At oral argument on Ross Ulbricht’s appeal, questions by the panel of judges suggested that they were highly skeptical of defense counsel’s argument that the conviction should be overturned, but did question the harshness of his life sentence.

Mr. Ulbricht’s defense attorney argued that the conviction should be vacated based on the trial judge’s refusal to let the defense present the jury with certain evidence, including testimony that DEA and Secret Service agents stole bitcoin from the Silk Road website that Mr. Ulbricht was charged with operating. The government successfully kept this evidence of theft by government agents out of the trial based on arguments that it was not relevant to whether Mr. Ulbricht had committed the crimes with which he was charged. Readers of this blog will recall that the government not only did not contest that federal agents illegally stole the bitcoin, but in fact, federal agents were charged for this crime.

While the appellate judges did not seem inclined to vacate Mr. Ulbricht’s conviction, they did comment on the apparent harshness of the life sentence imposed by the district court judge. It is not uncommon for gang leaders who order and even personally participate in savage murders to receive a less severe sentence than life imprisonment. Given that Mr. Ulbricht had no criminal history, was in his early 30s, committed no murders and could credibly assert that he would live a law-abiding life after his release, it surprised many commentators, including this author, when Mr. Ulbricht was sentenced to a term of life imprisonment.

We will follow this appeal closely, as it may set a precedent for how federal courts analyze criminal sentences for wrongdoers who create online platforms knowing that the platforms will be used for unlawful activities. Courts sentencing FinTech entrepreneurs convicted of lesser offenses may look to the Second Circuit’s decision as establishing legal guideline for calculating sentences in future cases.