Things Sam Bankman-Fried's Lawyers Should Be Freaking Out About

For a moment Thursday, it looked like Sam Bankman-Fried’s lead attorney, Mark Cohen, was lulling the U.S. Department of Justice’s star witness, Caroline Ellison, into a false sense of security on the stand.

The former Alameda Research CEO was clearly comfortable testifying during her cross-examination. She answered “yes or no?” questions with unnecessary levels of detail – a generally unwise practice for witnesses in a criminal trial. The government’s star witness even corrected Cohen’s choppy pronunciation and wording on certain questions.

And yet, at the end of a nearly five-hour back-and-forth the press corps hoped would be fiery, Cohen rested without proving his expected point: That Caroline Ellison was perhaps more responsible for FTX’s collapse last November than his own client. It was an argument Cohen seemed to telegraph in his opening statement, when he blamed Ellison’s failure to hedge Alameda’s bad crypto bets as somehow paramount. By his closing question to Ellison, he’d seemingly failed.

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Cohen, a well-regarded white collar crime attorney, also failed to severely undermine Ellison’s credibility. He landed one solid hit on the crypto empire’s insider trustworthiness when he caught her conveniently forgetting the somewhat positive characterization of Bankman-Fried’s awareness of their various (alleged) crime-ing that she’d lodged during extensive pretrial interviews with prosecutors.

A feverish-sounding, immediate intervention from Assistant U.S. Attorney Danielle Sassoon indicated she understood the moment’s gravity. Judge Kaplan, who hates sidebars even more than the morning’s court security officer hates cell phones, then called for one – revealing that he, too, understood. Did the jury? Probably not.

Cohen did not bring up any questions about her recreational drug use. He did not deeply probe her past romantic relationship with Bankman-Fried. (Granted, doing so might have caught jurors’ ire). While answers to his initial line of questioning suggested Ellison ran Alameda on her own with little oversight from the defendant – possibly contradicting her testimony from Wednesday – Cohen dropped that angle fairly quickly.

He also did not capitalize on Ellison’s aggressive overanswering. Cohen did a verbal double take when his binary question,“Was hacking a risk to Alameda?” yielded, “Yes, it was, it happened a few times,” from Ellison. And yet, he did not follow up.

Cohen’s cross-examination plodded through old ground. He wrapped on a superficial kicker that cast Ellison as a baddie, but hardly worse than Bankman-Fried.

To be clear, the defense has not yet begun presenting its case or confirmed that it has one at all. We don’t know what final arguments they’ll make to demonstrate Bankman-Fried is not guilty beyond a reasonable doubt. And the attorneys are limited in what they can discuss during cross-examination: They can only discuss issues brought up during the prosecution's initial direct examination.

But Thursday's lackluster questioning of a key witness to the operation and collapse of what was once a multibillion-dollar empire continues a trend by the defense team. Christian Everdell, Cohen’s partner in the courtroom, had a similarly aimless cross-examination with Gary Wang, another former FTX executive, last week. (Editor’s note: Actually it was Tuesday, but it sure felt like last week.)

There, Everdell focused on specific details about Wang’s signing of loan agreements with Alameda, his cooperation agreement with the DOJ and the Alameda software bug. But he failed to really poke holes in the former chief technology officer’s testimony or argue that his testimony was solely to advance a government narrative.

By contrast, the DOJ has so far crafted what seems to be a clear, straightforward narrative: Sam Bankman-Fried took billions of dollars from his customers and investors, and he directed his closest friends to do things that enabled him to take these funds. He then gambled those billions on risky bets and poor corporate governance – and lost. But the main issue at the heart of the government’s case is that he took the funds to begin with.

Thursday’s knockout blow came at day's end, when prosecutors played secret tapes of Ellison revealing to her Alameda underlings that the company had used FTX as its personal piggy bank. It was a Watergate-esque moment that captured the jury’s full attention.

