(Bloomberg) - After two weeks watching his closest friends detail the collapse of his FTX crypto exchange, Sam Bankman-Fried’s lawyers brought up the possibility of their client testifying in his own trial.
Complaining to Judge Lewis Kaplan late Sunday about the lack of access to Adderall in jail, they argued that Bankman-Fried wouldn’t be able to “meaningfully participate” in the trial because he hadn’t been receiving his full dose of Adderall, which he’s prescribed to treat his ADHD and depression. It’s an issue that has been raised continually since Bankman-Fried was ordered jailed in August.
“As we approach the defense case and the critical decision of whether Mr. Bankman-Fried will testify,” lawyer Mark Cohen said in a heavily redacted five-page letter filed with the court, “the defense has a growing concern that because of Mr. Bankman-Fried’s lack of access to Adderall he has not been able to concentrate at the level he ordinarily would and that he will not be able to meaningfully participate in the presentation of the defense case.”
Defending himself on the witness stand is the toughest decision Bankman-Fried has to make in this trial. It’s also a risky strategy that white-collar crime defendants usually stay away from. But after failing to dent the testimony of FTX co-founder Gary Wang — his former college roommate — and Alameda Research CEO Caroline Ellison — Bankman-Fried’s former girlfriend — it may be one of the only options left, legal experts say.
On Monday, another one of his friends, Nishad Singh, the former director of engineering at FTX took the stand. Singh told the court that he had always been intimidated by Bankman-Fried, drawing an objection from defense lawyers, which was overruled.
“They have a real choice to make,” said Christine Adams, a former federal prosecutor. “Because what other options do they have to get their defenses in?”
Bankman-Fried faces decades in prison on charges that he funneled FTX customer money into Alameda Research, an affiliated hedge fund, for risky trades, political donations and expensive property before both companies collapsed into bankruptcy last year.
If he’s convicted and the judge determines he lied, that could add to his sentence and testifying could complicate any appeal. A panel could determine that jurors simply rejected Bankman-Fried’s story, overwhelming any mistakes the trial judge may have made.
Bankman-Fried is unlikely to say whether he’ll take the stand until the last minute – after the prosecution rests its case. His lawyers didn’t immediately respond to a request to comment on whether their client will testify.
But Ellison and Wang’s testimony may have already limited his options.
On the witness stand, both senior executives detailed the extent of their knowledge about what Bankman-Fried allegedly knew about the alleged fraud. They lived with him in a $30 million Bahamian penthouse that was shared by FTX executives and employees.
The Seven Charges Against Sam Bankman-Fried |© Source: US Department of Justice
“First-hand witness after first-hand witness who was in the room, at the table, when very damaging things were said and the person saying them and the person directing the criminality and the transfer of the money was him,” said Michael Weinstein, a criminal defense lawyer and former prosecutor. “That’s very, very difficult to counter.”
Wang, Ellison and Singh pleaded guilty to felonies and agreed to cooperate. Earlier in the case, former FTX software developer Adam Yedidia testified as a prosecution witness under a grant of immunity.
What’s more, Bankman-Fried has done plenty of talking: to reporters, to investors and to author Michael Lewis, who followed him around at critical points of the FTX meltdown for a book on the crypto mogul. If he deviates from things he’s said in the past, the jury will hear about it, from prosecutors.
“It just seems to me, if he testifies it’s a Hail Mary,” Adams said.
Some of Bankman-Fried’s tweets and text messages in group chats are already being used as evidence against him in trial.
Holmes, Goel
It’s unusual for white-collar defendants to testify, but not unheard of. Recent examples include former Theranos Inc. CEO Elizabeth Holmes and Brijesh Goel, a former Goldman Sachs banker, both of whom were convicted after taking the stand.
Holmes was found guilty of fraud in 2022 and Goel was convicted of insider trading in June. Holmes, who’s serving an 11-year sentence, is appealing. Goel will be sentenced Nov. 1.
‘Going Poorly’
Wang and Ellison both admitted, at the start of their testimony, that they had committed a multi-billion-dollar fraud, telling jurors that Bankman-Fried directed him to alter the cryptocurrency exchange’s code so that Alameda was able to draw a $65 billion line of credit.
Later, when FTX was on the cusp of bankruptcy, Wang testified that a reassuring tweet by Bankman-Fried was a lie.
“FTX was not fine, and the assets were not fine,” Wang said.
Ellison followed, detailing Bankman-Fried’s control over Alameda, even after he made her CEO. Prosecutors showed jurors a set of seven alternative, misleading Alameda balance sheets she said she prepared at his direction to avoid having lenders catch on to its massive borrowing of customer money from FTX.
“Bankman-Fried may have little choice but to take the stand because the trial appears to be going poorly for him,” said Kevin O’Brien, a former federal prosecutor who’s now a defense lawyer in New York.
“His very eccentricity may bring home something no other witness could, namely, that he is so detached from real-life concerns and financial realities that he gave little thought to what he was doing,” he said.
While that’s not a defense to fraud, it could draw some sympathy from jurors, he said.
Or it may be that Bankman-Fried, will insist that he’s in the best position to explain himself. It’s a spot that lines up with his former role as the public face of his company and, to a large extent, the crypto industry.
“People who run large businesses often have great confidence,” Weinstein said. “I don’t care what you say as my lawyers, I want to testify. I want to tell my side of the story.”
The case is US v. Bankman-Fried, 22-cr-00673, US District Court, Southern District of New York (Manhattan).
(Updates to lead with the possibility of SBF testifying; Updates Nishad Singh’s testimony)
By Bob Van Voris
