:06:58.636 He doesn't have to do anything. And so what his 0:06:58.716 --> 0:07:01.996 lawyers are presumably trying to do is poke all kinds 0:07:01.996 --> 0:07:04.596 of little holes in the government's case to give themselves 0:07:04.716 --> 0:07:08.116 enough ammunition and closing to say, look, we don't know 0:07:08.196 --> 0:07:10.636 exactly what happened here, but we don't have to tell you. 0:07:10.876 --> 0:07:14.556 They fail to do their jobs. That's the story. If 0:07:14.596 --> 0:07:17.636 he gets up and he puts on an affirmative narrative 0:07:17.716 --> 0:07:21.076 by telling his own story, then the government gets to 0:07:21.116 --> 0:07:24.996 poke holes in that story. And even though that doesn't 0:07:25.076 --> 0:07:28.476 change the presumption, the government keeps its burden of having 0:07:28.516 --> 0:07:31.396 to prove its case beyond reasonable doubt. As a practical 0:07:31.436 --> 0:07:34.316 matter my experiences, the minute the defense puts on that 0:07:34.436 --> 0:07:38.796 kind of real affirmative story, you lose that presumption. It 0:07:38.836 --> 0:07:41.356 becomes really like, well, which one do I like more 0:07:41.436 --> 0:07:43.676 as between the two, And that's a very bad thing 0:07:43.716 --> 0:07:46.676 for a defendant. And of course he's made, as you say, 0:07:46.716 --> 0:07:50.116 a lot of public statements. The government has a sense 0:07:50.156 --> 0:07:52.756 of what story he might try to tell, so they're 0:07:52.796 --> 0:07:54.316 going to be armed and ready. If he tells the 0:07:54.316 --> 0:07:56.756 story he's been telling, and if he tries to tell 0:07:56.796 --> 0:07:59.756 a different story now, then it's a different problem, which 0:07:59.756 --> 0:08:02.316 is he's already locked in. He's already committed to what 0:08:02.356 --> 0:08:05.676 his explanation is in his big press tour. He can't 0:08:05.716 --> 0:08:08.876 now offer a third explanation because the government's going to 0:08:08.876 --> 0:08:12.076 come out after him with that too. So I think 0:08:12.076 --> 0:08:14.676 the downside in that respect is obvious. In terms of 0:08:14.676 --> 0:08:17.596 what the risks are to conviction. I think in a 0:08:17.636 --> 0:08:21.556 case like this where conviction is looking very likely, the 0:08:21.636 --> 0:08:24.836 other big risk of testifying is pissing off the judge. 0:08:25.356 --> 0:08:26.876 Yeah, that's what I wonder, right. 0:08:26.756 --> 0:08:28.436 And this is a judge who's been kind of cranky 0:08:28.436 --> 0:08:30.156 with him for a while. So you don't want to 0:08:30.196 --> 0:08:36.236 do that. If you testify and you tell a story that, 0:08:36.636 --> 0:08:39.276 by virtue of its verdict, the jury essentially says it 0:08:39.316 --> 0:08:41.796 doesn't believe. Right. If you get up and you say 0:08:41.876 --> 0:08:43.916 I didn't know this was happening, or I knew it 0:08:43.956 --> 0:08:46.516 but I didn't understand it, or I thought it was okay, 0:08:47.076 --> 0:08:49.676 and the jury convicts you anyway, then the jury has 0:08:50.196 --> 0:08:53.196 more or less said we think you were lying, and 0:08:53.236 --> 0:08:56.316 there are specific enhancements that's sentencing for having done that 0:08:57.036 --> 0:08:59.356 and more than that, you really then have a judge 0:08:59.356 --> 0:09:04.796 who says, sitting here a year later, after all of this, 0:09:04.956 --> 0:09:08.556 you're still not sorry. You still haven't accepted responsibility, and 0:09:08.596 --> 0:09:11.196 that's going to put you really in a very marked difference, 0:09:11.236 --> 0:09:13.996 I think, to all these cooperators in this case, because 0:09:14.036 --> 0:09:16.876 one thing that's really noticeable about these guys is how 0:09:16.956 --> 0:09:19.716 fast they started cooperating with the government, right, how quickly 0:09:19.756 --> 0:09:22.516 they came in and said, we did it, it was wrong, 0:09:22.596 --> 0:09:25.396 we knew it was wrong. And how remorseful they've been 0:09:25.436 --> 0:09:28.116 on the stand. I think how much they've owned that 0:09:28.196 --> 0:09:29.836 they were wrong and that they knew it was wrong. 