U.S. V.

• Court: Court of Appeals for the Second Circuit
• Decided: June 12, 2026
• Docket: 24-961
• Status: Published

Opinion

24-961-cr U.S. v. Bankman-Fried

In the United States Court of Appeals For the Second Circuit

August Term 2025 Argued: November 4, 2025 Decided: June 12, 2026

No. 24-961-cr

UNITED STATES OF AMERICA, Appellee, v. SAMUEL BANKMAN-FRIED, Defendant-Appellant,

ZIXIAO GARY WANG, CAROLINE ELLISON, NISHAD SINGH, RYAN SALAME, Defendants, FTX TRADING LTD., WEST REALM SHIRES INC, ALAMEDA RESEARCH LLC, ALAMEDA RESEARCH LTD., Intervenors. _____________________________________

Appeal from the United States District Court for the Southern District of New York No. 22-cr-00673, Lewis A. Kaplan, Judge _____________________________________

Before: PARKER, LEE, and KAHN, Circuit Judges.

Defendant-Appellant Samuel Bankman-Fried appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Kaplan, J.). The judgment was entered following a trial at which the jury found him guilty of seven counts of fraud and conspiracy related to a cryptocurrency exchange and a cryptocurrency trading firm he operated and controlled.

We AFFIRM the judgment of the district court. _____________________________________

FOR APPELLEE: NATHAN REHN, (Danielle Kudla, Nicolas Roos, Danielle R. Sassoon, Hagan Scotten, Assistant United States Attorneys, on the brief) Assistant United States Attorney, for Jay Clayton, (Damian Williams, on the brief) United States Attorney for the Southern District of New York, New York, NY.

FOR APPELLANT: ALEXANDRA A.E. SHAPIRO, (Theodore Sampsell-Jones, Jason A. Driscoll, on the brief), Shapiro, Arato, Bach LLP, New York, NY.

2 BARRINGTON D. PARKER, Circuit Judge:

Samuel Bankman-Fried appeals from a judgment of the United States

District Court for the Southern District of New York (Kaplan, J.) entered following

a trial at which a jury convicted him of fraud and conspiracy related to the

operation of his cryptocurrency exchange and his cryptocurrency trading firm.

For the reasons set forth below, we AFFIRM the judgment of the district court.

BACKGROUND 1

This case arises from the collapse of FTX.com (“FTX”), a cryptocurrency

exchange, and Alameda Research (“Alameda”), a cryptocurrency hedge fund and

trading firm specializing in, among other things, arbitrage trading. Bankman-

Fried served as CEO of FTX from its founding in 2019 until just before it entered

bankruptcy proceedings in November 2022 and as CEO of Alameda from its

founding in 2017 until he stepped down in 2021. The parties do not dispute that

Bankman-Fried had substantial ownership stakes in both companies and

controlled them. FTX operated as a platform where customers could buy and sell

1Citations to the record are as follows: “Trial Tr.” refers to the trial transcript, “App’x” refers to the appendix that Bankman-Fried submitted, “Special App’x” refers to the special appendix that Bankman- Fried submitted, and “Add.” refers to the Addendum the government submitted. 3 cryptocurrencies such as Bitcoin, Ethereum, and Ripple. FTX customers could also

trade cryptocurrency derivatives, borrow funds and trade on margin. FTX grew

quickly, and by 2022, FTX’s customers traded around $10–$15 billion daily.

Alameda was FTX’s largest customer and primary market maker. As a

market maker, Alameda made offers to buy and sell assets at various prices,

provided liquidity for the exchange, and through these and related functions,

made FTX a more attractive trading venue. In exchange for Alameda performing

this role, FTX extended Alameda a substantial line of credit to serve as collateral

for its positions and for orders on its accounts. This arrangement also allowed

Alameda to maintain negative balances on FTX’s books. This relationship

provided substantial benefits to Alameda.

In late summer and early fall of 2022, the Federal Reserve rapidly raised

interest rates, draining liquidity from financial markets and causing

cryptocurrency markets to crash. As a result, Alameda’s net asset value, meaning

the value of its assets less its liabilities, fell substantially because Alameda’s assets

were mostly in cryptocurrency. In total, Alameda’s net asset value fell from more

than $40 billion in late 2021 to around $10 billion in June 2022. When that

4 happened, Alameda’s lenders recalled some of their loans.

On November 2, 2022, a version of Alameda’s balance sheet was published

by a cryptocurrency news site, triggering widespread customer withdrawals from

FTX. Within days, those customer withdrawals skyrocketed, depleting the value

of Alameda’s holdings in FTX-affiliated cryptocurrencies. Bankman-Fried was

forced to liquidate Alameda. On November 11, 2022, Bankman-Fried was

replaced as FTX’s CEO, and FTX filed for bankruptcy because, at that time, it was

unable to meet withdrawal requests from customers.

Bankman-Fried was indicted in December 2022 on charges stemming from

FTX’s collapse. A seven-count Superseding Indictment, returned in August 2023,

charged him with two counts of wire fraud (Counts One and Three), in violation

of 18 U.S.C. §§ 1343 and 2, two counts of wire fraud conspiracy (Counts Two and

Four), in violation of 18 U.S.C. § 1349, one count of conspiracy to commit securities

fraud (Count Five), in violation of 18 U.S.C. § 371 and 15 U.S.C. §§ 78j(b) and 78ff,

one count of conspiracy to commit commodities fraud (Count Six), in violation of

18 U.S.C. § 371 and 7 U.S.C. §§ 9(1) and 13(a)(5), and one count of conspiracy to

commit money laundering (Count Seven), in violation of 18 U.S.C. § 1956(h).

5 Following a four-week trial, he was convicted on all counts. The district court

sentenced him to 25 years’ imprisonment, to be followed by three years of

supervised release. The district court also imposed a forfeiture of approximately

$11 billion. This appeal followed.

