HR556 - Internet Gambling Bill

[MarkDel]

JC,

I'm sure your lawyers have already told you this, but there is VAST case law to support your position that the act of PLACING a bet is legal in New York. The act of TAKING the bet is what's illegal. And the NY law is very, very similar to Federal law, which is why you were told what you were told (as I was by my lawyers) by your lawyers before you went to Antigua...that you were NOT breaking any law provided you were a foreign corporation, etc...

Have you noticed how Mary Jo is scrambling to convince Bush that she deserves to keep her job? Her attacks on Clinton and subsequent investigation into the Rich pardon is all a result of an edict which came down from the Justice Department shortly after Ashcroft was confirmed...essentially this said that all current US Attorneys would be given 3-6 months to prove that they were worthy of staying on, or else they would be replaced by Bush appointees. I have an old college buddy who works for the Republicans in Washington and he told me Mary Jo's "auditioning" for Bush to prove she's not a Democratic party hack...and you can bet she will be merciless on Clinton. Hopefully her pursuit of a real criminal like Clinton will get her off your back.

[The Guesser]

With the growing acceptance and use of Neteller and/or Paypal, and proably others getting ready to join the fray, aren't any of these "Funding Prohibition Laws" pretty meaningless, even if they pass?

[aknorman]

MarkDel-You are correct when you state that the TAKING of bets is what is illegal in New York State. However, if you don't mind, I'd like to refine your statement even further to reflect what actually constitutes the ILLEGAL acceptance of bets in this State. Acceptance of bets by defendant ON A PROFESSIONAL BASIS is corpus delicti of crime of bookmaking. People v. Grieco, 1962, 237 N.Y.S.2d 917. (Note: all caps was done by me for emphasis).

This above case clearly allows for accepting bets on a Non-Professional basis. That is, in a Non-Business manner. The New York State anti-gambling laws were enacted to curtail and stop the practice of gambling AS A BUSINESS only. Personal or casual gambling is both permitted and lawful conduct in this State. I really want to emphasize that New York State law only prohibits gambling that is being conducted AS A BUSINESS. And, if it is being done as a business, it is only illegal (in fact it is criminal) conduct only for those engaged in or operating the business. The mere customer's conduct is in fact legal AT ALL TIMES. If the People can't prove that gambling AS A BUSINESS took place in this State then no illegal or criminal activity is being done here.

No matter what else, the State must prove a person was operating an illegal gambling business IN THIS STATE in order to convict. Therefore, I'm alarmed that JC was even charged let alone convicted in this State. I believe two facts prevail here. (1) It is always legal conduct to place bets within New York State. And, (2) it is lawful conduct to accept bets AS A BUSINESS in Antigua. Legal conduct here plus legal conduct there clearly results in legal conduct, PERIOD.

It's like math, a positive number times a positive number always equals a positive number. Apparently, the prosecutors were allowed to multiply two-positive statements here and show that the result could only be a negative (i.e. guilty). Unbelievable and completely contradictory to the logic and reasonableness that all law is supposed to predicated on here in the USA.

So, what's the problem. Answer: Power-mad and money-hungry PROSECUTORS (like Rudy Guiliani). They prosecute these high profile cases to make a name for themselves so they can "move up the ladder" and get even more power and money. These prosecutors have almost virtual immunity from civil lawsuits and complete discretion on whom to prosecute. I'm not aware of any citizen's group or Government agency that is set-up to oversee them. They are accountable to no one, except maybe Congress and I'm not even sure about that either. And, we citizens sit idly by and let these unconstitutional and anti-democratic laws take away our rights because we'd have to have another civil war just to change them. And who wants that. Note: I strongly believe that voting doesn't really work, and I don't even want to get started down that path. So, we accept the lesser of these two evils. Even though our lawmakers were never supposed to place us in in a position like this, they nevertheless did. Again, I believe all governments are corrupt because human beings are involved in running them. End of discussion, period.

MarkDel, you also stated in another post that it is presumptive that a person may be bookmaking if they actually place a bet in excess of $5,000. The reasoning is no mere player would ever bet that much on a game. So, it must be a "lay-off" bet from a person operating a bookmaking business. I've never seen this in any law or case law that I've read. However, just because I never read it, doesn't mean I'm disputing it. It's probably true.