0:09:29.996 --> 0:09:32.716 Not all cooperators are quite as good at that, And 0:09:32.756 --> 0:09:35.076 so you have everyone else saying we knew this was 0:09:35.156 --> 0:09:37.996 no good all along, We're really sorry, and the minute 0:09:38.316 --> 0:09:41.556 the wall came tumbling down, we tried to accept responsibility. 0:09:42.116 --> 0:09:45.116 And here you have Sam being a holdout, fighting and 0:09:45.156 --> 0:09:47.156 fighting and fighting against it, and I think you might 0:09:47.196 --> 0:09:50.836 see real additional sentencing exposure from doing it. So big risk. 0:09:51.756 --> 0:09:54.996 What's the upside. It's a hail Mary, right, it's a 0:09:54.996 --> 0:09:57.756 hail Mary. Things are not going well. I think if 0:09:57.796 --> 0:10:01.076 you asked one hundred white collar lawyers one hundred are 0:10:01.116 --> 0:10:04.276 going to tell you he's going to get convicted, and 0:10:04.316 --> 0:10:06.036 what can you do? At this point the government's proof 0:10:06.116 --> 0:10:07.756 is in. There's not much you can do left to 0:10:07.796 --> 0:10:09.716 undermine it. The defense has said they may need a 0:10:09.716 --> 0:10:12.476 week for their case, so maybe there's evidence. I'm not predicting. 0:10:12.836 --> 0:10:15.396 There may be things coming, But the hail mary is 0:10:15.476 --> 0:10:19.316 you put him on the stand. You either get the 0:10:19.396 --> 0:10:22.356 jury to believe that he was naive enough or not 0:10:22.356 --> 0:10:26.396 paying attention enough or sympathetic enough to not have known 0:10:26.436 --> 0:10:29.236 what was going on. I don't think that's going to 0:10:29.236 --> 0:10:32.756 be a likely outcome for him. You'll know from knowing 0:10:32.836 --> 0:10:36.756 him better, Michael, what he's going to seem like on 0:10:36.796 --> 0:10:38.996 the stand. But I'm not sure he's going to do 0:10:39.076 --> 0:10:41.716 himself any favors there either. But it's a hail mary 0:10:41.756 --> 0:10:43.156 because there's nothing left to do about that. 0:10:44.356 --> 0:10:46.996 What do you imagine the effect on his sentence could 0:10:46.996 --> 0:10:50.076 be if he gets up and he pisses off the judge. 0:10:50.356 --> 0:10:53.716 It's really hard to quantify. So the Sentence and Guidelines 0:10:53.836 --> 0:10:58.516 are a very long and complicated book that provides judges 0:10:58.516 --> 0:11:02.196 with recommended ranges for sentences for every kind of case. 0:11:02.276 --> 0:11:06.596 And so for every kind of crime there's a base number, 0:11:06.636 --> 0:11:09.676 and then there are pluses and minuses. If you sell 0:11:09.756 --> 0:11:12.236 drugs and you had a gun, that's a plus factor. 0:11:12.276 --> 0:11:14.596 If you only played a small role, that's a minus factor. 