Justice Department pushes back on request to acquit in Tornado Cash trial

Federal prosecutors have pushed back against the acquittal bid for Roman Storm, arguing that the judge should reject the bid. The prosecutors say that the evidence presented against Roman Storm in the Tornado Cash trial case was sufficient to support his conviction and sustain the remaining charges. 

The U.S. Department of Justice for the Southern District of New York filed a submission last week that rejects Storm’s post-trial motion seeking to dismiss all three charges against him. Storm, the co-founder of Tornado Cash, was convicted in August for operating an unlicensed money transmission service. The jurors failed to reach a verdict on two additional counts, including conspiracy to commit money laundering and conspiracy to violate the U.S. sanctions law, resulting in a partial mistrial. 

DOJ says the defendant’s control was neither passive nor incidental

Roman Storm’s legal team filed for a procedural request asking Judge Katherine Polk Failla to acquit him on all counts. The legal team argued that prosecutors failed to meet the threshold required to sustain any of the charges against Storm. The Tornado Cash case prosecutors told the court that the co-founder exercised direct and intentional control over Tornado Cash. 

The U.S. Treasury Department sanctioned the Tornado Cash cryptocurrency mixer in 2022 for facilitating transactions linked to a North Korean hacking group and other malicious cyber actors. Based on the prosecutors’ filing, Storm and his collaborators consistently updated the platform’s user interface, altering the ways most of its users accessed the service. 

The DOJ filing noted that the defendant’s control was neither passive nor incidental. According to the trial transcripts, the prosecutors said that the defendants modified Tornado Cash’s interface at least 250 times between February 2020 and August 2022, adding that at least 96% of all users used the mixer via that interface. The prosecutors described the actions as an element of operational authority and intent. 

According to the DOJ filing, Storm was also aware of the criminal use of the service and helped build features that aided such activities. The prosecutors had also presented evidence during the trial that Tornado Cash enabled billions of dollars in anonymous transactions, including stolen funds by the Lazarus Group, a North Korean state-backed hacking organization. 

Storm faces up to 45 years in jail if found guilty of all three charges

Storm was found guilty of operating an unlicensed money transmission business in an August trial, which carries a maximum penalty of five years’ imprisonment. However, the Jury could not reach a verdict on the other two charges of money laundering and operating a sanctioned business, which may carry a 40-year sentence if found guilty. Judge Failla declared a partial mistrial after the Jury failed to reach a verdict. 

The Tornado Cash co-founder has since been released on bail pending a retrial. The judge argued that the developer had every reason to stay and fight, citing his existing bail package and compliance with court orders. The sentencing date for the single conviction has not been confirmed so far, although the Storm’s attorneys are expected to file a response by Wednesday to the DOJ’s filing. 

According to the original post-trial motion, Storm’s attorneys revealed in their argument that the government did not prove entirely that the co-founder had direct control over Tornado Cash or that he knowingly facilitated criminal laundering activity. The attorneys argued that Tornado Cash is composed of decentralized smart contracts, and there is no way Storm could single-handedly determine how it was being used.  

The defense attorneys also argued against the DOJ’s description of Tornado Cash as a money transmission business, saying that open-source software tools should not be treated as custodial financial intermediaries under U.S. law. The arguments are expected to be restated in the upcoming response by the Storm’s defense attorneys before Wednesday. Judge Failla is also likely to consider whether to issue further rulings or allow the case to proceed to sentencing and retrial. 

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