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The judge today in Jay Cohen's suit decided not to allow a motion made by the prosecution to preclude certain evidence that is not relevant to any of the elements of offenses charged but instead invites jury nullification. In layman's terms, this was a desperate attempt by the US government to try to prevent Jay from offering crucial evidence that will help his case immensely. The judge found in favor of Cohen. An important stepping stone for next month's trial.
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For more on this story click on this link below which may or may not work. If it does not, cut and paste it.
www.bettorsworld.com/stingcc/
http://www.bettorsworld.com/stingcc/ -
sorry....
http://www.bettorsworld.com/stingmarket/
this is the correct page, my Buzz Bin Extra. Cut and paste link. HTML not working in Oddswiz section.Comment
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Sting,
I'm going to enjoy these court write-ups. Not being a lawyer (or even an American) I'm going to have questions from time to time. (Feel free to tell me to shut the hell up if it gets tedious.) Here's a first:
I take it from the recent article that Cohen and his legal team might awnt to present evidence to invite Jury Nullification. While I would never want to see an accused denied the right to present his best defence, if that's the way the defence takes this, is it really serving the i-gaming industry like you claim -- or just Cohen?
If it's perceived that a Not Guilty verdict was a case of Jury Nullification, that what that means is that "this" jury let "this" gentleman go, but the law stays on the books and the government is welcome to try to get the "next" jury to find the "next" guy guilty. Right?
So wouldn't it be better for the industry if Cohen was convicted and then the law itself was deemed unconstitutional on appeal? Then the government couldn't go after anybody anymore.
Thanks,
ShawnComment
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This is a highly unusual circumstance. Bottom line is that the prosecution came
ill-prepared. I almost felt sorry for the prosecutor who was completely inept. A lot of what they do not want to come out is the idea that Jay believed he was operating legally based on the laws of Antigua and this might sway the jury. I hate to put a damper on this also BUT the judge apparently will be disregarding the idea that this all occurred in Antigua since Jay is an American citizen. Why? I don't know the specifics here. They also do not wish to have the jury knowing what actions Jay took in trying to make absolute sure that what he was doing he thought to be completely legal.
As far as going after other people, if Jay IS found convicted, these couple hundred operators now will simply decide to remain in their offshore heaven, able to travel the whole world with the exception of the United States. Based on what goes on with the Cohen trial, they will get a feel as to whether their own cases have any merit, if not they will simply plea bargain or remain fugitives of the law. Should Cohen prevail, why would the government wish to risk making fools of themselves all over again if they believe this to be a no-win situation with a few hundred offshore gaming operations out there now? Also understand that the individuals who have chosen to remain fugitives were NOT conducting any physical business here on US soil. Had they been, this would have been a "no-win" situation for them. I really don't believe the US Government would want to subject themselves to this again when future operators can simply point to the Cohen case, but this also depends on all the evidence including one specific: "Because of the NEWNESS of the Internet, Mr. Cohen may not have known that the Internet fell under such a law (regarding wire transfer of illegal material). After this trial, I guess one can suppose they will know NOW especially if a law is past to ban Internet gambling.Comment
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shawn - to answer one question, they cannot just get another jury and try mr.cohen on the same issues and charges. there is a legal doctrine know as collateral estoppel in civil cases and double jeopardy in criminal cases that prevents this.
as far as the evidence being allowed in here, the judge has basic rules of evidence to follow but there is some latitude in determining what is relevant.
from the sounds of things, it may not be a defense to the crimes charged that mr.cohen thought he was doing this legally. if it is not a defense the judge could prevent the defense from presenting such evidence. still the defense will have to be careful when arguing if intent is not an element of the crime b/c you are not allowed to come out and directly say to the jury - "hey, we know that technically he committed the crime but comon, he was not trying to break the law."
it has to be a soft sell.
if i knew more about the case, the charges and the elements of those charges, i could probably let you know more.Comment
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Parlay, I think you are pretty much on the mark. If I have not pointed it out already, let me say that Cohen has an excellent attorney in Brafman and the judge seems to respect him and said at least three times that Mr. Brafman was not a person who would put on a show for the jury. This was a major hurdle that they had to get over and the concern about losing the argument was quite obvious.
Jay's face was beat red the entire time. He wants so desperately to speak and plead his case. But he is relieved.Comment
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From reading about this, a few thoughts things strike me:
1) Like Dana, I'm wondering what Cohen is defending himself from. Either way, if the crux of Cohen's defense is that he never "knowingly" accepted bets coming from the USA, in violation of the Wire Act, then I'd have to say that his case is very weak.
Let's face facts, everybody knows that offshore bookies (then and now) depend on American business. Why else would they advertise in American magazines?
Regardless of the letter of the law, stating that he never knew that some (most?) of his customers were from the USA, would strain Cohen's credibility greatly, and probably would be very damaging. It wouldn't take too much evidence to convince a judge and jury otherwise - and a jury never likes a liar.
2) If, as I am hoping, the defense is concentrating on a matter of jurisdiction, then the defense would seem to be much stronger to me.
