Attorney General -v- Davis, [2016] IEHC 497 (2016)

Docket Number:2014 3 EXT
Party Name:Attorney General, Davis
 
FREE EXCERPT

THE HIGH COURT[2014 No. 3 EXT.]

BETWEEN

ATTORNEY GENERALAPPLICANTAND

GARY DAVISRESPONDENT

JUDGMENT of Mr. Justice McDermott delivered on the 12th day of August, 2016

  1. On 13th January, 2014 Sergeant Martin O’Neill arrested Gary Davis pursuant to a warrant issued by the High Court under s. 26(1)(b) of the Extradition Act, 1965 dated 9th January, 2014. Sergeant O’Neill having arrested Mr. Davis showed him the original arrest warrant, the original extradition request, the original diplomatic note and the original ministerial certificate in respect of same and explained the purpose of the arrest warrant. He was served with a copy of the original warrant and the other documents. He was conveyed to Bray Garda Station where he was processed. The sergeant explained to him the offences contained in the arrest warrant. Mr. Davis accepted that the passport photograph attached to the warrant identified him. Mr. Davis was then brought before the High Court sitting at Court 21 in the Criminal Courts of Justice, Dublin. The warrant was endorsed as executed and it, together with the original extradition request, the original diplomatic note and the original ministerial certificate are part of the proofs submitted in this case. No issue arises in these proceedings concerning the arrest and detention of Mr. Davis pursuant to the terms of the warrant or his identity.

    The Warrant

  2. A warrant for the arrest of Mr. Davis was issued by United States Magistrate, Judge James C. Francis IV of the United States District Court for the Southern District of New York on 5th December 2013 alleging that Mr. Davis committed the following offences:

    i. Count 1: Conspiracy to distribute narcotics in violation of 21 U.S.C. §841(h), 812, 841(a)(1), 841(b)(1)(A) and 846, which carries a maximum penalty of life imprisonment;

    ii. Count 2: Conspiracy to commit computer hacking in violation of 18 U.S.C. §1030(a)(2) and 1030(b), which carries a maximum penalty of five years imprisonment; and

    iii. Count 3: Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 1956(h), which carries a maximum penalty of twenty years imprisonment.

  3. An indictment in case number 13 CRIM 950 had been filed in the United States District Court for the Southern District of New York on 5th December 2013 charging the respondent with these offences. The warrant for Mr. Davis’s arrest issued based on that indictment and remains valid and executable. It is the basis of this request for extradition which was made pursuant to a diplomatic note dated 3rd January, 2014.

  4. The background circumstances said to provide probable cause to believe that Mr. Davis committed the crimes with which he is charged are set out in the request as follows:

    “The Silk Road website provided an online anonymous marketplace for illegal drugs and other illegal goods and services, including computer hacking services. The investigation by U.S. authorities has revealed that the website began operating in or about January 2011 and that the website provided a forum through which many types of illegal drugs, including heroin, cocaine, methamphetamine, ecstasy, and LSD, were sold. The website provided an infrastructure similar to well known online marketplaces such as Amazon Marketplace or e-Bay, allowing sellers and buyers to conduct transactions online. However, unlike such legitimate websites, Silk Road was designed to facilitate illegal commerce by ensuring absolute anonymity on the part of both buyers and sellers.

    Through their investigations, U.S. authorities were able to identify the owner and operator of Silk Road as a U.S. citizen named Ross William Ulbricht (“Ulbricht”). U.S. authorities have learnt through their investigation that Davis was a member of Ulbricht’s support staff and specifically operated as one of two Silk Road site administrators.

    From in or about January 2011 up to and including in or about October 2013 Davis and other members of the conspiracy both known and unknown intentionally and knowingly conspired to violate the narcotics laws of the United States, to wit distribute and possess with intent to distribute controlled substances. In addition to providing a platform for the purchase and sale of illegal narcotics, the Silk Road website also provided a platform for the purchase and sale of malicious software designed for computer hacking such as password stealers, key loggers, and remote access tools.