0:11:14.676 --> 0:11:17.676 And it's an algorithm, it pops out a number, and 0:11:17.716 --> 0:11:19.876 then there's a whole part of the algorithm that relates 0:11:19.916 --> 0:11:23.196 to people's prior criminal history, which won't be relevant here. 0:11:23.396 --> 0:11:25.756 So as a technical matter, you get a two point 0:11:25.836 --> 0:11:30.196 enhancement on that algorithm for having lied. And how much 0:11:30.196 --> 0:11:33.036 of a bump that is in mathematical months depends on 0:11:33.076 --> 0:11:36.236 where you started in the analysis. I think because of 0:11:36.236 --> 0:11:39.756 the loss amount here, the recommended sentence is going to 0:11:39.756 --> 0:11:42.116 be off the charts anyway, so it won't actually move 0:11:42.156 --> 0:11:44.716 the needle in terms of what the recommendation is. How 0:11:44.756 --> 0:11:47.836 much does it move the needle for the judge, it's 0:11:47.876 --> 0:11:51.236 really hard to say. Very occasionally judges in imposing sentence 0:11:51.276 --> 0:11:53.356 will say, I was going to do acts, but because 0:11:53.396 --> 0:11:55.556 of this, I'm going to do Why you might hear 0:11:55.596 --> 0:11:59.396 that here, you might not, you know, twelve to twenty 0:11:59.396 --> 0:12:01.636 four months. I'm making it up. No one really needs, 0:12:01.676 --> 0:12:02.596 but that's my guess. 0:12:03.756 --> 0:12:06.516 That's what you think you would add, Yeah, but on 0:12:06.596 --> 0:12:07.996 top of what thirty years? 0:12:08.516 --> 0:12:11.476 It is so hard to predict what Judge Kaplin is 0:12:11.476 --> 0:12:14.436 going to do here. I think the recommended sentence is 0:12:14.476 --> 0:12:16.596 going to be essentially life because the loss a mounts 0:12:16.596 --> 0:12:19.676 so high. That's not useful to anyone, right. I think 0:12:19.716 --> 0:12:22.316 it's going to be between ten and twenty five years. 0:12:22.836 --> 0:12:25.156 Huh, You've been right about a lot so far. 0:12:25.316 --> 0:12:27.036 Well, this one's very hard to predict. I've been wrong 0:12:27.036 --> 0:12:30.436 about sentencing many times in my career, Michael. 0:12:30.476 --> 0:12:33.596 I'm curious, as someone who has spent time with Sam Magmanfried, 0:12:33.716 --> 0:12:35.476 what do you think we could expect if he were 0:12:35.596 --> 0:12:36.316 to take the stand. 0:12:38.476 --> 0:12:40.996 You know, he's expected to take the stand. I would 0:12:41.036 --> 0:12:45.356 not be surprised if he changes his mind. I think 0:12:45.396 --> 0:12:49.876 his lawyers think that the likely effect of taking the 0:12:49.916 --> 0:12:53.796 stand is not twelve to twenty four months, but a 0:12:53.836 --> 0:12:56.316 lot more. I think they think the judge is just 0:12:56.956 --> 0:13:00.356 waiting to pounce on that. So he's going to be 0:13:00.396 --> 0:13:03.276 sitting there thinking am I going to get fifteen years? 0:13:03.276 --> 0:13:05.636 Am I going to get forty years? I think they 0:13:05.716 --> 0:13:08.476 feared that kind of effect. So there's a part of 0:13:08.516 --> 0:13:10.236 me that thinks if as a betting man, and you 0:13:10.276 --> 0:13:12.196 gave me the odds right now, and the odds are 0:13:12.196 --> 0:13:15.276 probably twenty to one that he's going to testify. I 0:13:15.396 --> 0:13:18.476 take those if he takes the stand. You know, it's 0:13:18.476 --> 0:13:21.836 tricky because if you look at the whole case, I mean, 0:13:22.956 --> 0:13:26.876 nobody disputes like what they agreed all agreed was true 0:13:27.396 --> 0:13:29.556 was so damning just to start with, right, all his 0:13:29.636 --> 0:13:32.796 money was never in FTX. It started out in Alameda, 0:13:32.996 --> 0:13:34.676 so the funds were mixed all the way back in 0:13:34.676 --> 0:13:39.796 twenty nineteen. The argument's all about when in state of mind. 0:13:40.076 --> 0:13:43.836 So it seems that the prosecutors and their witnesses have 0:13:43.996 --> 0:13:47.116 sort of