Sam Bankman-Fried, the disgraced former CEO of FTX, is heading back to the U.S. Wednesday but where he will land, in jail or somewhere much more comfortable, is unclear.
Bankman-Fried earlier Wednesday agreed to be extradited back to the U.S., where he faces fraud and other criminal charges related to the demise of FTX, once valued at $32 billion. He is expected back in the U.S. by Wednesday evening, and is expected to be arraigned in Federal District Court in Manhattan, but he will not appear in court tonight, Fortune has learned.
Though bail was denied to him in the Bahamas, where FTX is based, Bankman-Fried's lawyers are currently negotiating bail in the U.S. but with highly restrictive conditions such as home detention, the New York Times reported.
Bankman-Fried's unsuccessful bail application in the Bahamas sought his release for the short period of time while the court addressed the matter of extradition. But the sought-after bail in the U.S. will cover a longer period of time, possibly as much as a year, as Bankman-Fried awaits trial. Home detention, with an ankle monitor, is possible, said John Coffee, a Columbia University law professor
“He can get bail if the prosecution agrees or if the U.S. judge overrules the prosecutor,” Coffee said.
Mark S. Cohen, of law firm Cohen & Gresser, is Bankman-Fried's attorney in the U.S. Cohen did not return messages for comment.
If Bankman-Fried is not granted bail, the executive will travel to New York where he will probably be held at the Metropolitan Detention Center, MDC, in Brooklyn. The prison houses 1,536 total inmates, according to the prison website. (Financiers Jeffery Epstein and Bernie Madoff stayed at the Metropolitan Correctional Center, or MCC, which is located in downtown Manhattan. MCC has been closed since August 2021 due to deteriorating conditions.)
Bankman-Fried has spent the last eight nights at Fox Hill prison, or the Bahamas Department of Correctional Services facility, Bloomberg said. He shared a one-room sick bay with four other men, slept on a cot (a luxury at Fox Hill), and had access to a toilet and running water, the story said.
The 30-year-old Bankman-Fried could spend the rest of his life in jail due to the FTX bankruptcy. Federal prosecutors have alleged Bankman-Fried took part in a conspiracy to commit wire fraud, commodities fraud, securities fraud and money laundering. He also faces civil charges from the Securities and Exchange Commission and the Commodities Futures Trading Commission. FTX creditors are expected to number more than one million.
Will Bankman-Fried be found guilty?
The Justice Department has charged Bankman-Fried with wire fraud, money laundering, illegal political contributions and a variety of conspiracy charges. If he is found guilty, he could be sentenced to well over a lifetime in prisons, but the prosecutors' case is not a slam-dunk.
According to the law professor Coffee, conspiracy doesn’t stand on its own but requires prosecutors to provide evidence showing a defendant agreed to commit an underlying crime. Prosecutors will have to show some of the essential steps occurred in the U.S. This can include repeated communications in the U.S. or misleading investors through conduct in the U.S., he said.
The easiest way to win the case is to gain the cooperation of Caroline Ellison, the former CEO of Alameda Securities and Bankman-Fried’s former girlfriend, Coffee said. "There are multiple ways of convicting [Bankman-Fried] but the fastest, simplest way is to gain her testimony that he planned and executed or approved the money transfers from FTC to Alameda. They may offer her a better plea bargain for such testimony,” he said.
Ellison was photographed in a New York coffee shop on Dec. 4, according to a tweet from Wall Street Silver, an investment forum for precious metals. Stephanie Avakian, a partner at law firm WilmerHale and chair of its securities and financial services department, is said to be advising Ellison.
Ryan Salame, the former co-CEO of FTX Digital Markets, who is cooperating with Bahamian regulators, may also get a deal.
The FTX bankruptcy has drawn comparisons to Bernie Madoff, the mastermind behind a $20 billion Ponzi scheme. The Justice Department has recouped nearly 90% of funds for Madoff victims. FTX similarly is also trying to claw back funds. With the bankruptcy, FTX installed several new executives to take charge of the company last month. John Ray, a corporate restructuring expert that worked on the Enron bankruptcy, was named CEO.
FTX executives have so far found $1 billion in assets, including $720 million in cash in debtor accounts, according to a creditor meeting Tuesday.
“We are reaching out to all of those banks and changing the signatories on the accounts so that we can get access to the accounts and move the cash as much as we can to authorized depository institutions,” said Mary Cilia, FTX’s new chief financial officer, during part of bankruptcy proceedings, CoinDesk reported.