Cohen must convince the judge and jury that he shouldn't even be on trial - at least not in the USA - because he was operating elsewhere under completely legal footing.
It's as if we (the USA) arrested an Amsterdam shop-owner while he was on vacation in Chicago because he once sold me some weed while I was on vacation in the Netherlands. Ridiculous.
If the judge won't do the right thing and throw this out of court, then the jury must be convinced to do the right thing.
I'm not a lawyer, but I would think that would be the smartest defense.
3) It seems to me that it would be very helpful if Cohen had some of his clients on the stand, verifying that WSEX is an honest, professional operation, and that they knew they were dealing with an Antiguan company. Character witnesses. Of course, those witnesses would have to be Canadian or other non-Americans, in order to keep away the possibility of retalitory prosecution.
My question: Is this going to happen? Has anybody volunteered or been subpoenaed?
Just my $.02
LouComment
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http://www4.law.cornell.edu/uscode/18/1084.text.html
http://www4.law.cornell.edu/uscode/18/371.text.html
I am charged with one count of Conspiracy to violate Section 1084 and seven counts of violating Section 1084. I will try to get all of the motions in an electronic format so they can be posted here.
Thanks for all the support,
Jay
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Sec. 1084. Transmission of wagering information; penalties
(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate
or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the
transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information
assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.
(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting
of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from
a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal.
(c) Nothing contained in this section shall create immunity from criminal prosecution under any laws of any State.
(d) When any common carrier, subject to the jurisdiction of the Federal Communications Commission, is notified in writing by a Federal, State, or
local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of
transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal, State or local law, it shall discontinue or
refuse, the leasing, furnishing, or maintaining of such facility, after reasonable notice to the subscriber, but no damages, penalty or forfeiture, civil
or criminal, shall be found against any common carrier for any act done in compliance with any notice received from a law enforcement agency.
Nothing in this section shall be deemed to prejudice the right of any person affected thereby to secure an appropriate determination, as otherwise
provided by law, in a Federal court or in a State or local tribunal or agency, that such facility should not be discontinued or removed, or should be
restored.
(e) As used in this section, the term ''State'' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a
commonwealth, territory or possession of the United States.
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Sec. 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not
exceed the maximum punishment provided for such misdemeanor.Comment
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DC, I guess I am not much on the "knowingly" language either but here goes if it is not too much to ask I would like you to do me a favor and answer a few questions if you will pertaining to your former profession: If you have some time please try and find out when the revisions of title 18 section 1084 were made I have enclosed what I thought would be most helpful of Chapter-50...Everything that I could find said as of 01/05/2000 maybe that means everything was updated yesterday? I doubt it, anyway I hope this isn't much of a bother...For other readers this will be used to prove a point later...Thanks, Chester. DON BEST THIS IS WAITING FOR AN ANSWER.
1084. Transmission of wagering information; penalties.
HISTORICAL AND REVISION NOTES
This section (section 23 of act May 24, 1949) inserts a new chapter 50 (secs. 1081-1083) in title 18, U.S.C., incorporating, with slight changes in phraseology, most of the provisions of act of April 27, 1948 (ch. 235, 62 Stat. 200), which was not incorporated in title 18 when the revision was enacted. Subsection (e) of section 1 of such act, defining ''United States'', when used in a geographical sense, was omitted as covered by section 5 of such title 18. Section 4 of such act, which provided that nothing in such act ''shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof, or to preclude action, otherwise valid, by any State or Territory with respect to the navigable waters within the boundaries of such State or Territory'', was omitted as surplusage and unnecessary.
AMENDMENTS
1961 - Pub. L. 87-216, Sec. 3, Sept. 13, 1961, 75 Stat. 491, added item 1084. 1949 - Act May 24, 1949, ch. 139, Sec. 23, 63 Stat. 92, added chapter 50 and items 1081 to 1083.
[This message has been edited by Chester (edited 01-07-2000).]Comment
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Jay-
I wish you and your family the very best, in what must be contstant "headaches and stomach cramps", relating to this particular case and the charges levied against you.
I know each and every "offshore" operator, myself included, have been watching your predicament and the result thereof.
If you do not find the next question too intrusive- Who are your attorneys?
Keep up the good fight.
Your biggest fan,
Dan Lewis; Manager-Sterling Sports and RaceComment
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I believe this has everything to do with the fact that he is an American citizen, regardless of where he is taking the bets. This is the impression I got.
One thing that through me for a loop. The complaint mentions that agents placed wagers via phone, yet the entire case consited of wagers that were placed via the Net. At one point, Jay, your attorney commented to the judge that there was evidence that phone wagers were placed, but he made another remark that I did not quite catch....however, this particular evidence (re wagers placed over the phone by agents) appeared to me not to be relevant here...at least that was the impression that I got. In the end the judge commented that because the phone was not cited in this case, the motion would stand as is, although I will say the judge seemed to stand by the idea that computers contained wires and thus they could be applied to the Wire Act....he did state that this would be interpretted more readily come trial time. We can only hope for the best.Comment
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