STANDARD OF REVIEW

Because this appeal arises from a judgment of conviction entered after a jury

trial, we “draw the facts from the evidence presented at trial, viewed in the light

most favorable to the government.” United States v. Thompson, 896 F.3d 155, 159

(2d Cir. 2018) (quotations omitted). We review conclusions of law regarding

statutory interpretation, jury instructions, and forfeiture de novo. See Moore v.

Rubin, 160 F.4th 271, 289 (2d Cir. 2025); United States v. Contorinis, 692 F.3d 136, 141,

145 (2d Cir. 2012). We review the district court’s evidentiary and discovery rulings

for abuse of discretion. See Warren v. Pataki, 823 F.3d 125, 137–38 (2d Cir. 2016).

DISCUSSION

The government’s theory at trial was that Bankman-Fried secured

investments in FTX by promising customers that their funds would be secure on

the platform and used only for cryptocurrency transactions on FTX. Instead,

6 Bankman-Fried freely transferred investor funds from FTX customer accounts to

Alameda and elsewhere where he used those funds for purposes investors had not

authorized, including for his own personal benefit.

At trial, the government presented evidence from Bankman-Fried’s

executive team, business associates, former friends, colleagues, government

regulators, and FTX’s bankruptcy restructuring team. That testimony, which the

jury found sufficient to convict Bankman-Fried, proved that he was the driving

force behind a fraud in which he misappropriated billions of dollars from

customers and investors.

Bankman-Fried does not meaningfully contest the substantial evidence the

government marshalled at trial. On appeal, one of his principal lines of defense is

that, despite the many unauthorized transactions, his investments were sound

ones such that over time, there was, or would be, sufficient liquidity to ensure that

investors were made whole and would not experience any losses. He contends

that the district court wrongly precluded him from introducing evidence that FTX

and Alameda, while temporarily illiquid, held sufficient assets to ultimately make

investors and customers whole. Bankman-Fried argues that events post-dating his

7 indictment validate his defense: Many of his investments have or would have

become profitable—some highly so. Bankman-Fried argues that Judge Kaplan

prevented him from telling the “complete” story at trial by disallowing his

testimony about this aspect of FTX’s finances. Appellant’s Reply Br. at 10–12.

But this line of defense has essentially been rejected by a decision that came

down after the trial and that clarified what counts as federal fraud: Kousisis v.

United States, 605 U.S. 114, 118 (2025). 2 There, the Supreme Court held that, under

the “fraudulent-inducement theory,” “a defendant commits federal fraud

whenever he uses a material misstatement to trick a victim into a contract that

requires handing over her money or property—regardless of whether the

fraudster, who often provides something in return, seeks to cause the victim net

pecuniary loss.” Id.

Bankman-Fried’s second line of defense is to challenge the district judge’s

various other rulings. He argues that a series of evidentiary and procedural

rulings prevented him from presenting evidence that would have shown the jury

2“When [the Supreme Court] applies a rule of federal law . . ., that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review.” Harper v. Va. Dep't of Tax'n, 509 U.S. 86, 97 (1993). 8 he did not intend to cause loss to the victims. He argues that these rulings made

his trial “fundamentally unfair.” Appellant’s Br. at 52 (quotations omitted).

Specifically, Bankman-Fried contends that the district court issued one-sided

evidentiary rulings on the issue of loss, impermissibly required Bankman-Fried to

sit for a “deposition” and preview his advice-of-counsel defense, gave legally

erroneous jury instructions, improperly limited his access to potential exculpatory

material, and imposed an illegal and unconstitutional forfeiture order. Id. at 20–

21. We consider each argument in turn.

I. Bankman-Fried makes these arguments in the face of a trial at which the

government’s evidence against him was, conservatively stated, robust. That

evidence showed that while Bankman-Fried assured customers, investors,

regulators and the public that FTX customer funds were safe, he transferred

billions of dollars from FTX customer accounts to Alameda and elsewhere. He

then used those funds to make investments unrelated to FTX customer deposits,

to cover Alameda’s losses, to make political contributions, to acquire personal real

estate, and to underwrite a lavish lifestyle, all while falsifying business records in

order to conceal these transactions.

9 Much of the evidence presented by the government at trial came from

members of Bankman-Fried’s inner circle who testified under cooperation

agreements. Caroline Ellison, former CEO of Alameda, testified that

Bankman-Fried directed her to use FTX customer funds to repay Alameda’s

lenders. She also testified that, to secure additional loans from an Alameda lender,

Bankman-Fried instructed Ellison to send a false balance sheet to the lender to

make it appear as though Alameda had more assets than it did. Ellison further

testified that Bankman-Fried funneled FTX customer funds to Alameda, which in

turn channeled them to, for example, Bankman-Fried’s political lobbying

organization where they were spent on donations to congressional candidates and

political action committees. Ellison testified that as a result of Bankman-Fried’s

management of FTX and Alameda, she became “more willing to do things like lie

and steal” including by “sending false balance sheets to . . . lenders [and] taking

customer money.” Trial Tr. at 807:20–808:02. Ellison testified that he “directed

[her] to commit these crimes” in reference to the fraud, conspiracy, and money

laundering that she “committed with Sam.” Id. at 643:05–11, 644:02–06.

Gary Wang also testified for the government. Wang was co-owner of

10 Alameda and co-founder and Chief Technology Officer of FTX. He was also

Bankman-Fried’s former Massachusetts Institute of Technology roommate and

childhood friend of 15 years. He told the jury that he and Bankman-Fried illegally

built “special privileges” into FTX’s code so that Alameda could withdraw

unlimited amounts of funds from FTX. Trial Tr. at 304:12–22. These “special

privileges” gave Alameda a $65 billion line of credit that it could draw from FTX.

