Sam Bankman-Fried’s attorneys are trying again to have the jury overseeing his trial consider the role of English law in governing FTX’s terms of service, hoping it may lead to a “not guilty” verdict on some of the fraud charges the exchange founder faces.
“For misappropriation to have occurred, under the Government’s theory, there must have existed a trust, fiduciary relationship, or a similar relationship between FTX and its customers,” a filing including a proposed jury instruction said.
The proposed jury instruction would tell the 12 individuals deciding Bankman-Fried’s fate that “FTX’s relationship with its customers was governed by the Terms of Service,” which in turn are “governed by … English law.” An additional set of filings provide example cases from the U.K.
“Under English law, the Terms of Service do not create a trust relationship or similar fiduciary relationship between FTX and its customers. Nor, under English law, do any representations made after a customer agreed to the Terms of Service create a trust relationship or similar fiduciary relationship,” the filing suggested Judge Lewis Kaplan said. “The mere fact that a person subjectively expected, understood or believed that a trust, fiduciary relationship, or similar relationship existed does not create such a relationship.”
Defense attorney Mark Cohen had former FTX General Counsel read a part of the terms of service in court earlier this month, which said, “The terms and any dispute shall be governed by, and construed in accordance with, English law.”
Read more: SBF Trial: What Did FTX’s Terms of Service Say About Customer Funds?
The Department of Justice hadn’t responded to the newest filing as of 10:30 p.m. EDT. Still, a previous filing opposing one of Bankman-Fried’s proposed expert witnesses made it clear that prosecutors believe focusing strictly on the wording of the Terms of Service and their application under English law misconstrues their charge.
“It is legally incorrect to imply to the jury that its focus should be solely on the terms of service … rather than on the full range of the defendant’s misrepresentations and misleading conduct,” the DOJ’s Aug. 28 filing said.
Bankman-Fried’s past statements and “the common understanding of cryptocurrency customers” are relevant in addition to the terms, that filing said. During the FTX founder’s trial, prosecutors have asked FTX customers and Bankman-Fried to discuss the exchange’s marketing and what that may have meant for customers more broadly.
Judge Kaplan has told the parties that he intends to hold a jury charge conference – which will let the parties argue over their various competing jury instruction proposals – after they both rest, which may occur as soon as Wednesday. Bankman-Fried took the stand last week, and is currently going through a cross-examination, which the DOJ expects to wrap up Tuesday morning.
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