1 00:00:15,316 --> 00:00:15,796 Speaker 1: Pushkin. 2 00:00:21,516 --> 00:00:23,436 Speaker 2: For most of this year, I've been sharing some of 3 00:00:23,436 --> 00:00:26,156 Speaker 2: the interviews I've been doing for background research for my 4 00:00:26,196 --> 00:00:30,036 Speaker 2: book Going Infinite, the rise and fall of a new tycoon, 5 00:00:30,476 --> 00:00:33,196 Speaker 2: the tycoon being Sam Bankman Freed, the founder of the 6 00:00:33,236 --> 00:00:35,156 Speaker 2: cryptocurrency exchange FTX. 7 00:00:36,156 --> 00:00:36,916 Speaker 1: It's been a kind of. 8 00:00:36,836 --> 00:00:40,636 Speaker 2: Crazy journey, and this series has been an experiment for me. 9 00:00:40,836 --> 00:00:43,356 Speaker 2: I've always done these kinds of background interviews and their 10 00:00:43,396 --> 00:00:45,316 Speaker 2: interviews where I know it's not going to end up 11 00:00:45,316 --> 00:00:47,596 Speaker 2: in the book. I'm just trying to educate myself, but 12 00:00:47,636 --> 00:00:49,876 Speaker 2: I've never done them on stage, so to speak. 13 00:00:50,436 --> 00:00:51,956 Speaker 1: And I appreciate you listening in. 14 00:00:52,636 --> 00:00:55,676 Speaker 2: It's forced me to think creatively about these things, and 15 00:00:55,716 --> 00:00:58,276 Speaker 2: the experts i've talked to have been really gracious with 16 00:00:58,316 --> 00:01:02,436 Speaker 2: your time. Well, now the book's almost done and I 17 00:01:02,516 --> 00:01:05,596 Speaker 2: have just one more conversation to share, but maybe the 18 00:01:05,636 --> 00:01:09,436 Speaker 2: most important one I've done in this series. This is 19 00:01:09,436 --> 00:01:14,596 Speaker 2: on background from Against the Rules. I'm Michael Lewis. Sam 20 00:01:14,636 --> 00:01:17,876 Speaker 2: Bekman Freed faces federal charges of stealing billions of dollars 21 00:01:17,916 --> 00:01:23,156 Speaker 2: of customer funds. His trial is supposed to begin this fall. 22 00:01:23,196 --> 00:01:25,916 Speaker 1: But what sort of sentence is he likely to get? Really? 23 00:01:26,956 --> 00:01:28,676 Speaker 1: How are the prosecutors building the. 24 00:01:28,636 --> 00:01:32,196 Speaker 2: Case against him, and how can his defense team prepare 25 00:01:32,276 --> 00:01:34,796 Speaker 2: him for what looks like it will be a really 26 00:01:34,836 --> 00:01:42,076 Speaker 2: complicated trial. Rebecca Mermelstein is the very best person to 27 00:01:42,116 --> 00:01:45,996 Speaker 2: answer my questions, short of the prosecutors themselves, who aren't 28 00:01:46,036 --> 00:01:50,036 Speaker 2: talking to me on background or otherwise these days. Rebecca's 29 00:01:50,036 --> 00:01:53,156 Speaker 2: a defense attorney at the law firm of Omelviny and Meers, 30 00:01:53,516 --> 00:01:56,636 Speaker 2: but before joining the firm, she was a prosecutor in 31 00:01:56,676 --> 00:01:59,956 Speaker 2: the very southern district of New York. That's prosecuting Sam 32 00:01:59,956 --> 00:02:03,756 Speaker 2: Bankman Freed. My father used to practice law, and he 33 00:02:03,796 --> 00:02:06,836 Speaker 2: absolutely hated it. So I couldn't stop myself from asking 34 00:02:06,876 --> 00:02:09,116 Speaker 2: Rebecca what drew her to the profession in the first place. 35 00:02:10,076 --> 00:02:12,036 Speaker 3: I was always the kind of kid who liked to 36 00:02:12,316 --> 00:02:15,836 Speaker 3: argue the point. But somewhat coincidentally, I was a senior 37 00:02:15,876 --> 00:02:17,756 Speaker 3: in college. I thought I was going to take the 38 00:02:17,796 --> 00:02:19,996 Speaker 3: summer off, and my best friend wanted to go to 39 00:02:20,076 --> 00:02:22,236 Speaker 3: the public interest job fair, and she didn't want to 40 00:02:22,276 --> 00:02:25,116 Speaker 3: go by herself, and we went together and I dropped 41 00:02:25,196 --> 00:02:29,356 Speaker 3: one resume in the District Attorney's office paralegal box, and 42 00:02:29,436 --> 00:02:32,676 Speaker 3: I ended up there, and I fell in love with it. She, 43 00:02:32,796 --> 00:02:34,596 Speaker 3: by the way, also ended up there and then got 44 00:02:34,596 --> 00:02:37,036 Speaker 3: a PhD in art history. So it wasn't for everybody, 45 00:02:37,676 --> 00:02:40,236 Speaker 3: but I decided that's what I wanted to do, and 46 00:02:40,236 --> 00:02:42,036 Speaker 3: so I went to law school knowing I wanted to 47 00:02:42,076 --> 00:02:45,396 Speaker 3: be a prosecutor, and then I followed that path, and 48 00:02:45,476 --> 00:02:48,436 Speaker 3: for about twelve years I was a prosecutor in the 49 00:02:48,436 --> 00:02:49,556 Speaker 3: Southern District of New York. 50 00:02:50,556 --> 00:02:52,596 Speaker 2: Before we get to Sam Bankman Freed, I am kind 51 00:02:52,596 --> 00:02:55,836 Speaker 2: of curious, like, why did you fall in love with 52 00:02:55,876 --> 00:02:56,956 Speaker 2: it and your friend didn't? 53 00:02:58,636 --> 00:03:02,836 Speaker 3: For me, it is a combination of things, and one 54 00:03:02,956 --> 00:03:07,636 Speaker 3: is how mission driven it is. And so I think prosecutors, 55 00:03:07,756 --> 00:03:12,236 Speaker 3: and definitely prosecutors my home office, so to speak, really 56 00:03:12,276 --> 00:03:15,636 Speaker 3: feel that they work in pursuit of a particular mission 57 00:03:15,676 --> 00:03:18,756 Speaker 3: of pursuing justice, which is a little different than what 58 00:03:18,916 --> 00:03:22,836 Speaker 3: defense lawyers do because you don't really have a client 59 00:03:22,956 --> 00:03:25,276 Speaker 3: when you're a prosecutor. Your client is the people of 60 00:03:25,316 --> 00:03:27,476 Speaker 3: the Southern District of New York, the people of the 61 00:03:27,556 --> 00:03:28,316 Speaker 3: United States. 62 00:03:29,156 --> 00:03:30,756 Speaker 4: But your job is to do the. 63 00:03:30,756 --> 00:03:33,996 Speaker 3: Right thing, and it's not to win unless you think 64 00:03:34,036 --> 00:03:37,076 Speaker 3: winning is the right thing. So prosecutors investigate cases all 65 00:03:37,116 --> 00:03:41,236 Speaker 3: the time that they don't charge they decide either nobody 66 00:03:41,236 --> 00:03:44,156 Speaker 3: committed a crime or probably someone committed a crime, but 67 00:03:44,196 --> 00:03:46,996 Speaker 3: they don't have enough evidence to be sure, and that 68 00:03:47,196 --> 00:03:51,556 Speaker 3: mission really drives people's I think, interest in doing it. 69 00:03:51,756 --> 00:03:53,316 Speaker 2: You know, what you reminded me of is the way 70 00:03:53,356 --> 00:03:56,236 Speaker 2: I hunt stories that I will spend all kinds of 71 00:03:56,276 --> 00:03:58,196 Speaker 2: time on all kinds of things. 72 00:03:58,156 --> 00:04:01,036 Speaker 1: And then just decide there's not a story there and 73 00:04:01,596 --> 00:04:03,036 Speaker 1: move on. Here. 74 00:04:03,076 --> 00:04:05,476 Speaker 2: To guess what percentage of the things you thought about 75 00:04:05,796 --> 00:04:09,036 Speaker 2: prosecuting do you actually prosecute, I. 76 00:04:09,156 --> 00:04:13,116 Speaker 3: Would say maybe eighty percent sort of go somewhere and 77 00:04:13,156 --> 00:04:14,156 Speaker 3: twenty percent don't. 78 00:04:14,716 --> 00:04:16,236 Speaker 4: Okay, if I had to guess. 