DOJ prosecutor used misattributed quote to show Tornado Cash team's 'consciousness of guilt'

In a set of last-minute filings ahead of the planned July 14 start to the trial of Roman Storm, co-founder of the Tornado Cash mixing protocol, Storm's defense has argued that Southern District of New York prosecutors used a misattributed quote to show the Tornado team's "consciousness of guilt." 

The dispute centers around Telegram messages which were received from Dutch authorities following their prosecution of Tornado Cash developer Alexey Pertsev. Pertsev was was sentenced to 64 months in prison by a Dutch court for facilitating money laundering through Tornado Cash.

One message in particular reads, "Heya, anyone around to chat about axie? Would like to ask a few general questions about how one goes about cashing out 600 mil." (The message references the $600 million exploit of blockchain game Axie Infinity's Ronin bridge.) Assistant U.S. Attorney Ben Arad referenced the message in a July 8 hearing as one statement that shows the co-founders' "consciousness of guilt," according to the hearing's transcript. 

"For example, when the Ronin hack happened, one of the co-conspirators asked, sum and substance, I'd like to ask you some questions about how you go about laundering $600 million worth of stolen crypto," Arad told the judge. "That doesn't have anything to do with the OFAC sanctions,
except once the OFAC sanctions came down, these co-conspirators who knew they had been doing wrong now knew that people were watching."

However, Storm's defense has produced filings that show the message was originally written by Andrew Thurman, then a senior tech reporter at CoinDesk, then forwarded to a separate Tornado Cash chat by Pertsev. 

"...Given that the government mistakenly attributed the reporter’s Telegram message to Pertsev at the Pretrial Conference, it appears that the government itself was unaware of this issue until the defense raised it," a filing from the defense states . 

The prosecutors, in their response , admitted its original version of the extracted text messages given to the defense in September 2023 did not include the "forwarded" tag on forwarded messages, leading to the mixup, but said it provided the corrected version to the defense in December 2024 — the version it plans to offer at trial. 

"That the Government had previously produced a different format of the messages that did not indicate forwarding simply has no bearing on the authenticity of the chats or their reliability," the prosecutors wrote. "Nor does it change the fact that the defense possessed the version of the chats that the Government intends to use at trial for over seven months before raising this issue three days before trial."

Storm's defense strongly disputed the idea that they delayed their motion until the last minute as a strategic move. "Indeed, while the government attacks the defense for not noticing the issue sooner, the government does not disclose when it learned about this issue...so they are not in a position to point fingers."

Storm's defense pointed to the misattributed quote as one piece of evidence in their argument that the judge should dismiss all the Telegram chat evidence from Pertsev's phone from the trial, and asked to review grand jury transcripts, saying, "[The defense] has grave concerns about the integrity of the grand jury proceedings since it appears that the government provided false information to the grand jury." 

The prosecutors, in their letter, apologized for producing the original messages without the forwarding information, but requested the judge deny the defense's motion to exclude the evidence.