Wang testified that when FTX’s customers thought they had deposited money into

FTX, some of those funds “went into Alameda’s bank account instead.” App’x at

709. Wang also testified that Bankman-Fried lied to the public about these

transactions in telephone calls, in interviews, and on Twitter, 3 falsely assuring the

public that “customer funds [we]re kept safe” and were held by FTX and that FTX

did not “invest client assets.” App’x at 726–27; Trial Tr. at 462:19–24. Wang also

testified that he understood that it was “wrong” for FTX to use customer funds in

this way because customers had not agreed to these uses of their funds and that

Bankman-Fried had publicly promised that he “would not use customer funds like

this.” App’x at 736. Wang further testified that in a public tweet, Bankman-Fried

3 The social media platform used by Bankman-Fried, formerly known as “Twitter,” is now “X.” For consistency, we use Twitter throughout this opinion. 11 falsely stated that FTX had “a long history of safeguarding client assets and that

remains true today.” Trial Tr. at 461:19–20, 463:02–12. He testified that, despite

Bankman-Fried’s tweets to the contrary, “FTX was not fine and assets were not

fine because FTX did not have enough assets for customer withdrawals.” Id. at

461:19, 461:24–462:07.

Nishad Singh, former head of engineering at FTX, testified that Bankman-

Fried was “unsurprised” when he learned that Alameda was borrowing $13

billion from FTX. App’x at 830. Singh also testified that he wanted to resign from

FTX because he “knew that [he] was becoming party [to] and participating in

something heinously criminal . . . [and that] [t]he scale of wrongdoing was

enormous.” Trial Tr. at 1623:02–13. Singh testified that he would frequently

express to Bankman-Fried his concerns about Bankman-Fried spending “large

amounts” of company money “on real estate and endorsement deals, . . . like deals

with celebrities [and] stadiums.” Id. at 1313:01–07, 1314:06–08. Singh testified that,

by signing “blank checks” in his name, Singh helped conceal that political

donations came from FTX customer funds. Id. at 1431:19–1434:12. Singh also

testified that Bankman-Fried directed him to manually backdate and falsify FTX’s

12 revenue numbers.

Can Sun, FTX’s former general counsel, testified that Bankman-Fried asked

him “to come up with legal justifications” for misappropriated FTX funds and that

Bankman-Fried was “not surprised at all” when Sun told him that the theoretical

justifications Sun could come up with were not “supported by the facts.” App’x

at 864–68.

Christian Drappi, a former software engineer for Alameda, testified that, at

a secretly recorded meeting, Ellison told Alameda employees that Bankman-Fried

knew that Alameda was using FTX customer deposits to repay its loans. When

asked at that meeting who made the decision to repay loans with FTX customer

funds, Ellison responded that Sam did. Trial Tr. at 1093:19–1095:02.

Bankman-Fried testified on his own behalf. He told the jury that he believed

the money Alameda siphoned from FTX customers could be repaid because

Alameda’s assets were greater than its liabilities. He testified that he did not

“defraud anyone” and did not “take customer funds.” App’x at 991. He explained

that he “made a number of small mistakes and a number of larger mistakes.” Id.

at 992. According to him, “[b]y far the biggest mistake was [that] [FTX] did not

13 have a dedicated risk management team, [FTX] didn’t have a chief risk officer . . .

and [as a result] there were significant oversights.” Id. Bankman-Fried also

testified that he was surprised when he first learned of Alameda’s $8 billion

negative balance on FTX in October 2022. He explained that he believed that FTX

customers’ money could be repaid because Alameda had $10 billion more in assets

than liabilities, even including Alameda’s $8 billion in liability to FTX. He testified

that he posted a tweet saying “FTX is fine. Assets are fine” because “Alameda still

had a net asset value of roughly positive 10 billion” meaning that “there was no . . .

hole in terms of assets.” Trial Tr. at 2542:22–2543:05. Then, when he learned

shortly thereafter that the market had crashed and Alameda’s asset value declined

“from close to $10 billion to only a little bit above [zero],” he took the tweet down.

Id. at 2545:11–2546:18.

Bankman-Fried’s counsel argued to the jury that what mattered was not the

number of people who testified against him, but rather his “state of mind” and the

fact that Bankman-Fried “acted in good faith throughout.” Id. at 3091:17–19,

3112:3. The jury was unpersuaded and found him guilty on all counts.

II. On appeal, Bankman-Fried contends that reversal is required because the

14 district court, through a series of evidentiary rulings, unfairly prevented him from

presenting his defense and rebutting the government’s case. Bankman-Fried’s

trial lasted a month, and nearly every day of trial sophisticated counsel on both

sides lodged objections of one sort or another. As is typical in most trials, the

district court issued many evidentiary rulings, at times in favor of the government,

and at other times in favor of the defendant. But the Federal Rules of Evidence

and Procedure afford trial judges considerable latitude in superintending trial

proceedings and in admitting or excluding evidence so the trial can proceed fairly

and efficiently. Most of a trial judge’s rulings on these matters are reviewed for

abuse of discretion, a purposefully high standard. And, of course, all of the

evidentiary challenges raised by the defense on appeal must be weighed against

the substantial evidence of guilt the prosecutors presented to the jury. With these

considerations in mind, we turn to Bankman-Fried’s contentions on appeal.

III. Bankman-Fried argues that the district court abused its discretion by issuing

“profoundly one-sided” evidentiary rulings on loss. Appellant’s Br. at 20.

Specifically, he argues that the district court’s rulings, in reliance on a

“misinterpretation of the law of fraud,” erroneously permitted the government to

15 argue that the misappropriated funds were permanently lost and prevented

Bankman-Fried from rebutting that claim by presenting evidence of his

investments’ ultimate value. See id.

Before trial, the district court ruled that it was “immaterial as a matter of

law” whether Bankman-Fried thought his customers and lenders would

ultimately suffer no loss. See Special App’x at 28. Several evidentiary rulings

followed. First, the district court granted the government’s motion in limine,

preventing Bankman-Fried from arguing that he intended “to return or repay

victims’ funds.” Id. at 56–57. In response to Bankman-Fried’s request to

reconsider, the district court declined to change its mind and explained that it is

“immaterial as a matter of law whether the defendant intended to repay.” Id. at

72–73 (quotations omitted). This ruling was correct. To secure Bankman-Fried’s

fraud conviction, the government did not need to prove intent to cause economic

loss. See Kousisis, 605 U.S. at 132 (rejecting “the argument that a fraud conviction

depends on economic loss”). As the district court recognized, any contention that

Bankman-Fried lacked an intent to defraud because he intended to eventually

repay his customers was legally misleading and prejudicial because the wire fraud

16 statute encompasses temporary misappropriation of money or property. As the

district court made clear, FTX customers were defrauded as soon as Bankman-

Fried transferred their money to Alameda regardless of how strongly he believed

he might later return the money.