79 00:04:16,316 --> 00:04:18,836 Speaker 2: It's a reverse of my process. Twenty percent goes somewhere 80 00:04:18,876 --> 00:04:19,956 Speaker 2: in eighty percent don't. 81 00:04:20,236 --> 00:04:22,396 Speaker 3: But it's interesting that you say that you sort of 82 00:04:22,396 --> 00:04:25,916 Speaker 3: are interested in this finding the story, because I think 83 00:04:25,956 --> 00:04:31,396 Speaker 3: once prosecutors decide that they want to do it, crafting 84 00:04:31,436 --> 00:04:36,196 Speaker 3: that narrative, making something comprehensible to a jury, distilling things down, 85 00:04:36,876 --> 00:04:40,156 Speaker 3: appealing to people's emotions. Telling a good story is also 86 00:04:40,196 --> 00:04:43,636 Speaker 3: a big part of what lawyers do, and doing it 87 00:04:43,836 --> 00:04:46,676 Speaker 3: in a live format on a stage is a little 88 00:04:46,676 --> 00:04:49,596 Speaker 3: more like being a stage actor, because when you get 89 00:04:49,596 --> 00:04:52,836 Speaker 3: in front of a jury, the cameras are rolling, there's 90 00:04:52,836 --> 00:04:56,756 Speaker 3: no kind of redos, there's no pause, and that excitement 91 00:04:56,796 --> 00:04:59,036 Speaker 3: in that sense that you never one hundred percent know 92 00:04:59,076 --> 00:05:01,316 Speaker 3: what's going to happen. I think also is something that 93 00:05:01,356 --> 00:05:03,236 Speaker 3: people who want to be prosecutors think is fun. 94 00:05:03,876 --> 00:05:06,756 Speaker 2: I have a weird question for sure, if I've often 95 00:05:06,796 --> 00:05:13,636 Speaker 2: found this with reporters, like newsrooms, I've always been surprised 96 00:05:13,636 --> 00:05:17,756 Speaker 2: at how they can write quite bland stories about things 97 00:05:17,756 --> 00:05:20,476 Speaker 2: when they're out to dinner talking about them, they make 98 00:05:20,556 --> 00:05:23,836 Speaker 2: sound thrilling and fun. They actually have great material, and 99 00:05:24,076 --> 00:05:25,796 Speaker 2: they kind of leave it on the cutting room floor. 100 00:05:26,076 --> 00:05:27,796 Speaker 2: And I'm wondering if there's a phenomenal like that with 101 00:05:27,876 --> 00:05:30,196 Speaker 2: prosecutors where if you're sitting around they sit around talking 102 00:05:30,196 --> 00:05:32,796 Speaker 2: about a case, that it will be vastly more entertaining 103 00:05:32,836 --> 00:05:34,596 Speaker 2: to listen to that what goes on in the courtroom. 104 00:05:35,076 --> 00:05:35,836 Speaker 4: I don't think so. 105 00:05:35,956 --> 00:05:38,556 Speaker 3: I think the courtroom is a pretty exciting place, and 106 00:05:38,596 --> 00:05:40,996 Speaker 3: I don't think they leave things on the cutting room 107 00:05:40,996 --> 00:05:43,796 Speaker 3: floor that are the best parts. I do think you 108 00:05:44,316 --> 00:05:47,476 Speaker 3: will hear prosecutors when they talk about how to structure 109 00:05:47,716 --> 00:05:50,236 Speaker 3: trial evidence, how to prove a case. They'll use the 110 00:05:50,276 --> 00:05:53,156 Speaker 3: phrase thin to win. And what they mean by that 111 00:05:53,316 --> 00:05:59,516 Speaker 3: is a streamlined body of proof. That sometimes you have 112 00:05:59,556 --> 00:06:02,596 Speaker 3: a piece of evidence that can be used really effectively 113 00:06:02,596 --> 00:06:05,196 Speaker 3: for the prosecution, but it can be twisted exactly on 114 00:06:05,276 --> 00:06:08,716 Speaker 3: its head and used for the defense too. And now, 115 00:06:08,756 --> 00:06:11,516 Speaker 3: of course a prosecution is obligated to give the defense 116 00:06:11,556 --> 00:06:13,756 Speaker 3: all the materials it has, so the defense could call 117 00:06:13,796 --> 00:06:17,156 Speaker 3: that witness yep. But as a strategic matter, the defense 118 00:06:17,196 --> 00:06:19,436 Speaker 3: really doesn't generally want to call any witnesses because they 119 00:06:19,436 --> 00:06:21,436 Speaker 3: don't have a burden of proof. So as a prosecutor, 120 00:06:21,476 --> 00:06:24,836 Speaker 3: you may say, you know, I could call this witness. 121 00:06:24,876 --> 00:06:26,876 Speaker 3: They have this one great fact, but I don't need it, 122 00:06:26,916 --> 00:06:28,956 Speaker 3: and I'm opening up a can of worms, and so 123 00:06:28,996 --> 00:06:30,796 Speaker 3: we're gonna We're gonna sort of leave that on the 124 00:06:30,796 --> 00:06:31,596 Speaker 3: cutting room floor. 125 00:06:31,876 --> 00:06:33,676 Speaker 1: This is there's a version of this in writing. 126 00:06:33,716 --> 00:06:36,876 Speaker 2: It's the famous eb White victim that writing is about 127 00:06:36,916 --> 00:06:40,636 Speaker 2: killing your darlings. That you have this one pungent thing 128 00:06:40,716 --> 00:06:42,636 Speaker 2: that you just think has to be in and in 129 00:06:42,716 --> 00:06:44,516 Speaker 2: the end you realize you need to thin to win, 130 00:06:44,636 --> 00:06:46,996 Speaker 2: that you need to streamline it for the sake of 131 00:06:46,996 --> 00:06:48,756 Speaker 2: the story, and you've got to get used to that 132 00:06:49,276 --> 00:06:51,636 Speaker 2: feeling of getting rid of something you just really attached to. 133 00:06:52,876 --> 00:06:55,516 Speaker 2: You just said something that I kind of knew but 134 00:06:55,596 --> 00:06:59,756 Speaker 2: I didn't completely know. Is it really true that everything 135 00:06:59,836 --> 00:07:02,676 Speaker 2: the prosecution has gets given to the defense before the trial. 136 00:07:03,596 --> 00:07:05,076 Speaker 3: So it's a little more of a I think a 137 00:07:05,236 --> 00:07:10,676 Speaker 3: nuanced answer than just yes. But fundamentally that is the 138 00:07:10,716 --> 00:07:15,196 Speaker 3: intent of the various rules that govern disclosure, and it 139 00:07:15,236 --> 00:07:18,836 Speaker 3: goes in phases, so there is if we want to 140 00:07:18,836 --> 00:07:21,396 Speaker 3: get technical about it, there's a rule in the Federal 141 00:07:21,436 --> 00:07:24,676 Speaker 3: Rules of Criminal Procedure are called Rule sixteen that governs 142 00:07:24,796 --> 00:07:26,716 Speaker 3: what you have to give to the defense as quote, 143 00:07:26,756 --> 00:07:29,796 Speaker 3: discovery materials, and that starts getting turned over as soon 144 00:07:29,836 --> 00:07:32,796 Speaker 3: as charges are brought yep. And that's going to include 145 00:07:33,036 --> 00:07:36,196 Speaker 3: sort of all the paperwork, right, every document in the case, 146 00:07:36,276 --> 00:07:39,716 Speaker 3: every recording in the case, any kind of physical evidence 147 00:07:39,836 --> 00:07:46,316 Speaker 3: or expert testing so DNA testing, fingerprint testing, all is 148 00:07:46,316 --> 00:07:48,996 Speaker 3: going to get turned over as part of that. And 149 00:07:49,036 --> 