Sam Bankman-Fried’s Bid for a New Trial: Why a Claimed FTX ‘Surplus’ May Not Change the Verdict

Sam Bankman-Fried is asking for a new criminal trial, arguing that FTX was not a black-hole of missing money but a solvent business caught in a liquidity crunch. His latest motion hinges on a striking claim: that as of FTX’s November 2022 bankruptcy filing, the exchange had a positive net asset value (NAV) of $16.5 billion and that customers are now on track to receive at least 118% of the dollar value of their claims.

For crypto investors and industry watchers, the question is not only whether this argument will help him in court, but what it reveals about how “solvency,” “being made whole,” and “fraud” are defined when exchanges collapse.

What Bankman-Fried Is Arguing in His Motion

On Feb. 10, Bankman-Fried’s legal team filed a motion under Rule 33 of the Federal Rules of Criminal Procedure, which allows a court to order a new trial “if the interest of justice so requires.” That standard is typically invoked when there is newly discovered evidence or when fundamental errors are alleged to have tainted the original verdict.

In this motion, his lawyers advance two central themes:

First, they say key witnesses were effectively silenced. According to the filing, testimony that could have challenged the government’s narrative of FTX as hopelessly insolvent never made it into the record, in part because of what the defense characterizes as prosecutorial intimidation. The motion contends that these witnesses would have supported the idea that FTX’s collapse was a liquidity event, not the product of an unrecoverable hole.

Second, the motion leans heavily on the $16.5 billion NAV figure. It asserts that, as of the Nov. 11, 2022 bankruptcy petition date, FTX’s assets exceeded its liabilities. That claim is now framed against reports that the bankruptcy plan contemplates paying creditors at least 118% of their November 2022 account values, suggesting that what the trial described as “billions in losses” has, in practice, turned into full dollar recovery plus a premium.

Implicit in the argument is a challenge to how the jury understood the case: if customers are ultimately repaid, was it really fraud, or was it a temporary liquidity mismatch that subsequent asset recoveries were able to fix?

The Bankruptcy Math: ‘Whole’ in Dollars, Not Coins

The tension begins with how bankruptcy law measures what creditors are owed. Under 11 U.S.C. § 502(b), claims are fixed as of the petition date—in FTX’s case, Nov. 11, 2022. For customers, that means their entitlements are calculated using crypto prices from the depths of the 2022 market crash, not the much higher prices that followed.

When FTX filed for bankruptcy, Bitcoin was trading under $17,000. Since then, it has rallied to a peak of around $126,000. Yet court filings in related Bahamas proceedings make clear that this post-petition appreciation is not part of what customers are legally entitled to under the core plan. The headline figure—distributions of at least 118%—is 118% of the November 2022 dollar value of user balances, not 118% of the tokens themselves.

For many customers, this distinction is critical. A user who deposited one Bitcoin in 2021 does not get one Bitcoin back. They receive the dollar equivalent of that Bitcoin at November 2022 prices, plus a premium based on what the estate ultimately recovers. That may feel very different from being “made whole” in the way crypto users typically understand ownership of assets they can withdraw at any time.

Customers have objected to this structure because it deprives them of the upside from the market rebound. The legal framework effectively treats FTX balances as dollar-denominated credit claims. Users, by contrast, experienced those balances as specific digital assets, with 24/7 withdrawal rights and price exposure. This disconnect is at the heart of why FTX can be declared solvent in bankruptcy terms while many customers still feel shortchanged.

Three Layers of Solvency: Balance Sheet, Liquidity, Governance

Bankman-Fried’s motion treats solvency largely as an accounting question: if NAV is positive at a moment in time, the firm is solvent, and the story of a “massive hole” is overstated. But for exchanges, solvency is multi-dimensional.

1. Accounting solvency. This is the balance sheet view the motion emphasizes: do assets exceed liabilities, on paper, as of a certain date? Even taking the $16.5 billion figure at face value, it depends on assumptions—what assets you count, how you value illiquid holdings, and which liabilities you recognize.

In FTX’s case, the bankruptcy estate’s apparent improvement over time benefited from venture investments, including stakes in companies like Anthropic, that were not easily monetizable in late 2022 but later turned out to be valuable. That ex post value feeds into NAV calculations even though it did little to help customers trying to withdraw during the run.

2. Liquidity solvency. Exchanges are runnable structures: customers can typically demand their money or tokens immediately. In the 2022 “crypto winter,” academic work has framed the period as a run-driven crisis. When confidence cracked at FTX, the exchange reportedly faced about $5 billion in withdrawal requests in roughly 48 hours.

In that moment, the relevant question was not whether long-term venture bets might pay off someday, but whether FTX held enough liquid, on-chain assets to meet on-demand liabilities in real time. A firm can be balance-sheet solvent while being unable to honor a surge of withdrawals—a liquidity mismatch that can, by itself, be fatal.