In any event, Bankman-Fried was able to present his version of events to the

jury when he testified to his good faith belief that Alameda’s assets were greater

than its liabilities. His main objection is that he wanted to say more along these

lines but was prevented from doing so by the district court. We, however, see no

error in the district court’s rulings. Judge Kaplan acted within his broad discretion

when he concluded that more testimony from Bankman-Fried along these lines

would have created a real danger of confusing, if not misleading, the jury. As he

correctly charged the jury: “[i]f the defendant knowingly and willfully

participated in the scheme with the intent to deceive the . . . victims in question for

the purpose of depriving the . . . victims of money or property, even if only for a

period of time, then no amount of honest belief on the part of the defendant that

the victim ultimately would be benefited will excuse” the defendant’s “false

representations.” App’x at 1133.

17 The district court also denied Bankman-Fried’s motion in limine that aimed

to block the government from introducing certain evidence related to FTX and

Alameda’s bankruptcies. The court reasoned that “undisputed” facts about the

bankruptcies were “intertwined inextricably with the crimes alleged in the

Indictment,” and thus “the government [was] entitled, within reason and without

appealing to sympathy, to explain to the jury its view of what allegedly happened

here.” Special App’x at 59–60 (citing Old Chief v. United States, 519 U.S. 172 (1997);

United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). We see no abuse of

discretion. The evidence admitted concerning FTX’s and Alameda’s bankruptcies

was indeed “intertwined inextricably” with the government’s theory of fraudulent

intent. The government had to prove that the money customers placed with FTX

was not accessible and was not custodied as promised. To convict Bankman-Fried

of wire fraud, the government needed to prove, inter alia, that Bankman-Fried

possessed fraudulent intent. See United States v. Gatto, 986 F.3d 104, 113 (2d Cir.

2021). Thus, facts about the events surrounding FTX’s and Alameda’s

bankruptcies showing that the money was not accessible, when juxtaposed with

Bankman-Fried’s public statements and assurances to the contrary, went directly

18 to Bankman-Fried’s knowledge that he had misappropriated FTX customer funds.

Next, the district court granted the government’s motion to exclude

evidence about the current value of Bankman-Fried’s investments, reasoning that

the crime charged was misappropriation and anything that occurred after “the

minute the misappropriation happen[ed]” was irrelevant. App’x 802–08; Special

App’x at 74. We agree. For the same reasons evidence about Bankman-Fried’s

intent to repay the misappropriated funds was misleading, so too was evidence

about the value of Bankman-Fried’s investments following the misappropriation.

Whether the assets purchased by Bankman-Fried appreciated in value is irrelevant

as to whether he committed fraud.

Finally, Bankman-Fried contends that the district court erred by permitting

the government to argue at trial that victims permanently lost their funds.

Assuming arguendo that Bankman-Fried has shown that the district court erred by

permitting the government to exceed the scope of its pretrial rulings, Bankman-

Fried has not shown that the error required reversal considering the strength of

the prosecution’s case. See United States v. Scott, 677 F.3d 72, 85 (2d Cir. 2012)

(explaining that “the strength of the prosecution’s case” is likely “the single most

19 critical factor” in determining whether any evidentiary error is harmless

(quotations omitted)). The overwhelming evidence presented at trial proved that

Bankman-Fried knowingly and intentionally committed large-scale fraud on

FTX’s customers. While he was publicly reassuring customers, investors, and

regulators that FTX customer funds were safe, he was simultaneously using FTX

as his own personal piggy bank, spending customer funds on real estate, political

contributions, and investments. Given the overwhelming evidence against him,

we are not convinced that the isolated statements Bankman-Fried points to, tainted

the jury’s verdict. See United States v. Al–Moayad, 545 F.3d 139, 164 (2d Cir. 2008).

IV. Bankman-Fried also argues that the district court improperly instructed the

jury regarding the scienter requirement for all counts and in so doing, improperly

lowered the government’s burden of proof. This argument is also unpersuasive.

a.

First, Bankman-Fried objects to the district court’s fraudulent intent

instruction. Bankman-Fried sought instructions that to prove fraudulent intent,

the government needed to show that he engaged in fraud “for the purpose of

causing financial loss.” App’x at 515. The district court’s instructions omitted this

20 requirement and on appeal, Bankman-Fried contends the court erred.

As the Supreme Court explained in Kousisis (decided after this appeal was

briefed), “a defendant commits federal fraud whenever he uses a material

misstatement to trick a victim into a contract that requires handing over her money

or property—regardless of whether the fraudster, who often provides something

in return, seeks to cause the victim net pecuniary loss.” 605 U.S. at 118. The

Supreme Court explained that “the wire fraud statute is agnostic about economic

loss. The statute does not so much as mention loss, let alone require it. Instead, a

defendant violates § 1343 by scheming to ’obtain’ the victim’s ‘money or property,’

regardless of whether he seeks to leave the victim economically worse off.” Id. at

124. Therefore, because it is now clear that proof of intent to cause net financial

loss is not required, we see no error in omitting Bankman-Fried’s requested

instruction.

b.

Second, Bankman-Fried argues that the court erred in providing a “no

ultimate harm” instruction. It instructed the jury that the unauthorized—even

temporary—use of a victim’s money or property sufficed to establish fraudulent

21 intent even if “no ultimate harm” was intended or occurred. On this issue, the

court instructed the jury as follows:

[I]n considering whether or not a defendant acted in good faith, you are instructed that an honest belief on the part of the defendant, . . . that ultimately everything would work out to the benefit of the alleged victims does not necessarily mean that the defendant acted in good faith. If the defendant knowingly and willfully participated in the scheme with the intent to deceive the . . . victims . . . for the purpose of depriving the . . . victims of money or property, even if only for a period of time, then no amount of honest belief on the part of the defendant that the victim[s] ultimately would be benefited will excuse false representations that a defendant willfully made or caused to be made.