agreed that people really started to wake up 0:13:47.116 --> 0:13:50.276 to this as a big risk in June when the 0:13:50.316 --> 0:13:52.956 crypto markets collapsing, And so I see, Sam is going 0:13:52.996 --> 0:13:55.676 to try to tell a story about how out of 0:13:55.756 --> 0:13:59.276 touch he was from June until November, and it's not 0:13:59.316 --> 0:14:01.716 going to be believable because he's got all these other 0:14:01.756 --> 0:14:04.756 people saying we told him. There are a couple things 0:14:04.836 --> 0:14:07.356 I've learned that have been interesting to me. One was 0:14:08.116 --> 0:14:10.876 the way he active avoided the meetings to discuss the 0:14:10.916 --> 0:14:15.316 subject that came up. Nobody made a huge deal about it. 0:14:15.356 --> 0:14:19.956 But that was interesting to me, and that it was 0:14:20.076 --> 0:14:24.236 almost like a willful act. I mean, if someone tells 0:14:24.276 --> 0:14:27.116 you that there's a bug and it looks like we're 0:14:27.156 --> 0:14:29.996 short sixteen billion dollars, but maybe actually know that we're 0:14:30.036 --> 0:14:32.956 short less than that. You're in that meeting, right, You 0:14:32.956 --> 0:14:36.796 don't avoid that. So he just has too much to 0:14:36.836 --> 0:14:41.236 explain how he will seem. I bet the jury after 0:14:41.276 --> 0:14:44.116 they listened to him for a couple of days, it's 0:14:44.116 --> 0:14:46.796 not going to change their decision, but it's going to 0:14:46.836 --> 0:14:49.516 make them feel a little differently about it. They'll see 0:14:49.676 --> 0:14:52.436 a person I don't see how they do anything but 0:14:52.476 --> 0:14:54.796 convict him, but it will change the tone of the 0:14:54.836 --> 0:14:58.716 conversation a bit. The whole thing's been riveting to me, Rebecca, 0:14:58.356 --> 0:15:02.596 I it's been interesting to me to watch the way 0:15:02.636 --> 0:15:06.556 a lawyer tells a story it's and also the way 0:15:06.956 --> 0:15:11.196 the court constrains the story it can be told. Let's 0:15:11.236 --> 0:15:14.476 say all the money's actually there, and after a sentenced 0:15:14.556 --> 0:15:16.236 John Ray says, oh, we found it all. It was 0:15:16.236 --> 0:15:20.636 all just in these weird accounts in Asia or or 0:15:21.316 --> 0:15:23.476 the things he bought are worth way more. The customers 0:15:23.516 --> 0:15:27.076 can get all their money back now that actually doesn't 0:15:27.116 --> 0:15:33.756 affect the legal outcome, right, nobody cares. Nobody cares. However, 0:15:33.756 --> 0:15:37.356 people when you tell the story story, people care. That's interesting. 0:15:37.556 --> 0:15:40.756 So it's not just all stolen and gone. It's there, 0:15:41.156 --> 0:15:44.156 but that you can't get that in the courtroom. 0:15:44.676 --> 0:15:47.476 I think you'll hear prosecutors say all the time thin 0:15:47.596 --> 0:15:50.756 to win, and what they mean by that is, don't 0:15:51.076 --> 0:15:54.076 take on problems you don't have to take on, don't 0:15:54.156 --> 0:15:56.876 prove more than you have to, don't open the door 0:15:56.916 --> 0:15:58.956 to some side, show that's going to be a distraction 0:15:59.076 --> 0:16:01.636 and confuse the jury. And this definitely feels to me 0:16:01.996 --> 0:16:04.476 like it's in that zone. Who cares, Right, it's still 0:16:04.476 --> 0:16:06.636 a crime either way. Lots of the money went where 0:16:06.636 --> 0:16:10.476 it wasn't supposed to. Don't sweat the details. Maybe we'll 0:16:10.476 --> 0:16:13.276 find out the bankruptcy could be relevant at sentencing, right, 0:16:13.316 --> 0:16:15.796 It will