00:07:52,676 Speaker 3: that requires the production of all statements of witnesses who 150 00:07:52,716 --> 00:07:55,676 Speaker 3: are expected to testify at trial. And then the third 151 00:07:55,756 --> 00:07:59,756 Speaker 3: category is impeachment material, which is to say, if you 152 00:07:59,996 --> 00:08:03,796 Speaker 3: know something that undermines what someone's saying, you have to 153 00:08:03,836 --> 00:08:08,276 Speaker 3: tell the defense that too. So if, for example, you 154 00:08:08,316 --> 00:08:11,476 Speaker 3: have a witness was a conviction, you're gonna have to 155 00:08:11,556 --> 00:08:15,236 Speaker 3: turn that over as well. And so it should really 156 00:08:15,276 --> 00:08:19,436 Speaker 3: be that the two sides have the same information. Of course, 157 00:08:19,636 --> 00:08:22,276 Speaker 3: it's a little more nuanced than that, and prosecutors have 158 00:08:22,396 --> 00:08:25,996 Speaker 3: huge institutional advantages, and they're not going to turn over 159 00:08:26,076 --> 00:08:29,556 Speaker 3: that witness information until relatively close to trial. When I 160 00:08:29,596 --> 00:08:32,836 Speaker 3: started as an ASA, that was turnover the Friday morning 161 00:08:33,116 --> 00:08:36,996 Speaker 3: before a Monday trial. Oh my god, that's not true anymore. 162 00:08:37,156 --> 00:08:39,556 Speaker 3: Now you're talking in a white collar case four weeks 163 00:08:39,596 --> 00:08:42,796 Speaker 3: six weeks out right. But even so, that means that 164 00:08:43,116 --> 00:08:45,516 Speaker 3: if you're a defense lawyer trying to prepare for a 165 00:08:45,556 --> 00:08:47,796 Speaker 3: white collar case and trying to decide should we go 166 00:08:47,836 --> 00:08:50,276 Speaker 3: to trial, you're not going to know what the witnesses 167 00:08:50,356 --> 00:08:53,036 Speaker 3: against your client says until very close to the trial. 168 00:08:53,476 --> 00:08:53,636 Speaker 1: Right. 169 00:08:54,476 --> 00:08:57,956 Speaker 2: Two questions about this. One is does the defense have 170 00:08:58,036 --> 00:09:00,396 Speaker 2: the same obligation to turn over what it has to 171 00:09:00,436 --> 00:09:01,076 Speaker 2: the prosecution. 172 00:09:02,636 --> 00:09:03,596 Speaker 4: No, is the answer. 173 00:09:04,036 --> 00:09:07,316 Speaker 3: They do have some obligations, so they have to turn 174 00:09:07,356 --> 00:09:10,916 Speaker 3: over things they actually intend to use a trial. Prosecutors 175 00:09:12,156 --> 00:09:14,636 Speaker 3: knowing that they can't know until the moment every single 176 00:09:14,636 --> 00:09:16,836 Speaker 3: thing they're going to use just turn over all the 177 00:09:16,876 --> 00:09:19,956 Speaker 3: paperwork in their possession. I think the defense has a 178 00:09:19,996 --> 00:09:22,276 Speaker 3: lot more leeway to say, look, we don't have any 179 00:09:22,276 --> 00:09:26,196 Speaker 3: burden of proof. We don't know what we're going to 180 00:09:26,276 --> 00:09:28,356 Speaker 3: do till we see what the prosecution is going to do, 181 00:09:28,956 --> 00:09:31,196 Speaker 3: and so they get a lot more leeway with that 182 00:09:31,556 --> 00:09:34,076 Speaker 3: sort of thing. So you don't see it going in 183 00:09:34,076 --> 00:09:35,076 Speaker 3: both directions evenly. 184 00:09:35,556 --> 00:09:35,916 Speaker 1: Gotcha? 185 00:09:36,236 --> 00:09:38,596 Speaker 2: But is there a way Is there a possibility for 186 00:09:38,636 --> 00:09:40,956 Speaker 2: the defense to show up with a just total shocker 187 00:09:41,596 --> 00:09:43,756 Speaker 2: and the prosecution just didn't see it coming. 188 00:09:44,276 --> 00:09:45,196 Speaker 4: Yes, I think it is. 189 00:09:45,996 --> 00:09:47,276 Speaker 1: Okay, that's interesting to me. 190 00:09:47,436 --> 00:09:49,076 Speaker 2: And the other thing is that this is I'm just 191 00:09:49,116 --> 00:09:53,116 Speaker 2: kind of curious how sneaky can prosecutors be about what 192 00:09:53,156 --> 00:09:55,236 Speaker 2: they turn over and don't turn over. I mean, what 193 00:09:55,396 --> 00:09:58,716 Speaker 2: is the likelihood that the defense turns up and finds, oh, 194 00:09:58,716 --> 00:10:00,556 Speaker 2: my god, they've got this thing we didn't know about. 195 00:10:01,516 --> 00:10:03,596 Speaker 3: Well, you'd like to think it would never happen, but 196 00:10:03,676 --> 00:10:06,716 Speaker 3: I think that that is obviously not true. You read 197 00:10:06,716 --> 00:10:10,876 Speaker 3: about things all the time in reporting, about situations where 198 00:10:10,916 --> 00:10:16,516 Speaker 3: prosecutors acted with malice to withhold relevant and exculpatory information, right, 199 00:10:16,716 --> 00:10:18,196 Speaker 3: and then of course there's human error, right. 200 00:10:18,236 --> 00:10:19,076 Speaker 4: I mean, you're talking. 201 00:10:18,836 --> 00:10:21,676 Speaker 3: About in a white collar case, millions of pages of documents, 202 00:10:21,676 --> 00:10:24,916 Speaker 3: and I think people can make mistakes, you know, I 203 00:10:24,916 --> 00:10:30,916 Speaker 3: think federal prosecutors as a group are acting with careful 204 00:10:30,996 --> 00:10:33,396 Speaker 3: and good intentions, and so I don't think that there 205 00:10:33,476 --> 00:10:37,756 Speaker 3: is sort of a pervasive problem of things being intentionally withheld. 206 00:10:38,236 --> 00:10:40,596 Speaker 3: I think if you think about, you know, what the 207 00:10:40,796 --> 00:10:43,556 Speaker 3: universe of documents a person has on their phone, on 208 00:10:43,596 --> 00:10:47,036 Speaker 3: their laptop, on their Google's history versus what it was 209 00:10:47,076 --> 00:10:49,276 Speaker 3: twenty five years ago, it gets harder and harder to 210 00:10:49,356 --> 00:10:49,796 Speaker 3: keep up with. 211 00:10:50,276 --> 00:10:50,596 Speaker 1: YEP. 212 00:10:51,996 --> 00:10:54,436 Speaker 2: I have two more general questions about prosecutors, and the 213 00:10:54,476 --> 00:10:58,156 Speaker 2: first is, if if I spent a whole bunch of 214 00:10:58,156 --> 00:11:01,716 Speaker 2: time with a whole bunch of prosecutors, what would I 215 00:11:01,756 --> 00:11:05,156 Speaker 2: notice they had in common? Like what kind of person 216 00:11:05,476 --> 00:11:06,556 Speaker 2: ends up in this role? 217 00:11:08,556 --> 00:11:08,996 Speaker 4: Rule fall? 218 00:11:09,476 --> 00:11:12,036 Speaker 3: I would say, I don't think there's one type. I 219 00:11:12,036 --> 00:11:13,716 Speaker 3: think there are lots of types. There are people who 220 00:11:13,796 --> 00:11:15,716 Speaker 3: really love the law, There are people who do it, 221 00:11:15,716 --> 00:11:18,036 Speaker 3: who love the facts, there are people who love the performance. 222 00:11:18,356 --> 00:11:22,156 Speaker 3: They're all joined I think by that same sense of mission. 