App’x at 1133–34.

The court’s no-ultimate-harm instruction was not erroneous because it was

an accurate statement of the law. A defendant who uses deceit to temporarily

deprive another of their property cannot claim that he was acting in good faith

and therefore lacked fraudulent intent. As the Supreme Court explained, “a fraud

is complete when the defendant has induced the deprivation of money or property

under materially false pretenses.” Kousisis, 605 U.S. at 127 n.5. Therefore, the fact

that a defendant believed victims would ultimately benefit is not a defense to a

charge of fraud.

Bankman-Fried argues that even if it was not legally erroneous, the 22 instruction was unnecessary because the district court excluded his evidence and

arguments about his intent to repay FTX’s customers. However, the record is clear

that Bankman-Fried testified at trial that he did not intend to harm FTX customers

because he believed Alameda’s assets were greater than its liabilities and that the

money would eventually be repaid. Given this evidence, the instruction was

proper.

Bankman-Fried also argues that “the facts here also make the instruction

wrong and deeply confusing” because FTX’s structure as a margin futures trading

platform involves lending whereby customers and lenders by definition “giv[e]

up the right to use assets for a time.” Appellant’s Br. at 58–59; Appellant’s Reply

Br. at 26. We are unpersuaded. The fact that some FTX customers opted into

margin trading, and thus temporary deprivation of their money, is beside the

point. Some opted into margin trading, some did not. No one opted into having

their money transferred under false pretenses to Alameda. The point was that

people were harmed when they were temporarily deprived of their money

through deception. Thus, the instruction simply—and properly—clarified that

Bankman-Fried could not escape criminal liability for inducing people to part with

23 their money through misrepresentations based on his belief that, eventually,

things would all work out.

c.

Third, Bankman-Fried takes issue with the district court’s definition of

“willfully.” Bankman-Fried requested an instruction that the definition of

“willfully,” for conspiracy to commit securities and conspiracy to commit

commodities fraud, requires proof that the defendant knew his conduct was

unlawful. App’x at 611, 625, 629. But, instead of giving Bankman-Fried’s

requested definition for those counts, the court instructed the jury that “willfully”

“means to act voluntarily and with wrongful purpose.” Id. at 1131; see id. at 1155,

1163. Bankman-Fried consented to the court’s definition of “willfully” for the wire

fraud counts but objected to using that definition for the conspiracy-to-commit-

securities-fraud and conspiracy-to-commit-commodities-fraud counts. The

district court’s instruction was a correct statement of the law, and we see no error.

See United States v. Kaiser, 609 F.3d 556, 569 (2d Cir. 2010) (concluding that

securities fraud “do[es] not require a showing that a defendant had awareness of

the general unlawfulness of his conduct, but rather, that he had an awareness of

24 the general wrongfulness of his conduct”).

d.

Finally, Bankman-Fried objects to the district court’s definition of “good

faith,” which is applicable to all counts. Bankman-Fried had requested that the

court instruct jurors that “[g]ood faith is an honest belief by the defendant that his

conduct was not unlawful or improper.” App’x at 1072. The district court

properly omitted this language from its good-faith instruction as to all counts.

Such an instruction was not necessary because the government was not required

to prove that Bankman-Fried was aware of the general unlawfulness of his conduct

to convict him. Instead, it just had to demonstrate that he had an awareness of the

general wrongfulness of his conduct. See United States v. Kosinski, 976 F.3d 135, 154

(2d Cir. 2020); Kaiser, 609 F.3d at 569. As the government put it, “[i]t is

inconceivable that a defendant could act in good faith while intentionally

deceiving his investors—as the jury was required to find in order to convict.”

Appellee’s Br. at 32.

V. On appeal, Bankman-Fried argues that the court erred by requiring him to

disclose his advice-of-counsel defense in advance of his testimony.

25 a.

Before the trial started, the district court ordered the defense to provide

pretrial advice of counsel disclosure. 4 In response, Bankman-Fried’s counsel

informed the court that he did “not intend to present a formal advice of counsel

defense” but intended to present evidence to the jury that attorneys were involved

in reviewing and approving decisions related to several matters at issue. Add. at

6. Bankman-Fried’s counsel contended that discussions Bankman-Fried had with

his attorneys regarding various matters led Bankman-Fried to believe that he was

acting in good faith. Id.

Later, the district court emphasized that Bankman-Fried was not asserting

a “formal advice-of-counsel defense,” which would require him to establish that

he made, among other things, a “complete disclosure” to counsel about the matter

at issue and sought advice about the legality of his conduct. Special App’x at 63.

The court reasoned that Bankman-Fried’s approach risked unfairly prejudicing the

government. Id. at 70. The court explained that it would likely confuse the jury if

4 To assert an advice-of-counsel defense, defendants must “show that [they] [(1)] made complete disclosure to counsel, [(2)] sought advice as to the legality of [their] conduct, [(3)] received advice that [their] conduct was legal, and [(4)] relied on that advice in good faith.” Markowski v. SEC, 34 F.3d 99, 104– 05 (2d Cir. 1994). 26 Bankman-Fried was permitted to focus on the presence or involvement of lawyers

without providing “any degree of specificity about what they were present for or

involved in, what their tasks were, what exactly they knew, and what the

defendant knew about what the lawyers knew and were doing.” Id. Based on

these conclusions, the court held that Bankman-Fried was precluded from offering

evidence, argument, or testimony on his advice-of-counsel defense “absent prior

notice to the [c]ourt and the government outside of the presence of the jury.” Id.

at 70–71.

