Prominent defendants in digital assets criminal cases often cite the uncertainty in the U.S. law’s cryptocurrency stance to ease severity. But the bankrupt FTX’s Sam Bankman-Fried (SBF) can’t thwart the alleged charges against him doing the same.
The Manhattan federal prosecutors’ charges against SBF have reportedly left the discussion to regulate cryptocurrencies as securities or commodities unchecked. Facing two counts of wire fraud and six conspiracy counts for stealing FTX customer deposits, SBF intended to pay-off Alameda Research debts from the fund. Pleading not guilty, SBF also concealed FTX’s financial health from the equity investors.
On the issue, Shane Stansbury, a professor at Duke University School of Law and former Manhattan federal prosecutor, says,
It’s a pretty simple deception. You really don’t need to get into the weeds of how we view cryptocurrencies.
So, the question of treating cryptocurrencies as securities (like commodities, stocks, or bonds) in the U.S. is still not resolved. But experts reportedly opine that uncertainty in the U.S. stance on crypto has little to do with SBF’s case.
SBF does face one count of conspiracy owing to the securities fraud charges. But the charge only alleges he misappropriated FTX’s equity investors. It does not clarify the FTX-traded assets’ nature. SBF also faces two wire fraud charges and two conspiracy counts pertaining to being alleged for furnishing to Alameda lenders false financial details and customer assets’ theft.
Mark Kasten, counsel at Buchanan Ingersoll & Rooney, Philadelphia, says,
There’s no need to establish that what the customers ultimately bought with fiat currency was a security or commodity or whatever. Customers put money into the platform and the money was supposed to be used in a certain way. And according to the allegations in the indictment, it wasn’t.
Prosecutors may as well justify wire fraud charges against SBF. By establishing that SBF knowingly closed his eyes to the outcome of his wrongful actions. Victor Hou, a partner at Cleary Gottlieb and former Manhattan federal prosecutor, says,
wire fraud is a powerful and frequently used weapon in the prosecutor’s arsenal because it captures an exceptionally broad range of illegal conduct.
Gary Gensler has reportedly stated that bitcoin is a commodity whereas other digital assets can qualify as securities. Securities are contracts requiring promotional efforts to enable investors to reap profit. Deciding whether or not to treat cryptocurrencies as securities would also determine the authorized cryptocurrency regulatory body—CFTC or SEC.