223 00:11:22,876 --> 00:11:24,716 Speaker 3: And I think in a similar way as you'd see 224 00:11:24,836 --> 00:11:28,436 Speaker 3: in say a military unit, that kind of this is 225 00:11:28,516 --> 00:11:31,396 Speaker 3: a hard job and a serious job, and an intense 226 00:11:31,516 --> 00:11:34,636 Speaker 3: job kind of bonds people, and so you'd see that. 227 00:11:35,236 --> 00:11:38,516 Speaker 3: I think it's a group that takes its job seriously, 228 00:11:38,596 --> 00:11:41,796 Speaker 3: but not themselves seriously. But they are also all people 229 00:11:41,796 --> 00:11:44,396 Speaker 3: who hold themselves to a higher standard, because I think 230 00:11:44,396 --> 00:11:47,276 Speaker 3: when you send other people to jail, when you make 231 00:11:47,316 --> 00:11:51,236 Speaker 3: decisions that alter the course of someone's life, you realize 232 00:11:51,276 --> 00:11:53,276 Speaker 3: that you have to live your own life. I think 233 00:11:53,476 --> 00:11:54,996 Speaker 3: sort of above reproach. 234 00:11:55,836 --> 00:11:59,116 Speaker 1: Stay with us when we come back from the break. 235 00:11:59,596 --> 00:12:02,436 Speaker 2: Rebecca and I turned to Sam Bankman Freed and how 236 00:12:02,476 --> 00:12:11,356 Speaker 2: prosecutors might argue their case against him. I'm back with 237 00:12:11,396 --> 00:12:14,716 Speaker 2: Rebecca Mermelstein, a former prosecutor in the Southern District of 238 00:12:14,756 --> 00:12:20,356 Speaker 2: New York. So can you just explain to me your 239 00:12:20,396 --> 00:12:25,676 Speaker 2: relationship to the office that is actually prosecuting Sam Bankman Freed. 240 00:12:26,556 --> 00:12:26,836 Speaker 4: Sure. 241 00:12:26,876 --> 00:12:29,276 Speaker 3: So, I was a prosecutor in the Southern District of 242 00:12:29,276 --> 00:12:31,756 Speaker 3: New York until August. So I left before any of 243 00:12:31,796 --> 00:12:34,756 Speaker 3: the started, but not that long before any of it started, 244 00:12:35,316 --> 00:12:37,756 Speaker 3: And I spent a few years in the Securities Fraud Unit, 245 00:12:37,796 --> 00:12:40,676 Speaker 3: which is one of the units principally responsible for this case, 246 00:12:41,156 --> 00:12:45,556 Speaker 3: before leaving that to supervise what's called the General Crimes Unit, 247 00:12:45,556 --> 00:12:48,876 Speaker 3: which is where new prosecutors start and get their training. 248 00:12:49,156 --> 00:12:52,636 Speaker 3: So I'm very familiar with the institution and with the players, 249 00:12:52,636 --> 00:12:54,996 Speaker 3: but I don't know, I have no inside information about 250 00:12:55,036 --> 00:12:55,916 Speaker 3: this particular case. 251 00:12:56,116 --> 00:12:58,956 Speaker 2: So you didn't even hear a whisper of Sam Bankman 252 00:12:59,076 --> 00:13:02,676 Speaker 2: Freed being investigated. 253 00:13:01,956 --> 00:13:02,756 Speaker 1: Before you left. 254 00:13:03,156 --> 00:13:03,556 Speaker 4: I did not. 255 00:13:04,116 --> 00:13:05,916 Speaker 2: Okay, there are a bunch of things I'd love for 256 00:13:05,916 --> 00:13:08,516 Speaker 2: you to explain to me about the case. But you 257 00:13:08,556 --> 00:13:12,196 Speaker 2: have paid life at least casual attention to it. I 258 00:13:12,236 --> 00:13:14,516 Speaker 2: have you have what interests you about it? 259 00:13:16,316 --> 00:13:19,396 Speaker 3: Well, look, it's it's on the front page of you know, 260 00:13:19,476 --> 00:13:21,076 Speaker 3: the Wall Street Journal, on the New York Times on 261 00:13:21,436 --> 00:13:25,076 Speaker 3: a regular basis. As a matter of scale, it's obviously 262 00:13:25,116 --> 00:13:30,116 Speaker 3: among the largest crypto prosecutions to date. And I think 263 00:13:30,156 --> 00:13:33,076 Speaker 3: that the fallout from it or it has real implications 264 00:13:33,116 --> 00:13:37,556 Speaker 3: for the crypto industry writ large, and so you know, 265 00:13:37,596 --> 00:13:40,076 Speaker 3: I think it's something that white collar practitioners are probably 266 00:13:40,116 --> 00:13:41,916 Speaker 3: following pretty consistently. 267 00:13:42,716 --> 00:13:43,076 Speaker 4: Now Here. 268 00:13:43,116 --> 00:13:44,916 Speaker 3: What happened is a little complicated, and you have to 269 00:13:44,956 --> 00:13:47,076 Speaker 3: back all the way up to the way this played out, 270 00:13:47,756 --> 00:13:51,236 Speaker 3: which is you remember the timeline is that in November 271 00:13:51,316 --> 00:13:54,516 Speaker 3: of twenty twenty two, the Alameda financials are leaked and 272 00:13:54,556 --> 00:13:57,436 Speaker 3: people start to have concerns about what's going on, and 273 00:13:57,476 --> 00:14:00,596 Speaker 3: the Southern District moves very fast, so by December they 274 00:14:00,596 --> 00:14:02,836 Speaker 3: have an indictment against Sam Bankman Freed. 275 00:14:03,356 --> 00:14:04,916 Speaker 1: Is that unusual to move that fast? 276 00:14:05,236 --> 00:14:06,436 Speaker 4: Very very unusual. 277 00:14:06,476 --> 00:14:09,116 Speaker 1: I would say it surprised you. 278 00:14:09,796 --> 00:14:12,236 Speaker 3: Yeah, I think it did surprise me. White color cases 279 00:14:12,236 --> 00:14:15,116 Speaker 3: are complicated, it's hard to get things together, and so 280 00:14:15,436 --> 00:14:19,276 Speaker 3: that speed was more than someone unusual for this kind 281 00:14:19,316 --> 00:14:19,716 Speaker 3: of case. 282 00:14:20,156 --> 00:14:23,476 Speaker 2: What would justify in their minds moving so fast or 283 00:14:23,516 --> 00:14:25,676 Speaker 2: why would would there be such a hurry. 284 00:14:26,276 --> 00:14:28,156 Speaker 3: I think you can think of a number of reasons 285 00:14:28,196 --> 00:14:30,196 Speaker 3: they might have felt that they had to move so quickly. 286 00:14:30,916 --> 00:14:34,076 Speaker 3: The first is Sam Bankminfrid was in the Bahamas. The 287 00:14:34,156 --> 00:14:36,996 Speaker 3: United States has an extradition treaty with the Bahamas, so 288 00:14:37,396 --> 00:14:39,996 Speaker 3: there was the possibility of charging him and having him 289 00:14:39,996 --> 00:14:42,796 Speaker 3: brought back to the United States. But when you launch 290 00:14:42,796 --> 00:14:44,916 Speaker 3: a big investigation and you start talking to people and 291 00:14:44,956 --> 00:14:47,996 Speaker 3: demanding documents, the people you're investigating are going to know 292 00:14:48,036 --> 00:14:51,636 Speaker 3: you're investigating them, and there's of course always the possibility 293 00:14:51,676 --> 00:14:54,796 Speaker 3: that someone decides, you know, i'd rather live in Venezuela 294 00:14:55,236 --> 00:14:57,796 Speaker 3: where there's no extradition treaty and just never come back. 295 00:14:58,156 --> 00:14:58,596 Speaker 1: Yeah. 296 00:14:58,676 --> 00:14:58,876 Speaker 4: Right. 297 00:14:58,916 --> 00:15:01,116 Speaker 3: So one possibility is that a concern that you won't 298 00:15:01,156 --> 00:15:03,236 Speaker 3: be able to rest the person if you don't move quickly. 