    Additional confirmation of Davis’s role as a member of the Silk Road was uncovered from the computer seized in connection with Ulbricht’s arrest. Ulbricht’s computer was found to contain a folder named “Ids” where he stored copies of identification documents he required his employees to provide to him in order to get paid. Included within the folder was an image file titled “libertas.jpg”. The file is an image of an Irish passport held in the name of Gary Davis with a date of birth of February 27, 1988”.

  5. Further details of the alleged involvement of Mr. Davis in these offences are set out in the affidavit of Serrin Turner, Assistant United States Attorney for the Southern District of New York in support of the extradition request.

  6. The investigators in the United States are said to have discovered that transactions carried out on the Silk Road website were concluded using “Bitcoin” accounts. On making a purchase on “Silk Road” the purchaser made a Bitcoin payment to a Silk Road Bitcoin account which was held in escrow in a “wallet” maintained by Silk Road pending the completion of the transaction. The Bitcoins were then transferred to the Silk Road Bitcoin address of the vendor and could be withdrawn by sending them to the vendor’s Bitcoin address outside Silk Road. They could then be encashed for real currency. Silk Road charged a commission of 10-15% for each transaction. Silk Road also advertised and used a process known as a “tumbler” which sought to obscure the link between the parties involved and effectively assist in the laundering of criminal proceeds. The total revenue earned by Silk Road between 6th February, 2011 and 23rd July, 2013 was said to be $79.8million by way of commission.

  7. Mr. Davis is said to be an administrator of the Silk Road site known as “Libertas”. His involvement is said to be evidenced by messages found on the site. He is alleged to have commenced working for the site on 6th June, 2013 having provided services at a lesser level for one month before that date. The messages are said to provide evidence of his knowledge of the transactions which he was alleged to have facilitated and advised upon and their illegality. His weekly salary is said to have been $1500. It is claimed that private messages from Libertas concern efforts he made as site administrator to organise the listing of drugs and other items on Silk Road under specific categories to render its operation more efficient and establish that he was well aware of the illegal nature of the commerce conducted on the site. This included work on listings concerning cocaine, crack cocaine, crystal, and other drugs. Other references concern the categorisation of various items as “weaponry”.

    The Offences

  8. Count 1 charges Mr. Davis with conspiracy to distribute narcotics. Mr. Turner’s affidavit outlines that the Government’s evidence will establish that from in or about June to October 2013 Mr. Davis served as a site administrator on Silk Road and as such knowingly worked with others to facilitate the illegal distribution of narcotics through the Silk Road website. It is said that the evidence will show that narcotics were distributed through the site. This evidence was obtained from servers used to operate the Silk Road website, evidence obtained from computer devices controlled by Ulbricht and other co-conspirators and evidence obtained from undercover purchases made on the Silk Road website and also material posted by Mr. Davis on the internet.

  9. Mr. Turner avers that under the laws of the United States:

    “A conspiracy is an agreement to commit one or more criminal offences. The agreement on which the conspiracy is based need not be expressed in writing or in words, but may be simply a tacit understanding by two or more persons to do something illegal. Conspirators enter into a partnership for a criminal purpose in which a member or participant becomes a partner or agent of every other member. A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme or the identities of all the other members of the conspiracy. If a person has an understanding of the unlawful nature of a plan and knowingly and wilfully agrees to it, joining in the plan, he is guilty of conspiracy even though he did not participate before and may play only a minor part. A conspirator can be held criminally responsible for all reasonably foreseeable actions undertaken by other conspirators in furtherance of the criminal partnership. Moreover, because of this partnership, statements made by a conspirator in the due course of and while he is a member of the criminal conspiracy are admissible in evidence not only against that conspirator, but also against all other members of the conspiracy. … Therefore statements of conspirators made in furtherance of the conspiracy may be deemed to be the statements of all conspirators.”

  10. The crime of conspiracy is distinct from the commission of any specific “substantive crime”, a person may be convicted of conspiracy even where the substantive crime which was its purpose is not committed. The essence of the offence is that the Government must at trial establish beyond a reasonable doubt that:

    (1) Two or more persons entered an agreement to commit the underlying offence to distribute narcotics; and,

    (2) Mr. Davis knowingly became a member of the conspiracy to commit the underlying offence.

  11. Count 2 charges Mr. Davis with conspiracy to commit computer hacking. In respect of this offence...

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