The Battle Over Ross Ulbricht: What Happens Next

Popehat has the explanation:

If Ulbricht had been charged in one place and arrested in that place what happens next would be fairly straightforward; I described how it works in the context of the Boston Marathon bombing.

But this is twice as complicated, because (1) Ulbricht was arrested in San Francisco, where he's not charged, and (2) he's charged in two places.

First, the feds have to get him back to someplace he's charged. Occasionally federal agents ship a defendant to another district without a hearing if they "consent."⁵ They don't do that in high-profile cases. Today Ulbricht appeared before a United States Magistrate Judge in federal court in San Francisco. That appearance was explicitly based on the New York complaint, not the Maryland indictment; the government is seeking for now to send him to New York. The Magistrate Judge in San Francisco ordered Ulbricht held without bail pending another hearing this Friday, October 4. At that hearing Ulbricht may or may not seek bail and ask to be allowed to surrender in New York; I would be shocked if the judge agreed. Ulbricht may consent to be transferred to New York without further hearings. If he doesn't, he is entitled to a hearing on whether he is the same Ross Ulbricht charged in the complaint.⁶ He's also entitled to a probable cause hearing before his transfer unless the feds in New York get a grand jury indictment first. From that, and from the fact that the government consented to the next hearing being in two days, I infer that either (1) New York has already indicted him, but the indictment isn't unsealed yet, (2) New York is indicting him Thursday or early Friday morning, or (3) there is a deal in the works to waive indictment. See, the feds like to avoid probable cause hearings with their cross-examination and public proceedings and other hallmarks of due process whenever they can; that's why they indict quickly to avoid them.

So: Ulbricht is likely to head back soon to New York to face an indictment that's not public yet. There he'll make his first appearance before a Magistrate Judge, be informed of the charges against him, and either consent to being detained or make an almost-certainly-futile plea for bail. His case will be assigned randomly to a United States District Judge, and eventually he'll make an appearance before that judge and get a trial date.

What about Maryland? That depends. Ulbricht, if he's inclined to plead, could plead to a deal in one district that wraps up the charges in both districts. Or Maryland may have to wait its turn. It's even possible — though I see no clear evidence of it yet – that this flurry of charges represents a who-gets-him-first battle between the two districts. When that happens it's always entertaining, though perhaps not so much for the defendant.

If I were a betting man, I'd bet it happened like this: New York started investigating Silk Road in 2012, taking its time. Someone in the investigation figured out that Dread Pirate Roberts was thinking about having the Maryland witness whacked and Maryland agents and prosecutors got involved. Maryland indicted first, asserting jurisdiction based on a scheme to murder one of its inhabitants. But New York made its charges public first and arrested first — possibly by agreement, possibly by gamesmanship.