USA versus Samuel Bankman-Fried a/k/a SBF - argument on appeal on reversal of criminal conviction, with notes

Basically, it seems to me there is risk for both sides - and if there is interest - I would be happy to serve as a mediator or otherwise help the parties resolve the appeal before there are rulings...

This is the official court audio, posted by the court the afternoon of the day the appellate argument was held. I am re-posting on March 15, 2026, with my thoughts of November 4, 2025 on how the argument went. Basically, it seems to me there is risk for both sides - and if there is interest - I would be happy to serve as a mediator or otherwise be of assistance to help the parties resolve the appeal before a ruling is handed down by the US Court of Appeals. This could also help resolve the pending motion for a new trial, before the US District Court for the Southern District of New York. Alternatives seem to be more litigation and appeals, potentially to the Supreme Court while SBF is incarcerated, which seems like a costly and time consuming path to follow, that would take out of the parties’ control the ability to arrive at a mutually acceptable resolution, through a confidential process.

With this said, here are my thoughts on the argument on appeal, writing as a former judicial law clerk to federal bankruptcy, district and circuit judges:

The appellate argument re Sam Bankman-Fried’s criminal conviction proceeded this morning, before the US Court of Appeals for the Second Circuit. The argument was scheduled for 20 minutes or so and went beyond an hour. The bench was a hot bench, with the judges on the panel prepared to ask a lot of questions.

Maybe the case will be resolved consensually?

The appellant’s side, SBF’s counsel, argued to the appellate judges that more evidence of advice of counsel would have changed the jury’s decision to convict. The judges were skeptical.

But the appellee, the government, had a hard time justifying the forfeiture order against Sam Bankman-Fried, which was part of his punishment.

There is a disconnect between the presentation of massive losses in the record of the criminal trial relative to representations of customers being paid in full in the FTX bankruptcy. This was discussed at some length during the argument today. I am not sure it is correct that the FTX customers who are to receive (the low) cash value of Crypto as of 11/11/2022 (the FTX bankruptcy filing date, on Veterans Day, during Crypto Winter) are expected to receive the current value of the Crypto or more in the future. So maybe a fact check of the FTX bankruptcy plan would be helpful.

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I think there could possibly be a motion for new trial at the district court level regardless of the outcome of the appeal, based on the ability to seek a new trial where there is newly discovered evidence… where the interests of Justice require, etc. even where there was a lot of evidence at trial, evidence in support of a jury verdict.

The appellate argument today raises questions like how much does acting on advice of counsel count? Is a person who has lawyers acting more in good faith than a person who doesn’t have lawyers? Like can a person hire lawyers to set up a business or help as it grows and be excused from criminal responsibility? If so - to what extent? One view expressed during the oral argument today was that it may depend on whether the lawyers know what the client was up to, but that is not something that would usually come into evidence at trial because of privilege issues.

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I am concerned for pressure SBF is under from lawyers - BECAUSE he does rely on advice of counsel, now as he must - and his emotional health....

With potential for the SBF case to be heard by the US Supreme Court or a retrial or a pardon, the stakes are high. And with billions at stake in the forfeiture order, based on losses at time of trial that have been reduced, there seems a lot of room for compromise and come to an agreement that resolves the appeal.