The courts in this Country always allow this presumptive BS if it aids any state or the Federal Government . For example, ignorance of the law is no excuse because it is PRESUMED that all citizens know the law. If this is so, then why to we need Appellate Courts, Court of Appeals (i.e State Supreme Courts) and the Supreme Court of the United States to overturn and/or clarify lower court decisions. These lower court judges should know the law better than any citizen. Yet, when they are overturned it is only because they are ignorant of the law. Ahhhh, the old double-standard.

Ignorance of the law is no defense because then the System couldn't fleece you. Our Justice System has become the "Fleece and Release System". Assuming that a person's conduct is not serious, then the only ones who end up in jail or prison are those who can't pay. These courts will fine you, or the prosecutors will offer some deal in which you pay, no matter how many times you're charged with something minor until you can't pay anymore. Then, it's off to jail you go so that we the taxpayers can now pay. The System makes money no matter what the result. Either through graft or increases in taxes.

Anyway, the only $5,000 I'm aware of in the law is used to delineate between misdemeanor and felony gambling. In New York State, a person is considered to be promoting gambling (i.e. bookmaking) at a felony level, if on any single day, he (or she) accepts more than 5-bets totaling more than $5,000.

For example, (assuming that a person is in fact bookmaking) if on a given day, a person accepts 6-bets totaling $5,500 then he or she can be charged with felony promoting gambling (one count). If, on another day, this same person accepts 6-bets totaling only $4,400 then he or she can only be (properly) charged with misdemeanor promoting gambling (one count). In order to be charged with felony promoting gambling, on any given day, a person must do both (i.e. accept more than 5-bets that total more than $5,000). If both these requirements are not met on any single day then only a misdemeanor can be properly charged.

Felony possession of gambling records is almost the same as felony promoting gambling. The more than 5-bets totaling more than $5,000 requirements still apply. However, the felony possession is cumulative. It can be charged even if on any single day a person did not accept more than 5-bets that total more than $5,000. All a bookmaker has to do is possess gambling records that show more than 5-bets that total more $5,000.

For example, let's say that a bookmaker accepted one $2,200 bet from each of four different individuals every day for one week. Thus, the bookmaker on each day took four bets that totaled $8,800. The bookmaker is arrested based on wiretaps and all gambling records are seized. The most this person could be charged with is seven misdemeanor counts of promoting gambling and one felony count of possession of gambling records.

The reasoning is as follows. Even though for each day the bookmaker accepted bets that totaled more than $5,000 ($8,800 to be exact), he or she did not accept more than 5-bets (4-bets to be exact) on any given day. Therefore the promoting gambling can only be charged at a misdemeanor level for each of the seven days. Thus, seven misdemeanor counts of promoting gambling.

However, he or she can be charged with only one count of felony possession of gambling records since he or she will have cumulative records that show 28-bets (4-bets per day times 7-days) that total $61,600 ($8,800 per day times 7-days). This obviously is more than 5-bets that total more than $5,000 in his or her possession. Thus, one felony count of possession of gambling. records.

Let's assume that on Saturday that two of the individuals place 2-bets for $1,100 each. Thus, on Saturday the bookmaker took in 6-bets that still total $8,800. Now, he or she can be charged with one felony count and six misdemeanor counts of promoting gambling. He or she can still only be charged with one felony count of possession of gambling records. Remember it's cumulative and not daily activity. I am not aware of how a bookmaker can be charged with more than one felony count of possession of gambling records at a time. The only way I see a second felony for possession of gambling records is if he or she is arrested again for bookmaking and has records showing more than 5-bets that total more than $5,000. But, I wouldn't bet on it (pun intended).

Lastly, let's assume that each of the four-bettors only bets $110 per bet. Thus, the bookmaker took 30-bets totaling $3,300 for the week. He or she could only be charged with at most seven misdemeanor counts of promoting gambling and one misdemeanor count of possession of gambling records. No felonies could be properly charged.

As you can see, there are numerous ways to charge someone who is involved in bookmaking. Whether it is a felony or misdemeanor promoting or possession depends entirely on the facts and circumstances regarding the arrest.

To summarize, I strongly believe that all sports gambling is legal conduct in New York State except for the person or persons doing it AS A BUSINESS. And, the New York State anti-gambling laws were enacted to make the BUSINESS OF GAMBLING both illegal and criminal. None of these laws criminalize or prohibit sports gambling unless it is being done AS A BUSINESS.