At trial, after the government rested, defense counsel informed the court

that Bankman-Fried wanted to testify about the involvement of counsel in data

retention policies and the formation of certain bank accounts. However, Judge

Kaplan concluded that because he had been given insufficient information to

properly rule on the request, he would need to hold a hearing outside the presence

of the jury to decide whether to permit Bankman-Fried’s testimony about

counsel’s involvement. According to Bankman-Fried, his counsel did not object to

the hearing itself because “[f]urther objection would have been futile given the

district court’s repeated rulings against [Bankman-Fried].” Appellant’s Reply Br.

27 at 19–20.

Bankman-Fried then testified and was cross-examined outside the presence

of the jury along the lines drawn by the court. At the start of the hearing,

Bankman-Fried told the court he wanted to testify to the FTX attorneys’

involvement in four matters: (1) implementing document retention policies and

enabling auto-deletion procedures; (2) forming Alameda subsidiary North

Dimension and executing a payment processing agreement between FTX and

Alameda; (3) structuring and documenting loans from Alameda to Bankman-Fried

and other FTX executives; and (4) drafting FTX’s Terms of Service. The district

court considered each category of involvement in turn.

After considering this proposed testimony, the court concluded that

Bankman-Fried could testify to the role of FTX attorneys in implementing

document retention policies (category 1), because such testimony “would not pose

a substantial risk of confusion or unfair prejudice.” Special App’x at 80. However,

the court concluded that the probative value of Bankman-Fried’s testimony as to

the other policies and procedures was significantly outweighed by the risk “of

confusing the jury and unfairly prejudicing the government.” Id. at 87.

28 b.

On appeal, Bankman-Fried principally raises two objections to the district

court’s handling of his advice-of-counsel defense during trial. First, Bankman-

Fried claims that the district court erred in requiring him to sit for a “deposition”

in which his anticipated testimony to the jury could be previewed by the

government. Appellant’s Br. at 43–46. We disagree. Rule 104 authorizes district

courts to decide issues of admissibility and allows them to “conduct any hearing

on a preliminary question so that the jury cannot hear it if . . . justice so requires.”

Fed. R. Evid. 104(c). Also, district courts have broad discretion to take the

necessary steps to minimize jury confusion and to exclude irrelevant evidence. See

Fed. R. Evid. 403. Conducting a hearing outside the presence of the jury, Judge

Kaplan was obviously concerned that Bankman-Fried wished to advance some

sort of hybrid advice-of-counsel defense without meeting the legal requirements

for that defense, particularly the requirement of full disclosure to FTX’s counsel.

To address this concern, Judge Kaplan needed to understand what Bankman-Fried

intended to tell the jury.

Second, Bankman-Fried argues that the district court’s rulings flowing from

29 the hearing, which permitted testimony regarding only the role of FTX’s lawyers

in implementing document retention policies, were erroneous. We disagree.

Bankman-Fried has not shown that the district court abused its discretion in the

compromise it reached. For each category of testimony the district court excluded,

it is undisputed that FTX lawyers were not informed of all the relevant facts and

did not receive full disclosure of the intended use of the documents in question. 5

The fact that lawyers drafted run-of-the-mill corporate documents provided little

to no evidence relevant to Bankman-Fried’s good faith in using them but created

a substantial risk of jury confusion. 6 As the district court explained, “such

5 As to category 2, the formation of North Dimension and execution of a payment processing agreement between Alameda and FTX, “Bankman-Fried testified that he could not recall discussing with counsel the use or purpose of the North Dimension bank account or the topic of Alameda spending FTX customer deposits that came into Alameda bank accounts.” Special App’x at 84 (quotations omitted). He also admitted “that counsel did not tell him that Alameda could spend FTX customer deposits.” Id. (quotations omitted). Likewise, as to category 3, counsel’s involvement in structuring and documenting loans from Alameda to Bankman-Fried, Bankman-Fried conceded that he did not tell counsel that the source of the funds for the loans was FTX customer money. Id. at 85. Therefore, “that the defendant took comfort from the fact that the lawyers had structured the loans would have been irrelevant to his state of mind in using FTX customer funds, conduct of which the lawyers were unaware.” Id. (citation modified). As to category 4, the role of counsel in preparing FTX’s Terms of Service, by Bankman-Fried’s own admission, he did not recall discussing with counsel any particular provision of the Terms of Service, let alone allowing Alameda to borrow from FTX customer deposits. Id. at 86. Therefore, evidence that FTX lawyers drafted the company’s Terms of Service was only minimally probative of his good faith in creating a system whereby FTX customer funds were siphoned off to Alameda. Id. at 86–87.

6Bankman-Fried also argues that because an advice-of-counsel defense can “negate” fraudulent intent, the district court erred in instructing the jury that “‘[a] lawyer’s involvement with . . . an individual or entity

30 evidence risks suggesting to the jury that, because lawyers were involved to some

degree with one aspect of events, the defendant was entitled to conclude that he

was acting within the law with respect to some other aspect of events.” Special

App’x at 82. We agree with the district court that the risk of using counsel to create

a misplaced air of legality substantially outweighed the probative value of the

testimony.

VI.

Next, Bankman-Fried argues to us that the district court improperly denied

his motions to compel discovery from the FTX Debtors and their counsel. He

argues that the FTX debtor estate had sole possession of much of the evidence—

including exculpatory information—necessary for his defense, and the

government’s failure to disclose that information undermined the fairness and

integrity of his trial.

Bankman-Fried’s allegations center around the involvement of law firm

or transaction doesn’t itself constitute a defense to any charge in this case.’” Appellant’s Br. at 51 (quoting App’x at 1134). However, for the same reasons Bankman-Fried was not entitled to present an advice-of- counsel defense, he was not entitled to an advice-of-counsel jury instruction. See United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017) (citing United States v. Evangelista, 122 F.3d 112, 117 (2d Cir. 1997)). 31 Sullivan & Cromwell LLP (“S&C”) 7 with FTX around the time of its collapse in

November 2022. According to Bankman-Fried, S&C represented not only FTX but

also represented him personally in the run-up to FTX’s collapse. Bankman-Fried

alleges that S&C, without notifying him, contacted federal prosecutors on

November 9, 2022, which led to the beginning of a federal criminal investigation.

