Sam Bankman-Fried could face scrutiny from prosecutors over FTX's bankruptcy and a Super Bowl ad as lawyers on both sides argue over what evidence can be used in next month's trial.
Bankman-Fried wants to "preclude any evidence whatsoever of the bankruptcy of FTX and Alameda and of the defendant's resignation as FTX’s CEO," the Justice Department said in a filing made late on Friday.
Lawyers are gearing up for an early October trial as the former FTX CEO faces over 100 years in prison if he is convicted on a slew of charges including fraud over allegations that he and other FTX executives used billions of customer assets to make their own failed investments.
Prosecutors argued that evidence regarding FTX's bankruptcy as well as Alameda should be admissible at trial because the bankruptcy is tied to misappropriating customer funds and to "complete the story" of Bankman-Fried's alleged crimes.
"He argues that this evidence is irrelevant because 'businesses seek bankruptcy protection for a variety of reasons' and the defendant was 'strongarmed' into resigning," they said in Friday's filing. "This evidence, however, is admissible as direct evidence of the defendant’s crimes."
Lawyers representing Bankman-Fried said on Friday that the court should exclude evidence relating to FTX and Alameda's bankruptcy, including hearsay statements made by former FTX executives and comments made by former Alameda CEO Caroline Ellison during an all-hands meeting on Nov. 9, 2022.
Super Bowl ad
Bankman-Fried's lawyers also pushed back against a request from prosecutors to admit videos of certain FTX commercials featuring celebrities such as Tom Brady, Gisele Bündchen and Larry David.
Bankman-Fried’s lawyers said the evidence would be confusing the jury because it would give the impression that their client is being charged with defrauding U.S.-based customers of FTX.US.
"Suggesting that U.S. customers were defrauded, when the allegations involve customers of FTX, a business that was not open to U.S. customers, is inflammatory and raises an unavoidable risk of unfair prejudice," they said.
Prosecutors argued that internal documents show no distinction between advertising for FTX and for FTX.US, after they said Bankman-Fried suggested there was a "clear public distinction" between FTX and FTX.US.
"The actual advertising materials and public statements that the defendant authorized similarly make no such distinction: celebrities are featured in advertisements describing 'FTX' as 'a safe and easy way to get into crypto' and showing customers using a device displaying the FTX logo, not the FTX.US logo," prosecutors said.
FTX in 2022 bought a spot for an ad during Super Bowl LVI featuring comedian Larry David, with the two-minute segment taking viewers through history's greatest inventions as he turned them down. David was then introduced to FTX and stated, "I don't think so. And I'm never wrong about this stuff."