SBF appeal - argument before US Court of Appeals on reversal of criminal conviction - 11/4/2025

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This is the official court audio, posted by the court this afternoon. The appellate argument therein is the appeal of Sam Bankman-Fried’s criminal conviction proceeded this morning, before the U.S. Court of Appeals for the Second Circuit. The argument was scheduled for 20 minutes or so and went beyond an hour. The bench was a hot bench, with the judges on the panel prepared to ask a lot of questions.

Maybe the case will be resolved consensually?

The appellant’s side, SBF’s counsel, argued to the appellate judges that more evidence of advice of counsel would have changed the jury’s decision to convict. The judges were skeptical.

But the appellee, the government, had a hard time justifying the forfeiture order against Sam Bankman-Fried, which was part of his punishment.

There is a disconnect between the presentation of massive losses in the record of the criminal trial relative to representations of customers being paid in full in the FTX bankruptcy. This was discussed at some length during the argument today. I am not sure it is correct that the FTX customers who are to receive (the low) cash value of Crypto as of 11/11/2022 (the FTX bankruptcy filing date, on Veterans Day, during Crypto Winter) are expected to receive the current value of the Crypto or more in the future. So maybe a fact check of the FTX bankruptcy plan would be helpful.

More generally, how well the FTX bankruptcy is going/supposed to have gone in terms of paying customers in full seems to undermine at least the forfeiture order. It is not unusual that there is interplay between a criminal case and a bankruptcy case/appeal, proceeding on separate tracks but inter-related factually.

I think there could possibly be a motion for new trial at the district court level regardless of the outcome of the appeal, based on the ability to seek a new trial where there is newly discovered evidence… where the interests of Justice require, etc. even where there was a lot of evidence at trial, evidence in support of a jury verdict.

The appellate argument today raises questions like how much does acting on advice of counsel count? Is a person who has lawyers acting more in good faith than a person who doesn’t have lawyers? Like can a person hire lawyers to set up a business or help as it grows and be excused from criminal responsibility? If so - to what extent? One view expressed during the oral argument today was that it may depend on whether the lawyers know what the client was up to, but that is not something that would usually come into evidence at trial because of privilege issues.

This was a fascinating argument. I don’t know if it is what SBF wanted to be represented to the court. Is this how he was told his case would be presented? Or does he have the same problem again, where the FTX bankruptcy case was allegedly described to him as planned a certain way, but then the case went another way and he was arrested and blamed for the collapse of FTX.

Wasn’t he told that a bankruptcy would help liquidity, to monetize FTX assets so that customers could be paid? And then he handed over control of the company, which he laments. The pressure must have been very great, with the other FTX executives blaming him and a bankruptcy presented as a way to stabilize FTX’s business and avoid customer losses… and lawyers telling him what to do.

I am concerned for pressure SBF is under from lawyers - BECAUSE he does rely on advice of counsel, now as he must - and his emotional health and well being must be under so much pressure.

With potential for the SBF case to be heard by the US Supreme Court or a retrial or a pardon, the stakes are high. And with billions at stake in the forfeiture order, based on losses at time of trial that have been reduced, there seems a lot of room for compromise and come to an agreement that resolves the appeal.