be interesting to see if at sentencing, assuming 0:16:15.796 --> 0:16:19.276 there's a conviction, I imagine you'll see an argument which is, look, 0:16:19.316 --> 0:16:21.116 this was a huge mistake, but at the end of 0:16:21.156 --> 0:16:24.116 the day, everybody got paid back. Maybe there was. You know, 0:16:24.236 --> 0:16:25.756 Sam will say I always thought it was going to 0:16:25.796 --> 0:16:27.916 work out. The prosecution will say he got really lucky 0:16:27.916 --> 0:16:30.156 with this completely other thing that he couldn't have predicted 0:16:30.236 --> 0:16:32.476 was going to save him. But bottom line, sort of 0:16:32.476 --> 0:16:34.876 everyone got their money back, and so that should be 0:16:34.916 --> 0:16:37.156 taken into account. I expect you'll see that argument. 0:16:38.076 --> 0:16:40.476 Yeah, but it doesn't seem like the judge would be 0:16:40.516 --> 0:16:42.756 that receptive to that argument. 0:16:43.356 --> 0:16:44.116 I don't think so. 0:16:44.276 --> 0:16:44.516 Yeah. 0:16:44.596 --> 0:16:46.996 I think the judge will say, you got lucky, and 0:16:47.036 --> 0:16:49.156 that's great, and I'm glad people got their money back, 0:16:49.196 --> 0:16:52.316 But what you did, right, had the risk of losing 0:16:52.396 --> 0:16:55.076 everyone's money, and you did it for your own selfish purposes. 0:16:55.076 --> 0:16:57.356 It didn't care, right. 0:16:57.956 --> 0:17:00.436 I got a question Rebecca that I it's just been 0:17:00.436 --> 0:17:01.836 flicked around in the back of my mind. So as 0:17:01.836 --> 0:17:04.596 all as started, what does it mean to prove intent? 0:17:05.596 --> 0:17:09.756 Intent to what? Intent to misappropriate the funds? 0:17:10.276 --> 0:17:10.356 Is? 0:17:10.876 --> 0:17:12.756 What are they What intent do they have to prove? 0:17:12.916 --> 0:17:16.236 Yeah, so it's an intent to defraud under the statute. 0:17:16.556 --> 0:17:20.116 But I think you're right that here it's really an 0:17:20.156 --> 0:17:25.156 intent to misappropriate the funds because well, I'm certain you'll 0:17:25.156 --> 0:17:27.556 see this in the jury instructions. A standard instruction in 0:17:27.596 --> 0:17:29.196 a case like this is going to be that it 0:17:29.236 --> 0:17:32.756 is not a defense if the defendant believed it would 0:17:32.836 --> 0:17:36.796 all work out in the end. Right. So if you 0:17:36.996 --> 0:17:39.196 work in a small company and you take money out 0:17:39.196 --> 0:17:41.676 of petty cash to pay your rent, but you know 0:17:41.716 --> 0:17:43.276 you're going to be able to pay it back, right, 0:17:43.316 --> 0:17:45.796 that's still stealing and that is going to be the 0:17:45.796 --> 0:17:47.796 instruction you're going to get. I would expect in this case, 0:17:47.876 --> 0:17:50.196 it doesn't really matter if Sam thought he could work 0:17:50.236 --> 0:17:52.156 it out in the end, as long as what he 0:17:52.196 --> 0:17:55.076 was doing was taking customer money that he wasn't authorized 0:17:55.116 --> 0:17:55.396 to take. 0:17:55.996 --> 0:17:56.516 Gotcha. 0:17:56.676 --> 0:18:00.076 So, best case scenario, what could Sam say on the 0:18:00.196 --> 0:18:02.236 stand that would help him. 0:18:02.636 --> 0:18:04.676 I'm not optimistic there's anything he could stay on the 0:18:04.676 --> 0:18:08.196 stand that would help him. I think that in a 0:18:09.196 --> 0:18:14.156 ideal world that is really hypothetical. A defendant could be 0:18:14.236 --> 0:18:18.636 so sympathetic that they could encourage a jury to nullify right. 