Appeals court denies Sam Bankman-Fried’s second attempt at bail

Three judges in an appeals court have denied former FTX CEO Sam Bankman-Fried’s bail request, according to a court filing on Sept. 21.

Those judges, all on the 2nd U.S. Circuit Court of Appeals in Manhattan, found no error in an earlier decision by U.S. U.S. District Judge Lewis Kaplan.

The appellate judges wrote in a ruling:

“The record supports the district court’s conclusion that there was probable cause to believe that [Bankman-Fried] attempted to tamper with two witnesses … and specifically that he acted with unlawful intent to influence those witnesses.”

Bankman-Fried was released on bail in December 2022. Starting in July, prosecutors argued that Bankman-Fried had likely attempted to tamper with witnesses after he shared materials related to his former associate, Caroline Ellison, with the media. Prosecutors asked Judge Kaplan, who is presiding over Bankman-Fried’s criminal case, to revoke Bankman-Fried’s bail. The judge did so on Aug. 11.

SBF based appeal on free speech rights

During the appeal, Bankman-Fried and his defense team attempted to argue that Judge Kaplan had not fully considered First Amendment (or free speech) rights, which could conceivably have protected Bankman-Fried’s right to speak to the press.

However, the appellate judges found that the district court had explicitly acknowledged those rights. They added Judge Kaplan correctly determined that speech that is used to commit a criminal offense, including witness tampering, is not protected.

Bankman-Fried and his defense team additionally argued that Kaplan’s district court had failed to consider a less restrictive alternative to prison. The panel of judges on the appeals court said that the district court had considered all relevant factors, including the possibility of restricting Bankman-Fried’s communications with the press.

The outcome of the appeals process means that Bankman-Fried will remain in prison until his trial begins on Oct. 3 — less than two weeks from today.

However, recent reports suggest that the trial could be delayed until March, as Bankman-Fried and his lawyers want more time to review discovery materials. As such, the actual duration of the accused’s pre-trial imprisonment is still unknown.

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