299 00:15:04,036 --> 00:15:07,476 Speaker 3: The other is the government has alleged that in those 300 00:15:07,516 --> 00:15:11,116 Speaker 3: final days where there's a run on FTX, investors are 301 00:15:11,116 --> 00:15:14,516 Speaker 3: trying to pull their money out, that Sam bankman Fried 302 00:15:14,596 --> 00:15:17,116 Speaker 3: and some of his cohort are moving money out of 303 00:15:17,156 --> 00:15:20,036 Speaker 3: it for their own purposes. And so if you're trying 304 00:15:20,076 --> 00:15:22,156 Speaker 3: to protect investors and you want to make sure you 305 00:15:22,236 --> 00:15:24,956 Speaker 3: stop that, you want to move quickly to sort of 306 00:15:25,036 --> 00:15:28,476 Speaker 3: charge people and start locking down the money. So I 307 00:15:28,476 --> 00:15:30,316 Speaker 3: think there may have been very good reasons to do it, 308 00:15:31,156 --> 00:15:33,876 Speaker 3: but they did move sort of very very quickly here, 309 00:15:34,796 --> 00:15:38,236 Speaker 3: and one effect of that is that they brought an 310 00:15:38,236 --> 00:15:43,916 Speaker 3: indictment that had very limited description of the charges and 311 00:15:43,996 --> 00:15:46,956 Speaker 3: also didn't include all the charges that they ultimately decided 312 00:15:46,996 --> 00:15:50,196 Speaker 3: to bring. And so he gets charged, he agrees to 313 00:15:50,236 --> 00:15:52,596 Speaker 3: be extra righted it comes to the United States, and 314 00:15:52,636 --> 00:15:55,316 Speaker 3: then because of that, there's something called the rule of specialty, 315 00:15:55,956 --> 00:15:58,796 Speaker 3: which basically means that if the Bahamas, let you know, 316 00:15:58,916 --> 00:16:01,796 Speaker 3: let you take someone from their country based on an 317 00:16:01,836 --> 00:16:04,036 Speaker 3: agreement that they were going to face a particular set 318 00:16:04,036 --> 00:16:10,196 Speaker 3: of charges. You cannot add new charges after that happens. Now, 319 00:16:10,276 --> 00:16:14,276 Speaker 3: it's interesting because the party who's wronged if you add 320 00:16:14,276 --> 00:16:16,676 Speaker 3: new charges is not the defendant under the law, it's 321 00:16:16,716 --> 00:16:20,236 Speaker 3: the Bahamas. So the Bahamas can agree to let you 322 00:16:20,276 --> 00:16:22,996 Speaker 3: proceed on more charges. So what happens here is the 323 00:16:23,036 --> 00:16:27,116 Speaker 3: government added additional charges twice, they superseded, brought a new 324 00:16:27,156 --> 00:16:30,676 Speaker 3: indictment with more charges, and then another one after sam 325 00:16:30,716 --> 00:16:34,116 Speaker 3: Bankman Freed had been extradited. And now what's happening is 326 00:16:34,156 --> 00:16:36,636 Speaker 3: the government has gone back to the Bahamas and said, 327 00:16:37,156 --> 00:16:40,276 Speaker 3: will you approve this? But that process is going to 328 00:16:40,276 --> 00:16:43,996 Speaker 3: be slow, and there's been a determination by the Bahamanian 329 00:16:44,116 --> 00:16:46,556 Speaker 3: court that Sam Bankman Freed can challenge it and can 330 00:16:46,596 --> 00:16:49,196 Speaker 3: be heard in the Bahamas. So as a practical matter, 331 00:16:49,276 --> 00:16:52,196 Speaker 3: it's not going to be done before the October trial 332 00:16:52,276 --> 00:16:53,076 Speaker 3: date in this case. 333 00:16:53,676 --> 00:16:56,276 Speaker 1: And the Bahamas has the power to squash all that. 334 00:16:56,956 --> 00:16:59,356 Speaker 3: Yes, and the government has said if the Bahama squashes it, 335 00:16:59,676 --> 00:17:01,996 Speaker 3: the United States will not proceed. They agree that if 336 00:17:01,996 --> 00:17:03,956 Speaker 3: that is the decision, then that's the end of it. 337 00:17:05,636 --> 00:17:08,156 Speaker 2: But if the Bahamas, lets them go forward with these 338 00:17:08,236 --> 00:17:11,916 Speaker 2: other charges. In any case, there will be a second trial, 339 00:17:12,036 --> 00:17:13,756 Speaker 2: even if he's convicted it the first one. 340 00:17:13,996 --> 00:17:16,836 Speaker 3: Well, I think as a practical matter, that's pretty unlikely 341 00:17:17,276 --> 00:17:19,516 Speaker 3: if you look at sort of what the first set 342 00:17:19,516 --> 00:17:22,316 Speaker 3: of charges are and what the second set of charges are. 343 00:17:23,236 --> 00:17:25,596 Speaker 3: The first set of charges are very serious, and they 344 00:17:25,636 --> 00:17:30,916 Speaker 3: contain the majority of the core criminal allegations with respect 345 00:17:30,956 --> 00:17:35,436 Speaker 3: to FDx and Alameda. Yep, it's really not necessary if 346 00:17:35,436 --> 00:17:39,396 Speaker 3: that happens, to do a second trial, right yep. So 347 00:17:39,476 --> 00:17:41,516 Speaker 3: I think as a practical matter, it's unlikely if the 348 00:17:41,556 --> 00:17:44,116 Speaker 3: first trial results in a conviction that they will actually 349 00:17:44,116 --> 00:17:47,036 Speaker 3: pursue the second charges. I expect they'll dismiss them or 350 00:17:47,076 --> 00:17:49,036 Speaker 3: they'll be a plea agreement, but they'll be resolved in 351 00:17:49,076 --> 00:17:49,476 Speaker 3: some way. 352 00:17:50,396 --> 00:17:51,796 Speaker 1: We're going to take a short break. 353 00:17:52,676 --> 00:17:55,316 Speaker 2: When we come back, I ask Rebecca about the pros 354 00:17:55,356 --> 00:18:05,876 Speaker 2: and cons of Sam Bankman freed taking the stand. I'm 355 00:18:05,876 --> 00:18:11,956 Speaker 2: back with Rebecca Mermelstein, former federal prosecutor. So, if SBF 356 00:18:11,996 --> 00:18:14,556 Speaker 2: is convicted and he receives the maximum sentence, we're looking 357 00:18:14,596 --> 00:18:18,916 Speaker 2: at multiple decades in jail, probably the rest of his life. Right, Yeah, 358 00:18:19,116 --> 00:18:21,716 Speaker 2: what's the like the range of likely outcomes. 359 00:18:22,956 --> 00:18:25,716 Speaker 3: Look, you know made off got life right, that's among 360 00:18:25,836 --> 00:18:28,796 Speaker 3: the largest scale white collar frauds to date, and he 361 00:18:28,876 --> 00:18:34,196 Speaker 3: pled guilty. He did not challenge the charges. This case 362 00:18:34,236 --> 00:18:35,876 Speaker 3: is in front of Judge Kaplan, who I think is 363 00:18:35,916 --> 00:18:39,116 Speaker 3: seen as a on the spectrum of judges, probably a 364 00:18:39,156 --> 00:18:44,836 Speaker 3: more harsh sentencer. I think Judge Kaplan is clearly lost 365 00:18:44,876 --> 00:18:47,436 Speaker 3: some of his patients with the defendant's conduct, which is 366 00:18:47,476 --> 00:18:50,396 Speaker 3: not a place you want to be. There are two 367 00:18:50,876 --> 00:18:54,236 Speaker 3: different sets of rules in operation. One is the statutory 368 00:18:54,276 --> 00:18:55,836 Speaker 3: scheme that's going to give you a floor and a 369 00:18:55,876 --> 00:18:59,556 Speaker 3: ceiling on what the possible sentence is. Often the floor 370 00:18:59,596 --> 00:19:01,596 Speaker 3: is zero. That's what it is here. In theory, the 371 00:19:01,676 --> 00:19:04,396 Speaker 3: judge could if he wanted to give Sam Mgminfrey nothing. 