The U.S. Department of Justice’s case against Tornado Cash developer Roman Storm is moving forward to trial in a New York court after District Judge Katherine Polk Failla of the Southern District of New York denied Storm’s motion to dismiss the criminal charges against him. During a telephonic hearing on Thursday, the judge ruled that Storm’s arguments about free speech, lack of notice about potential legal violations, and the operations of Tornado Cash were not sufficient to dismiss the case.
Failla emphasized that the government had brought plausible allegations against the developer and that the court could not simply accept Storm’s narrative that he is being prosecuted solely for writing code. She stated, “If the jury ultimately accepts this narrative, then it will acquit. But there’s no basis for me to decide that as a matter of law.”
Storm and his supporters have argued that being prosecuted for writing code infringes on free speech rights protected by the First Amendment of the U.S. Constitution. However, Failla rejected this argument, stating that the functional capability of code does not qualify as speech under the First Amendment.
The judge highlighted the government’s substantial interest in promoting a secure financial system by combating money laundering, unlicensed money transmitting services, and the evasion of sanctions. She noted that these interests are unrelated to the suppression of free expression and that the laws in question do not impose significant burdens on speech.
Failla also expressed her belief that Tornado Cash was not significantly different from other money transmitting businesses or financial institutions. She pointed to allegations involving a venture capital fund providing financing in exchange for future profits, the relayer feature, and the role of TORN tokens in the service.
Storm, along with his fellow developer Roman Semenov, was indicted last August on charges related to their work with the privacy mixer, including conspiracy to commit money laundering, conspiracy to operate an unlicensed money transmitting business, and conspiracy to violate the International Emergency Powers Act.
Prosecutors have accused Tornado Cash and its developers of knowingly facilitating the laundering of over $1 billion, including funds from North Korea’s Lazarus Group. Storm has pleaded not guilty to all charges, with his lawyers arguing that he only wrote the code for Tornado Cash and should not be held responsible for any criminal activities that occurred using the code.
During the hearing, Failla clarified that under the law, Storm did not need to be aware of the criminal uses of Tornado Cash to be guilty of money laundering. She stated, “The government did not have to allege that Mr. Storm was aware of the specific nature of, much less a participant in, the underlying criminal activity.”
In addition to denying Storm’s motion to dismiss the charges, Failla also rejected his motion to compel the DOJ to produce documents from Dutch authorities related to another Tornado Cash developer’s conviction for money laundering. She ruled that Storm’s team had not demonstrated the relevance of the materials from Dutch authorities to the case.
Storm’s trial is scheduled to begin on December 2 in New York and is expected to last two weeks. If convicted on all counts, he faces a maximum potential sentence of 45 years in prison. The case continues to draw attention as it raises important legal and constitutional questions regarding the prosecution of developers for the use of their code in illegal activities.