0:18:18.716 --> 0:18:21.996 So in our system we allowed jury nullification. It's a 0:18:22.076 --> 0:18:25.236 very strange concept. We don't tell the jury they have 0:18:25.316 --> 0:18:27.036 the right to do this. In fact, if they asked, 0:18:27.076 --> 0:18:28.836 they would be told that they could not do this. 0:18:28.876 --> 0:18:31.716 They're instructed they must follow the law, that it is 0:18:31.756 --> 0:18:34.076 not for them right punishments for the judge, and they 0:18:34.076 --> 0:18:37.476 have to follow the law. But if a jury nullifies, 0:18:37.516 --> 0:18:39.836 if after the fact you discover that the jury got 0:18:39.876 --> 0:18:42.756 in the room and said, oh, yeah, that guy totally 0:18:42.756 --> 0:18:44.996 did it. But we really don't think this should be 0:18:44.996 --> 0:18:47.676 even be a crime, right, we think marijuana should be legal, 0:18:47.716 --> 0:18:50.796 So we're not going to convict him. That there's no 0:18:50.956 --> 0:18:53.716 recourse for the government. That's it double jeopardy and the 0:18:53.796 --> 0:18:56.996 case is over. So you could imagine a defendant, and 0:18:57.036 --> 0:18:58.836 I don't think this is a good case for that. 0:18:59.316 --> 0:19:02.316 You can imagine a defendant who was so sympathetic, so young, 0:19:02.516 --> 0:19:06.116 so naive, so compelling, that even though the jury really 0:19:06.156 --> 0:19:07.796 thought they had done it, the jury didn't want to 0:19:07.796 --> 0:19:10.196 convict them. Is that gonn happen here? I don't think so, 0:19:10.276 --> 0:19:12.476 and I'm not sure he has the right personality for that. 0:19:13.236 --> 0:19:15.556 But best case scenario, a defendant could hope for that, 0:19:15.996 --> 0:19:18.596 And so if I were his lawyer, I would tell 0:19:18.676 --> 0:19:22.436 him not to testify. I think I would understand why 0:19:22.436 --> 0:19:24.436 someone might feel it was the only alternative. But I 0:19:24.436 --> 0:19:26.516 don't think he's going to help himself. And there's so 0:19:26.636 --> 0:19:28.716 much to confront him with. He's made so many public 0:19:28.756 --> 0:19:31.356 statements that I think it would be a mistake, and 0:19:31.436 --> 0:19:34.836 I don't think he's going to because no one knows. 0:19:35.036 --> 0:19:38.156 But I think that he has learned his lesson now 0:19:38.236 --> 0:19:40.116 that he has seen at the trial the way in 0:19:40.156 --> 0:19:43.316 which the government has used his words against him, and 0:19:43.396 --> 0:19:46.876 he's going to decide to sit quietly. But we'll see. 0:19:47.236 --> 0:19:50.036 If he doesn't testify, what will happen? What will the 0:19:50.076 --> 0:19:50.556 defense do? 0:19:51.556 --> 0:19:54.316 They may have other witnesses they've suggested that they do. 0:19:54.436 --> 0:19:56.676 Many of their experts have been precluded, so I don't 0:19:56.756 --> 0:19:59.556 know who's left, but you can imagine them calling a 0:19:59.556 --> 0:20:02.476 few small witnesses or nothing. They'll do nothing. They could 0:20:02.476 --> 0:20:05.276 offer some documentary evidence if they wanted to, but they 0:20:05.276 --> 0:20:06.476 could have a very small. 0:20:06.196 --> 0:20:15.996 Case stick around. Judging Sam, we'll be right back, Welcome back. 0:20:16.276 --> 0:20:17.916 Now that your book's been out for a while, has 0:20:17.956 --> 0:20:21.036 anyone any characters in the book reached out about either 0:20:21.116 --> 0:20:22.956 what they're thinking about the trial or the book. 0:20:23.636 --> 0:20:28.156 Lots at least ten FTX people, most of them like 0:20:28.236 --> 0:20:33.476 Zaane Tacket or Ramnik Aora or pretty main characters in 0:20:33.516 --> 0:20:37.036