The prosecutors’ Alexander Butterfield equivalent, an Alameda software engineer named Christian Drappi, testified about the secret tape in a somber (if kinda messy) black suit and black tie. His contribution may well have buried the defense.

The defense's ineffective response attempted to discredit Ellison’s smoking gun tape from the all-hands meeting by playing a section where she laughed and said it had all been “fun.” But prosecutors mitigated that attack vector by getting Drappi to confirm Ellison nervously laughed all 18 months he knew her.

Judge Lewis Kaplan even commented on the defense’s possible fumbled play (after the jury was sent out during a break).

“You have spent the last day and a half doing your level best – and I'm not criticizing. I understand it's your job. You should have been doing it – trying to impugn her credibility. You did that in the opening statement. You are going to do it in closing,” he said during a back-and-forth on admissible evidence.

Cohen, to his credit, broached new ground in some of his questions to Ellison on Thursday, but still managed to confuse her with some of his queries and asked for three sidebars and a 15-minute break within the first two hours of his case. All together, he questioned Ellison for a mere two hours and nine minutes before lunch – and less than three hours overall, by our math.

The consensus among observers is clear: The defense’s strategy is totally opaque right now.

— Nikhilesh De, Danny Nelson

Courtroom scenes

Judge Lewis Kaplan is a gifted orator who also seems to accept no nonsense from the attorneys arguing before him. During one sidebar – which the jury couldn’t hear – on Thursday, he took both the prosecution and defense to task for spending a large amount of time asking former Alameda Research developer Drappi – a “low level” employee – about whether or not he saw Bankman-Fried often as the head of FTX and owner of Alameda.

“You both get A+ in evidence law, but this is a colossal waste of time,” the judge told the attorneys. “There is absolutely no doubt he owned the company. Ellison, the ostensible co-CEO or CEO, runs all these decisions through him. He was obviously the boss. What are we wasting this time for?”

Assistant U.S. Attorneys Danielle Kudla and Sassoon and defense attorney Everdell argued over whether Drappi could say that Bankman-Fried was misrepresenting his role with Alameda in tweets, an argument the judge said was “a joke.”

Kudla said the prosecution just wanted to establish that Drappi saw Bankman-Fried.

“Why don't you ask him that,” the judge said. Kudla said she was and it would take 10 minutes.

“Some people don't have 10 minutes left to live,” the judge retorted.

Sassoon clarified that the prosecution wanted Drappi to confirm what Ellison, as a cooperating witness, said.

“If your case rises and falls on whether this guy believed that Sam Bankman-Fried was running the show, you've got troubles,” Judge Kaplan said. “Could we move along?”

— Nikhilesh De

What we're expecting

Prosecutors told Judge Lewis Kaplan at the end of Thursday’s session that they planned to call BlockFi CEO Zac Prince back to the stand to open testimony on Friday, followed by two other witnesses, one of whom would be a law enforcement official. BlockFi is a crypto lender that ran into trouble during the crypto bear market last year, and (briefly) got a bailout from Bankman-Fried.

Friday’s session is expected to end early, around 1 p.m. ET. Depending on the timing and how long Prince and the second witness take, we may not hear from the law enforcement official until Monday.

Prince’s early testimony hints at what he’ll likely be asked to speak to – how FTX’s conduct and collapse ended his own company’s ambitions.

“As a result of FTX and Alameda's bankruptcy, because of our lending to Alameda but also some exposure we had to the FTX platform, BlockFi was forced into – into bankruptcy,” Prince said at the end of the day Thursday.

Prosecutors may also look to illustrate the differences between how BlockFi used customer funds and how FTX (allegedly) did. Assistant U.S. Attorney Nicholas Roos asked Prince on Thursday if BlockFi’s customers knew that their crypto holdings were being loaned out.

“Absolutely,” replied Prince. “This is something that we were very clear about. Everyone knew us as a crypto lending platform.”

— Nikhilesh De