3. Governance solvency. This is where fraud considerations enter. It concerns whether the exchange did what it said about custody, segregation, and conflicts of interest. Did FTX actually keep customer assets separate, as users were led to believe? Were internal controls robust enough to prevent misuse of funds, especially given the relationship with Alameda Research?

Global regulators have highlighted these governance issues as core risks. The final recommendations of IOSCO, the international body of securities regulators, put conflicts of interest and client-asset protection at the center of crypto-asset regulation, distinct from pure insolvency questions. Under this lens, even a positive NAV does not resolve whether the firm misled customers or misused their property.

Why Paying Customers Back Does Not Erase Alleged Fraud

The criminal case against Bankman-Fried focused on how FTX and Alameda actually operated, not just the end-state recovery numbers. Trial testimony indicated that Alameda, his trading firm, ran a multi-billion-dollar deficit in its FTX account, with customer deposits used as collateral and working capital.

Prosecutors framed their case around three main themes: customers were told their assets were segregated and safe, funds were allegedly commingled and redirected to Alameda, and basic governance and risk controls were absent or bypassed. The question for the jury was whether customers were misled and whether their assets were misused—not whether, years later, the estate could pay out under bankruptcy rules.

The new motion argues that if customers can now be repaid, the narrative of “billions in losses” presented at trial was misleading. But fraud law and bankruptcy law address different issues. Bankruptcy asks what creditors ultimately recover under the legal framework, including petition-date valuation. Fraud looks at what was represented at the time and what was done with customer property.

Even within the motion’s framing, the story has shifted. The Debtors’ estate originally asserted that both FTX and FTX US were insolvent in November 2022. Only after extensive asset recovery, valuation of illiquid holdings, and market changes did the picture move toward full recovery in dollar terms. Solvency assessments evolve as disputes are resolved and assets are repriced.

Across both domains, one point is clear: a positive balance sheet, discovered after the fact, does not by itself negate earlier misrepresentations or governance failures. Paying creditors later does not retroactively make prior statements true. Being “made whole” for bankruptcy purposes does not determine criminal liability.

What the Case Signals for Crypto Market Structure and Regulation

If the $16.5 billion NAV claim gains traction as the reference point, it could shift how some market participants talk about FTX—from a story of a catastrophic hole to one of a liquidity run on an exchange that eventually recovered enough value to pay out.

That shift, however, raises a set of structural and regulatory lessons:

Proof-of-reserves is not enough. The FTX saga underscores that simply showing assets exist on-chain or on a balance sheet is only one part of the picture. Without visibility into on-demand liabilities and liquidity stress testing, investors and counterparties cannot assess whether those assets can meet withdrawal demands when confidence evaporates.

Regulators are likely to focus on governance chokepoints. The issues in FTX’s collapse—custody, segregation of client assets, internal controls, and related-party dealings—map directly onto the areas IOSCO and other bodies have highlighted. The vertically integrated model, in which one entity runs the exchange, holds custody, operates an affiliated trading firm, and manages a venture portfolio, is becoming a structural concern in itself.

Bankruptcy valuation rules may change user behavior. The fixed petition-date valuation doctrine means that, in a failure, appreciation after filing tends to benefit the estate, not the customers whose assets were frozen. For investors, this crystallizes the risk of keeping significant balances on centralized platforms. Over time, that realization may accelerate movement toward self-custody and more decentralized infrastructure, where users retain direct control over their assets and are less exposed to centralized bankruptcy processes.

The Courtroom vs. the Ledger: Two Stories, One Collapse

At bottom, Bankman-Fried’s motion poses a simple challenge: if customers end up financially whole under the bankruptcy plan, how can a fraud conviction stand? The answer lies in distinguishing between ex post outcomes and ex ante conduct.

From the ledger’s perspective, the key question is whether value was preserved. The bankruptcy estate’s recovery record—enough to pay at least 118% of petition-date claims—suggests that, in dollar terms, most of the value was ultimately there or could be clawed back. From the courtroom’s perspective, the issue is different: were the rules followed, were customers told the truth, and were risks disclosed and managed as represented?

The fact that the estate recovered enough to pay claims at petition-date values does not resolve whether customer deposits were used as a funding source for Alameda, whether governance structures failed, or whether FTX’s users were misled about the security and segregation of their assets.

For crypto investors, the FTX case is likely to be remembered less for its final payout percentage and more for exposing the gap between solvency as a spreadsheet concept and solvency as a real-time, governance-driven reality. In legal terms, a customer can be “made whole” in bankruptcy while still having been “defrauded” in criminal law. The $16.5 billion surplus Bankman-Fried now cites does not close that gap; it simply makes the tension between the two frameworks impossible to ignore.