372 00:19:05,076 --> 00:19:06,076 Speaker 1: There's no floor here. 373 00:19:06,236 --> 00:19:08,476 Speaker 3: There's no floor here. So it's really up to Judge 374 00:19:08,516 --> 00:19:11,436 Speaker 3: Kaplin to do it whatever he wants. But then there's 375 00:19:11,436 --> 00:19:14,516 Speaker 3: a thing called the sentencing guidelines. And the sentencing guidelines 376 00:19:14,556 --> 00:19:17,956 Speaker 3: are a distillation based on for the most part, actual 377 00:19:18,036 --> 00:19:21,596 Speaker 3: data of how sentencing was historically done. That tries to 378 00:19:21,836 --> 00:19:26,276 Speaker 3: assign pluses and minus values to various things, and it 379 00:19:26,356 --> 00:19:29,596 Speaker 3: spits out a proposed range for a crime. 380 00:19:29,996 --> 00:19:31,556 Speaker 1: It's like Zillow does a house price. 381 00:19:31,916 --> 00:19:34,716 Speaker 3: It's kind of I think that's kind of right. So here, right, 382 00:19:34,756 --> 00:19:39,516 Speaker 3: the principal guideline is the one that governs fraud cases 383 00:19:39,556 --> 00:19:42,356 Speaker 3: where there's a monetary loss, and so you're going to 384 00:19:42,396 --> 00:19:44,716 Speaker 3: have a plus factor for the amount of money that 385 00:19:44,836 --> 00:19:47,316 Speaker 3: was an issue here now here that seems to be 386 00:19:47,636 --> 00:19:49,676 Speaker 3: extraordinarily high, and. 387 00:19:49,636 --> 00:19:51,076 Speaker 4: So it's going to be off the charts, right. 388 00:19:51,116 --> 00:19:54,756 Speaker 3: The highest category is if it exceeds five hundred and 389 00:19:54,796 --> 00:19:56,276 Speaker 3: fifty million dollars, which. 390 00:19:56,116 --> 00:19:58,036 Speaker 1: I think that's chump change in this one. 391 00:19:58,116 --> 00:20:00,516 Speaker 3: I think that's probably right. And then there are all 392 00:20:00,556 --> 00:20:03,436 Speaker 3: these plus values and minus values. How many victims were involved? 393 00:20:03,476 --> 00:20:07,316 Speaker 3: Did you use what's called sophisticated means? Did you have 394 00:20:07,396 --> 00:20:09,596 Speaker 3: a minor role in the offense where you a leader 395 00:20:09,596 --> 00:20:11,796 Speaker 3: in the offense? And then you get credit if you 396 00:20:11,956 --> 00:20:14,916 Speaker 3: plead guilty, you get a reduction if you accept responsibility. 397 00:20:15,236 --> 00:20:19,516 Speaker 3: And so I think he's looking at probably a range 398 00:20:19,556 --> 00:20:22,076 Speaker 3: of either three hundred and sixty months to life, so 399 00:20:22,276 --> 00:20:25,276 Speaker 3: thirty years to life or life itself, depending on exactly 400 00:20:25,276 --> 00:20:27,636 Speaker 3: how the math comes out, which in some ways is 401 00:20:27,676 --> 00:20:30,356 Speaker 3: unhelpful to the judge because you know, what does that 402 00:20:30,476 --> 00:20:35,196 Speaker 3: mean is the right sentence? But I think he's looking 403 00:20:35,236 --> 00:20:37,076 Speaker 3: at a long sentence if he's convicted, if you look 404 00:20:37,116 --> 00:20:43,876 Speaker 3: at comparable data points, right, Elizabeth Holmes, someone also young, 405 00:20:44,116 --> 00:20:46,316 Speaker 3: you know, on the younger side of a white collar defendant, 406 00:20:47,836 --> 00:20:49,876 Speaker 3: not maybe this scale, but pretty big. 407 00:20:50,396 --> 00:20:51,756 Speaker 4: I think he's looking at a long time. 408 00:20:52,396 --> 00:20:56,036 Speaker 2: What about his colleagues, the other FTX executives who've played. 409 00:20:55,836 --> 00:21:00,916 Speaker 3: Guilty, They obviously are in a completely different category because 410 00:21:00,956 --> 00:21:04,716 Speaker 3: they are cooperating and assuming that they fulfill their cooperation obligation, 411 00:21:05,116 --> 00:21:09,076 Speaker 3: the average white collar first time defendant who's a cooper 412 00:21:09,756 --> 00:21:11,956 Speaker 3: in the southern distrie f New York, I would say, 413 00:21:11,956 --> 00:21:16,356 Speaker 3: typically does not go to jail really. Now, to be clear, right, 414 00:21:16,396 --> 00:21:19,836 Speaker 3: cooperators don't always get get no jail time. 415 00:21:19,836 --> 00:21:20,716 Speaker 4: They get big benefits. 416 00:21:20,756 --> 00:21:24,916 Speaker 3: You may remember famously, Sammy the Bull cooperated having been 417 00:21:24,956 --> 00:21:28,436 Speaker 3: involved in nineteen murders, and I think he got maybe 418 00:21:28,516 --> 00:21:29,516 Speaker 3: five years in jail. 419 00:21:29,676 --> 00:21:30,916 Speaker 4: Look, cooperators are. 420 00:21:30,836 --> 00:21:34,476 Speaker 3: Always hard because and here it's clear that they have 421 00:21:34,556 --> 00:21:38,716 Speaker 3: three at least three that we know of. And you 422 00:21:38,716 --> 00:21:41,116 Speaker 3: know the problem with cooperators, of course, is that these 423 00:21:41,156 --> 00:21:42,876 Speaker 3: are people who are going to have to come to 424 00:21:42,916 --> 00:21:50,156 Speaker 3: court and say I lied to investors, to customers, to colleagues. 425 00:21:50,916 --> 00:21:53,356 Speaker 3: I did it, you know, for my own purposes in 426 00:21:53,396 --> 00:21:56,116 Speaker 3: some cases. But now I'm telling the truth. 427 00:21:56,316 --> 00:21:57,956 Speaker 1: Yeah, now is when you should believe me. 428 00:21:58,596 --> 00:22:01,676 Speaker 4: And it's no coincidence that I'm telling the truth now. 429 00:22:01,716 --> 00:22:04,276 Speaker 3: By the way, I'm also hoping not to go to jail, yeap, 430 00:22:05,156 --> 00:22:08,076 Speaker 3: And that's hard, right, So you know, making sure that 431 00:22:08,116 --> 00:22:10,676 Speaker 3: the jury is in a position to credit what's being 432 00:22:10,676 --> 00:22:11,876 Speaker 3: said is always a challenge. 433 00:22:11,916 --> 00:22:12,036 Speaker 2: Now. 434 00:22:12,036 --> 00:22:14,596 Speaker 3: I think it's a little easier when you have three cooperators, 435 00:22:14,916 --> 00:22:17,516 Speaker 3: because that line of cross examination of aren't you just 436 00:22:17,556 --> 00:22:19,196 Speaker 3: doing this because you don't want to go to jail? 437 00:22:19,196 --> 00:22:21,676 Speaker 3: And aren't don't you have all these incentives gets a 438 00:22:21,676 --> 00:22:25,156 Speaker 3: little old the third time, and really you start to think, okay, 439 00:22:25,196 --> 00:22:27,196 Speaker 3: maybe one person would do that, but do you really 440 00:22:27,236 --> 00:22:30,876 Speaker 3: think they're all kind of doing it together. That's one challenge. 441 00:22:30,876 --> 00:22:33,196 Speaker 3: I think the other challenge is, which is always true 442 00:22:33,196 --> 00:22:37,196 Speaker 3: in complex white collar cases, is you have to take 443 00:22:37,236 --> 00:22:40,436 Speaker 3: a jury of twelve people, a real cross section of 444 00:22:40,636 --> 00:22:44,956 Speaker 3: the community, and before you can start explaining why this 445 00:22:45,116 --> 00:22:48,156 Speaker 3: was a crime, you have to give like a tutorial 446 00:22:48,276 --> 00:22:53,196 Speaker 3: first on crypto and hedge funds and trading and trading 447 00:22:53,236 --> 00:22:55,636 Speaker 3: algorithms and what it means. And then you have to 448 00:22:55,636 --> 00:22:59,156 Speaker 3: start explaining why what happened here, you know, as they allege, 449 00:22:59,356 --> 00:23:01,356 Speaker 3: was a problem, and why it was illegal and why 450 00:23:01,396 --> 00:23:03,916 Speaker 3: these things weren't true. And that's hard to distill a 451 00:23:03,916 --> 00:23:07,196 Speaker 3: complicated story down to something that everyone can understand. 