In a 30-minute hearing on Friday, the federal judge presiding over Roman Storm's case declined to direct the Department of Justice to review its records for any potentially overlooked materials that could aid the Tornado Cash developer. The judge, Katherine Polk Failla, emphasized that the government should not encounter any disclosure issues. Additionally, she ruled out concerns regarding a Brady violation in the Department of Justice's conversations with the Financial Crimes Enforcement Network (FinCEN) about the requirement for mixers to register as money transmitters.
This conversation, which took place between prosecutors handling the Samourai Wallet case and FinCEN officials, did not involve the prosecutors working on Storm's case, as stated by a DOJ representative during the phone conference on Friday. If the judge had found that prosecutors had withheld information, it could have impacted the case's progression. Judge Failla stated, 'I'm not going to require a further review based on the representations made that there's no additional material of this type, and based on my views that I don't believe the material was exculpatory.' She distinguished between desirable information and a Brady violation, citing a Supreme Court precedent that mandates prosecutors to share any information that could potentially help a defendant with the defendant's team.
Storm's defense attorneys argued during the hearing that they needed to know when the prosecutors in their case became aware of the FinCEN conversation. Defense attorney Brian Klein said, 'They do plan to say they're charging a conspiracy to operate an unlicensed money transmitter. My question is who are they supposed to be licensed with?
… this is all in the same issue. They've only dropped one subpart … but they're still going to say they're charging an unlicensed money business.' Thane Rehn, a prosecutor who worked on the DOJ case against Sam Bankman-Fried, stated that his team would not argue that Tornado Cash needed to secure a license. 'The word 'license' doesn't apply here and the jury won't be instructed on licensing issues … what we intend to prove at trial is the defendant knew they were transmitting funds derived from criminals,' he said.
The judge repeatedly asked the prosecutors if they planned to change any other theories or charges in the weeks leading up to the trial, noting that doing so might be unfair to the defense. The trial is scheduled to commence in less than two months.