Bankman-Fried alleges that shortly thereafter, he resigned as CEO of FTX, and

S&C arranged for John Ray to replace him. Then, Bankman-Fried contends, at

Ray’s behest, FTX filed for bankruptcy and Ray had S&C appointed as counsel to

the estate.

Bankman-Fried alleges that S&C worked closely with federal prosecutors in

preparing the case against him. He points to the more than 150 requests S&C

fielded from prosecutors who they spoke with “on a daily basis.” App’x at 191–

92, 201–02. S&C also collected tens of millions of documents and provided

analyses of hundreds of thousands of documents to the prosecution. Bankman-

Fried contends that S&C also provided prosecutors with read-outs of its notes

from interviews with current and former FTX employees and sometimes asked

7 S&C represents the FTX Debtors.

32 questions on behalf of prosecutors. S&C also, he contends, agreed to review

thousands of documents so that it could “make a presentation on . . . topic[s]” the

prosecution requested. See Appellant’s Br. at 70; App’x at 210; see also Appellant’s

Reply Br. at 33. For this work, Bankman-Fried alleges, S&C billed the estate

hundreds of millions of dollars. Appellant’s Br. at 65.

While S&C provided the government with extensive disclosure, meaningful

disclosure was also made to Bankman-Fried. He received a large volume of

discovery from S&C and from the FTX Debtors and third parties. The FTX Debtors

produced approximately one million documents to Bankman-Fried over the

course of about a year. The government also produced millions of pages of

additional records to Bankman-Fried that it obtained from third parties or

pursuant to search warrants. According to the government, Bankman-Fried

received the specific items he sought from the FTX Debtors and, during the

proceedings below, failed to identify any material evidence he requested but was

denied access to.

Before trial, Bankman-Fried moved to compel discovery pursuant to Federal

Rule of Criminal Procedure 16, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v.

33 United States, 405 U.S. 150 (1972), and the Jencks Act (18 U.S.C. § 3500) based on

his theory that the FTX Debtors and S&C were members of the prosecution team.

Alternatively, the motion sought an evidentiary hearing to determine whether the

FTX Debtors and S&C were, in fact, members of the prosecution team. Bankman-

Fried also filed a motion requesting a subpoena addressed to FTX’s outside

counsel, Fenwick & West, seeking documents that reflected counsel’s legal advice

on various topics said to be material to the defense. Bankman-Fried then filed a

third motion for disclosure of any oral Brady information disclosed to the

government. The government opposed these motions. It insisted that it had no

obligation to search the Debtors’ files controlled by S&C because it was not an arm

of the prosecution and, in any event, the documents were not in the government’s

possession or control.

The obligation to disclose evidence favorable to the defense applies to

unilateral evidence “that is known to the prosecutor,” and the prosecutor has a duty

to learn of any favorable evidence known to the others acting on the government’s

behalf. See United States v. Hunter, 32 F.4th 22, 35 (2d Cir. 2022) (quoting United

States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)). To determine who acts on the

34 government’s behalf, we examine “what the [actor] did, not who the [actor] is.” Id.

at 36 (quoting United States v. Stewart, 433 F.3d 273, 298 (2d Cir. 2006)).

In determining whether an actor is an arm of the prosecution team, the first

line of inquiry is whether the actor and the government conducted a joint

investigation. In answering this question, we look to whether the actor (l)

participated in the prosecution’s witness interviews, (2) was involved in

presenting the case to the grand jury, (3) reviewed documents gathered by or

shared documents with the prosecution, (4) played a role in the development of

prosecutorial strategy, or (5) accompanied the prosecution to court proceedings,

and other factors may be pertinent as well. See Stewart, 433 F.3d at 298–99.

The district court agreed with the government and concluded that the FTX

Debtors and S&C were not arms of the prosecution. Judge Kaplan reasoned that

the FTX Debtors and S&C did not have a role in the presentation of the case to the

grand jury, did not directly participate in witness interviews, did not play a

meaningful role in the development of prosecutors’ strategy, and did not have

access to documents the government obtained via subpoena or search warrant.

These conclusions were sound and grounded in the record. Consequently, the

35 district court did not err or abuse its discretion in denying Bankman-Fried’s

motions.

VII.

We now turn to forfeiture. At sentencing, the district court ordered

Bankman-Fried to forfeit $11,020,000,000 pursuant to 18 U.S.C. §§ 981(a)(1)(c) and

982(a)(1), and 28 U.S.C. § 2461(c). Bankman-Fried challenges the forfeiture order

on three grounds. First, he argues that the district court erred by relying on

statutes that do not expressly authorize money judgments. Next, he argues that

the court erred by miscalculating the forfeiture amount under § 981(a)(1)(c).

Third, he argues that the amount of the forfeiture was excessive and therefore

unconstitutional.

Although 18 U.S.C. §§ 981(a)(1)(c) and 982(a)(1), and 28 U.S.C. § 2461(c), do

not expressly authorize forfeiture money judgments, courts may impose them on

defendants who lack assets that can be forfeited at the time of sentencing. United

States v. Awad, 598 F.3d 76, 78 (2d Cir. 2010). In Awad, we held that Ҥ 853 permits

imposition of a money judgment on a defendant who possesses no assets at the

36 time of sentencing,” and that such judgment “is effectively an in personam

judgment in the amount of the forfeiture order.” Id. (quotations omitted). Section

853 governs here because 18 U.S.C. § 982(b)(1), the criminal forfeiture statute at

issue, provides that “[t]he forfeiture of property under this section . . . shall be

governed by” 21 U.S.C. § 853. 18 U.S.C. § 982(b)(1). We subsequently extended

Awad to forfeiture orders entered pursuant to 28 U.S.C. § 2461(c), holding that “28

U.S.C. § 2461(c) . . . incorporates the procedures laid out in [S]ection 853” including

the authorization of in personam money judgments. See United States v. Kalish, 626

F.3d 165, 169 (2d Cir. 2010). Those procedures include the forfeiture of substitute

assets procedures enumerated in 21 U.S.C. § 853(p). See United States v. Stevenson,

834 F.3d 80, 85 n.2 (2d Cir. 2016). Section 2461(c) also integrates the civil forfeiture

statute, 18 U.S.C. § 981(a)(1)(c), into criminal proceedings by “authoriz[ing]

criminal forfeiture as a punishment for any act for which civil forfeiture is

authorized.” United States v. Elias, 154 F.4th 56, 64 (2d Cir. 2025) (quotations

omitted). For these reasons, we hold that the district court correctly concluded

37 that it had authority to impose an in personam money judgment.