452 00:23:08,636 --> 00:23:12,476 Speaker 2: You're telling me, I know, it's yeah, exactly, no, it's 453 00:23:12,636 --> 00:23:14,716 Speaker 2: it's I have my own way of dealing with this, 454 00:23:14,796 --> 00:23:21,236 Speaker 2: But I don't envy them. Turning to Sam himself, if 455 00:23:21,276 --> 00:23:22,956 Speaker 2: you were his defense lawyer, what would you be doing 456 00:23:22,996 --> 00:23:24,916 Speaker 2: right now? How would you prepare him for the trial? 457 00:23:25,636 --> 00:23:27,956 Speaker 3: Well, there's a big question, of course, which is is 458 00:23:27,956 --> 00:23:31,476 Speaker 3: he going to testify? Right? And the general wisdom is 459 00:23:31,596 --> 00:23:35,356 Speaker 3: always don't, because you have an absolute right not to 460 00:23:35,396 --> 00:23:37,316 Speaker 3: say anything and it can't be held against you, and 461 00:23:37,356 --> 00:23:40,516 Speaker 3: you don't have to offer any narrative. And the minute 462 00:23:40,556 --> 00:23:43,116 Speaker 3: you tell a story as a defendant, the minute you 463 00:23:44,476 --> 00:23:47,996 Speaker 3: explain your version, even though the judge of course instructs 464 00:23:47,996 --> 00:23:49,836 Speaker 3: the jury on the burden of proof, I really think 465 00:23:49,836 --> 00:23:53,036 Speaker 3: you lose a lot of that advantage because now there's 466 00:23:53,076 --> 00:23:56,556 Speaker 3: two stories and the jury is going to evaluate, well, 467 00:23:56,596 --> 00:23:57,756 Speaker 3: which one do we believe? 468 00:23:58,116 --> 00:24:01,516 Speaker 4: And that's that's not the burden of proof, which one 469 00:24:01,556 --> 00:24:02,356 Speaker 4: is more likely. 470 00:24:02,796 --> 00:24:03,356 Speaker 1: Yeah, and you. 471 00:24:03,596 --> 00:24:04,996 Speaker 3: Really, I think you don't want to do it now. 472 00:24:05,076 --> 00:24:08,476 Speaker 3: Sometimes defendants feel, and this can in some limited circumstances 473 00:24:08,476 --> 00:24:14,956 Speaker 3: be right, that the government's narrative is too powerful not 474 00:24:15,076 --> 00:24:17,196 Speaker 3: to be rebutted in some fashion. There's no way to 475 00:24:17,316 --> 00:24:19,796 Speaker 3: challenge it except for them to hear from you. And 476 00:24:19,876 --> 00:24:23,116 Speaker 3: of course testifying is completely up to him. His lawyers 477 00:24:23,116 --> 00:24:25,756 Speaker 3: can't control it. They can advise him. So one thing 478 00:24:25,796 --> 00:24:28,396 Speaker 3: I'm sure they're talking about is is he going to testify? 479 00:24:28,756 --> 00:24:30,836 Speaker 1: And if you were his lawyer, you would say. 480 00:24:31,116 --> 00:24:34,636 Speaker 4: I think probably not. But I haven't seen the government's proof, which. 481 00:24:34,476 --> 00:24:35,876 Speaker 1: You said I never really thought about. 482 00:24:35,916 --> 00:24:38,636 Speaker 2: But the problem with testifying is instead of them having 483 00:24:38,636 --> 00:24:41,316 Speaker 2: to evaluate just the government's case, you're giving them something 484 00:24:41,316 --> 00:24:42,236 Speaker 2: else to evaluate. 485 00:24:42,556 --> 00:24:44,556 Speaker 3: Yeah, and if the government's case has holes in it, 486 00:24:44,636 --> 00:24:47,556 Speaker 3: then as defense layers, we get to show the jury that. 487 00:24:47,996 --> 00:24:50,396 Speaker 3: But if your case also has holes, right, that's not 488 00:24:50,436 --> 00:24:52,116 Speaker 3: a good look. It's easier to poke holes in someone 489 00:24:52,116 --> 00:24:55,196 Speaker 3: else's story than to come up with a completely coherent narrative. 490 00:24:55,276 --> 00:24:58,516 Speaker 4: So I think that's dangerous. What else would I be doing? 491 00:24:59,036 --> 00:25:02,676 Speaker 3: Look, one interesting thing here is that by all accounts, 492 00:25:02,796 --> 00:25:06,956 Speaker 3: the kind of executive group which includes the cooperators was 493 00:25:07,116 --> 00:25:10,196 Speaker 3: very interpersonally close, many of them or living together. They 494 00:25:10,276 --> 00:25:14,196 Speaker 3: must really know each other's secrets. And you know, if 495 00:25:14,196 --> 00:25:17,076 Speaker 3: you're going to attack a cooperator, you're not only going 496 00:25:17,116 --> 00:25:19,676 Speaker 3: to attack them based on small inconsistencies and things they've 497 00:25:19,676 --> 00:25:21,396 Speaker 3: told the government. You want to know everything about them. 498 00:25:21,436 --> 00:25:25,116 Speaker 3: You want to really investigate them. They government has cell 499 00:25:25,116 --> 00:25:28,196 Speaker 3: phones and laptops that belong to the cooperators, and you're 500 00:25:28,236 --> 00:25:30,036 Speaker 3: going to want to really spend a lot of time 501 00:25:30,196 --> 00:25:31,476 Speaker 3: looking at everything on those. 502 00:25:32,956 --> 00:25:35,796 Speaker 2: All right, this was fabulous. I have one last question 503 00:25:35,836 --> 00:25:38,636 Speaker 2: for you, and then I'm gonna let you go. If 504 00:25:38,676 --> 00:25:40,316 Speaker 2: you could give them one piece of advice right now, 505 00:25:40,356 --> 00:25:40,876 Speaker 2: what would it be. 506 00:25:44,516 --> 00:25:47,396 Speaker 4: I think he should probably think about a disposition. 507 00:25:48,156 --> 00:25:48,796 Speaker 1: What does that mean? 508 00:25:49,356 --> 00:25:51,276 Speaker 3: If I were him, I'd be thinking about whether or 509 00:25:51,276 --> 00:25:56,636 Speaker 3: not there was a plea offer that made sense. There 510 00:25:56,636 --> 00:25:58,676 Speaker 3: are two reasons that going to trial often results in 511 00:25:58,676 --> 00:26:01,436 Speaker 3: longer sentences, and one is that the guidelines themselves give 512 00:26:01,476 --> 00:26:04,236 Speaker 3: credit for people who accept responsibility, and so you can 513 00:26:04,276 --> 00:26:06,356 Speaker 3: think of it as a benefit to people who accept 514 00:26:06,356 --> 00:26:09,316 Speaker 3: responsibility or as a penalty to people who don't. But 515 00:26:09,356 --> 00:26:11,716 Speaker 3: either way there's going to be a delta there. And 516 00:26:11,756 --> 00:26:14,796 Speaker 3: the other is that there is a difference in the 517 00:26:14,796 --> 00:26:17,796 Speaker 3: way a judge views you, I think on a cold record, 518 00:26:17,876 --> 00:26:22,156 Speaker 3: on written submissions by lawyers, and at an actual trial 519 00:26:22,396 --> 00:26:24,276 Speaker 3: where you're going to sit for weeks and weeks and 520 00:26:24,316 --> 00:26:26,876 Speaker 3: weeks and read every text message and hear from your 521 00:26:26,916 --> 00:26:30,076 Speaker 3: ex girlfriend and your closest friends about the conversations that 522 00:26:30,116 --> 00:26:32,916 Speaker 3: you had, and where victims of the crime are going 523 00:26:32,996 --> 00:26:34,916 Speaker 3: to come and talk about the consequence of having lost 524 00:26:34,956 --> 00:26:38,756 Speaker 3: all their money. It sort of it affects judges who 525 00:26:38,756 --> 00:26:43,436 Speaker 3: are their people, and so look, I don't know the 526 00:26:43,476 --> 00:26:45,756 Speaker 3: government's proof, and I don't know what defenses he may have, 527 00:26:46,396 --> 00:26:51,756 Speaker 3: but it doesn't look good right from the outside. And 528 00:26:51,796 --> 00:26:55,796 Speaker 3: I think that he's a young person and his best 529 00:26:55,876 --> 00:26:58,956 Speaker 3: chance of having a life outside of prison is probably 530 00:26:58,956 --> 00:26:59,596 Speaker 3: to take a play. 531 00:26:59,836 --> 00:27:03,156 Speaker 2: If you were his lawyer, plea, would you what deal 532 00:27:03,436 --> 00:27:08,636 Speaker 2: would you happily accept? 533 00:27:09,196 --> 00:27:10,476 Speaker 3: I don't think there's going to be a plea in 534 00:27:10,476 --> 00:27:13,556 Speaker 3: this case that anyone's happy to accepts my guess. I 535 00:27:13,596 --> 00:27:16,276 Speaker 3: think that given the nature of federal sentencing, there's an 536 00:27:16,396 --> 00:27:19,956 Speaker 3: enormous amount of uncertainty in any plea in any plea agreement, 537 00:27:20,036 --> 00:27:22,396 Speaker 3: the government and the defense will agree on the charges 538 00:27:22,436 --> 00:27:24,716 Speaker 3: to that are being pled to and what the math 539 00:27:24,876 --> 00:27:27,396 Speaker 3: is on the guidelines. But all that's going to give 540 00:27:27,436 --> 00:27:30,356 Speaker 3: you is a range. You'll see that in the Southern 541 00:27:30,396 --> 00:27:34,356 Speaker 3: District of New York, most sentences are below that range. Right, 542 00:27:34,396 --> 00:27:37,596 Speaker 3: Most judges are less harsh than the guidelines. And you 543 00:27:37,636 --> 00:27:40,156 Speaker 3: could take a plea and get a sentence that you 544 00:27:40,556 --> 00:27:42,676 Speaker 3: felt was too much and then you're kind of stuck. 545 00:27:43,316 --> 00:27:46,876 Speaker 3: Gets more holistic assessment of what's likely to result in 546 00:27:46,916 --> 00:27:47,836 Speaker 3: the least bad outcome. 547 00:27:48,116 --> 00:27:51,596 Speaker 2: Okay, thank you so much for the time, my pleasure. 548 00:27:53,316 --> 00:27:56,516 Speaker 2: Rebecca Mermelstein was once a prosecutor in the Southern District 549 00:27:56,516 --> 00:27:59,196 Speaker 2: of New York. She is now a defense attorney at 550 00:27:59,196 --> 00:28:04,076 Speaker 2: Omelvinie and Myers. Thanks for listening to our On Background series. 551 00:28:04,956 --> 00:28:08,836 Speaker 2: My book about Sam Bankman Freed Going Infinite, The Rise 552 00:28:08,876 --> 00:28:11,676 Speaker 2: and All of a New Tycoon, will be in bookstores 553 00:28:11,716 --> 00:28:15,796 Speaker 2: this October. And watch this feed there'll be a new 554 00:28:15,836 --> 00:28:24,436 Speaker 2: season of Against the Rules before Long. On Background is 555 00:28:24,436 --> 00:28:27,436 Speaker 2: hosted by me Michael Lewis and produced by Catherine Gerardeau 556 00:28:27,556 --> 00:28:31,676 Speaker 2: and Lydia Jean Kott. Our editor is Julia Barton. Our 557 00:28:31,716 --> 00:28:35,716 Speaker 2: engineer is Sarah Bruguer. Jake Flanagan helps us with licensing. 558 00:28:36,876 --> 00:28:40,076 Speaker 2: Our show is recorded by tofer Ruth at Berkeley Advanced 559 00:28:40,076 --> 00:28:44,636 Speaker 2: Media Studios. Our music was composed by Matthias Bossi and 560 00:28:44,756 --> 00:28:49,276 Speaker 2: John Evans of Stellwagon Syphonette Special Thanks to a few 561 00:28:49,276 --> 00:28:53,556 Speaker 2: more folks who made On Background possible. Our executive team 562 00:28:53,596 --> 00:29:01,156 Speaker 2: including Jacob Weisberg, Malcolm Gladwell, Heather Fain, John Schnarz, Littalmullatt, 563 00:29:01,636 --> 00:29:06,796 Speaker 2: Greta Cone, our business team including Christina Sullivan, Royston Preserve. 564 00:29:07,836 --> 00:29:09,756 Speaker 1: Our marketing team including Eric. 565 00:29:09,596 --> 00:29:17,956 Speaker 2: Sandler, Jordan McMillan, Isabella Narvaez, Brian sabrainik Owen Miller published each. 566 00:29:18,036 --> 00:29:19,596 Speaker 1: And every episode. 567 00:29:19,996 --> 00:29:23,876 Speaker 2: David Glover keeps our office running, and Ian Pexa tends 568 00:29:23,916 --> 00:29:27,876 Speaker 2: to our tech. On Background is a production of Pushkin Industries. 569 00:29:28,556 --> 00:29:31,916 Speaker 2: Don't forget that we have the website atr podcast dot 570 00:29:31,916 --> 00:29:34,236 Speaker 2: com in case you want to send me a question 571 00:29:34,356 --> 00:29:39,676 Speaker 2: or a complaint or anything else. That's atr podcast dot com. 572 00:29:39,956 --> 00:29:44,476 Speaker 2: Find more Pushkin podcasts. Listen on the iHeartRadio app, Apple Podcasts, 573 00:29:44,956 --> 00:29:48,236 Speaker 2: or wherever you listen to your podcasts, and if you 574 00:29:48,396 --> 00:29:51,796 Speaker 2: like to listen ad free and learn about other exclusive offerings. 575 00:29:51,916 --> 00:29:55,076 Speaker 2: Don't forget to sign up for Pushkin Plus subscription at 576 00:29:55,116 --> 00:30:01,716 Speaker 2: pushkin dot fm, slash plus or on our Apple Show page. 577 00:30:01,756 --> 00:30:05,036 Speaker 3: You're investigating, you're issuing subpoenas, you're drafting search warrants, you're 578 00:30:05,076 --> 00:30:06,196 Speaker 3: interviewing witnesses. 579 00:30:06,596 --> 00:30:07,596 Speaker 1: That sounds like reporting. 580 00:30:07,916 --> 00:30:10,276 Speaker 3: I think that's right. I think ways that beginning phase 581 00:30:10,396 --> 00:30:14,116 Speaker 3: is a lot like reporting. If reporters had subpoena power 582 00:30:14,156 --> 00:30:15,716 Speaker 3: and could issue search wards. 583 00:30:15,676 --> 00:30:18,196 Speaker 1: Right, that'd be fun. That'd be really fun. 584 00:30:18,236 --> 00:30:21,116 Speaker 3: Well, it's a very powerful tool, right, Really, if you 585 00:30:21,156 --> 00:30:23,356 Speaker 3: read someone's email, if you can look at everything they've 586 00:30:23,636 --> 00:30:25,756 Speaker 3: every Google search they've run, that tells you a lot 587 00:30:25,756 --> 00:30:26,836 Speaker 3: about what's really happening. 588 00:30:27,156 --> 00:30:30,276 Speaker 1: I would have so many best sellers, well, you. 589 00:30:30,236 --> 00:30:31,316 Speaker 4: Have kind of a lot of best sellers. 590 00:30:31,356 --> 00:30:33,836 Speaker 2: Never know how many more I would have if I 591 00:30:33,836 --> 00:30:36,556 Speaker 2: could just hit buttons and gather all that material.