Bankman-Fried also argues that the forfeiture amount was miscalculated

under § 981(a)(1)(c) because that provision does not permit all of the money

received from investors and lenders to be forfeited. According to him, the district

court incorrectly ordered gross-proceeds forfeiture under 18 U.S.C. § 981(a)(2)(A)

instead of net-proceeds forfeiture under 18 U.S.C. § 981(a)(2)(B). Therefore, he

claims, the forfeiture order was “grossly inflated.” Appellant’s Br. at 81. We are

not persuaded.

Under 18 U.S.C. § 981(a)(1)(C), the “proceeds” of certain crimes—including

the crimes at issue here—are subject to forfeiture. Section 981 defines “proceeds”

differently in different cases, depending on whether defendants transacted in

“illegal” goods or services or “lawful” goods or services. See 18 U.S.C.

§ 981(a)(2)(A)–(B). Section 981(a)(2)(A) mandates the forfeiture of all property

obtained through the sale of illegal goods. See id. § 981(a)(2)(A). Section

981(a)(2)(B), in contrast, permits the direct costs “incurred in providing the goods

or services” to be deducted from the forfeiture calculation. See id. § 981(a)(2)(B).

38 Bankman-Fried contends that § 981(a)(2)(B)’s definition of “proceeds” should have

applied, in which case only the difference between the FTX stock’s inflated value,

and what it would have sold for absent the fraud, is subject to forfeiture.

But even assuming that § 981(a)(2)(B)’s net-proceeds definition applies,

under that provision, the defendant bears the burden of establishing direct costs,

and where a defendant fails to present evidence or provides “no more than cursory

argument as to this issue, we hold that he has failed to meet his burden.” United

States v. Mandell, 752 F.3d 544, 553–54 (2d Cir. 2014). And here, Bankman-Fried

has not satisfied this burden. He has not, for example, established the value of the

FTX stock absent the fraud. Where a defendant fails to establish any residual value

in the company’s shares, despite their own call for the application of § 981(a)(2)(B),

the defendant fails to establish the relevant direct costs for forfeiture calculation

purposes. For these reasons, we conclude that Bankman-Fried has not

demonstrated that Judge Kaplan erred in ordering the forfeiture of all investor and

lender funds under § 981(a)(1)(C).

Next, Bankman-Fried argues that the size of the $11,020,000,000 forfeiture

39 violates the Excessive Fines Clause of the Eighth Amendment. He argues that he

will be unable to come close to satisfying that judgment and, after his 25 years of

incarceration, the financial burden of the judgment will destroy his ability to ever

earn a living. He argues that the forfeiture order is also unconstitutional because

it is not precisely calibrated to the harm caused and does not reflect the actual

losses to the victims, who largely will be repaid. We recognize that $11 billion is

a very large amount, especially in the context of an illegal scheme in which many

victims may be made whole. But Congress has fashioned a scheme under which

the size of the forfeiture depends on the amount of a defendant’s gains as opposed

to some other matrix such as moral culpability. And we are constrained by the

laws Congress enacted.

In United States v. Bajakajian, the Supreme Court established a two-step

inquiry for determining whether a financial penalty is excessive under the Eighth

Amendment. 524 U.S. 321 (1998). First, we determine whether the Excessive Fines

Clause applies. See id. at 334. If it does, we proceed to the second step and

determine whether the forfeiture is unconstitutionally excessive. Id.

Whether a forfeiture constitutes a fine for Eighth Amendment purposes

40 turns on whether the forfeiture may be appropriately characterized as punitive,

meaning a forfeiture for which a defendant is personally liable. United States v.

Viloski, 814 F.3d 104, 109 (2d Cir. 2016). The forfeiture here is punitive, not

remedial. See id. And it is not restitutive. See United States v. Roberts, 660 F.3d 149,

166 (2d Cir. 2011).

Thus, we proceed to step two of our Eighth Amendment analysis, where we

determine whether the forfeiture is unconstitutionally excessive. A criminal

forfeiture violates the Excessive Fines Clause if it is “grossly disproportional to the

gravity of the defendant’s offense.” Bajakajian, 524 U.S. at 337. To make this

determination, we consider:

(a) the essence of the [defendant’s] crime . . . and its relation to other criminal activity, (b) whether the [defendant] fit into the class of persons for whom the statute was principally designed, (c) the maximum sentence and fine that could have been imposed, and (d) the nature of the harm caused by the [defendant’s] conduct.

United States v. Collado, 348 F.3d 323, 328 (2d Cir. 2003) (per curiam) (quotations

omitted). In addition to these considerations, we have also recognized that

whether the forfeiture would deprive the defendant of his future ability to earn a

living is a factor courts may consider. Viloski, 814 F.3d at 111.

41 Bankman-Fried does not meaningfully contest the district court’s

application of the four Bajakajian factors. He was, the government contends, the

main driver of one of the largest frauds on record. Instead, he argues that the court

gave inadequate consideration to the discretionary factor of whether the forfeiture

would destroy his ability to make a livelihood (after 25 years of incarceration). But

assuming the court did fail to weigh Bankman-Fried’s ability to earn a livelihood,

that failure does not render his forfeiture unconstitutional. The fact that Bankman-

Fried will “never be able to come close to satisfying the $11 billion judgment[,]”

Appellant’s Br. at 82, alone, does not render a forfeiture that satisfies the Bajakajian

factors grossly disproportionate and thus does not establish a constitutional

violation.

CONCLUSION

For these reasons, we AFFIRM the judgment of the district court.