Feds Fumble Early on During Cohen Trial

It may not be the

It might be a tad premature to call it the “Trial of the Century”, but the court case currently underway in the U.S. District Court in Manhattan, which pits the Department of Justice vs. Jay Cohen, has implications that go far beyond participants in off shore sports betting.

The verdict in this landmark case will have consequences that seriously impact the burgeoning Internet gaming industry.

In bringing its case against Cohen to court, the government is pretty much putting all its legal eggs in one basket. It is relying on its interpretation that Cohen is guilty because he violated a 40-year-old federal statute that prohibits the transmission of wagers by U.S. customers in interstate or foreign commerce.

The feds maintain that this law is applicable to Internet wagering. And they are trying to validate their position by presenting a parade of government witnesses: FBI agents who opened up telephone wagering accounts with Cohen’s Antigua-based company, World Sports Exchange, and made bets.

The interpretation of who has jurisdiction over a website located in a foreign country that offers gambling, an activity that is legal in that locale, will be one of the key questions to be answered in this trial. Closely related to that is another issue the government is trying to use in prosecuting Jay: the dubious claim that WSEX did not actually operate from Antigua.

This is the first time the government has been challenged on this issue in court by a determined defendant backed by high powered legal counsel.

Despite all the powerful machinery at its disposal, prosecutorial inexperience and ineptitude have already been displayed, according to a Sports Book Scene source.

We’ve also heard from Jay, and are happy to report that he’s feeling good and is, “pleased to finally be having my day in court.” After two years of waiting, he is actually energized by the courtroom proceedings. However, Jay feels it would be inappropriate to comment while the trial is in progress.

The early going has been choppy, but there are indications defense arguments are resonating with presiding Judge Grisea. After listening to tapes of FBI agents speaking with WSEX, one source close to the case believes the judge is starting to realize the uniqueness of this hearing, and that the defense’s arguments have merit, even though he might personally disagree with them.

Cohen’s lawyer, Ben Brafman, has argued that neither placing a sports bet in New York State nor receiving such a bet in Antigua is an illegal act.

Furthermore, the defense insists that since the law the government is using as its standard in prosecuting Cohen is 40 years old, it could not possibly apply to the Internet.

To hammer the point more convincingly, Brafman cited proposals in congress for bills that would outlaw online wagering. Such legislation would not be necessary if, in fact, current laws were applicable.

Our source indicated that the government’s smoking gun – tapes of agents who became customers of WSEX – was not having the intended or desired effect upon the jury. These, incidentally, are 12 New Yorkers. We don’t wish to generalize, but having spent many years working in the Big Apple, the descriptive word that comes to mind for its residents is pragmatic. These jurors are not likely to accept at face value specious contentions just because they are uttered by a government employee, even if he or she is in law enforcement.

This is a complex case, and many of the judge’s rulings could be open to question. Certainly if the defense loses it appears there are valid points that might be argued successfully before an Appeals court.

The case could last two to three weeks. When all the arguments have been heard, and the witnesses cross-examined, the verdict could be greatly influenced by how the judge charges the jury.

But even if the judge issues a strict charge to jurors on which issues they may deliberate, and what law must be considered, a casual reading of those who will decide this case is encouraging to Jay’s supporters.

According to our source, the jury is not buying the defense’s case, and actually looks disgusted with some of the government’s arguments. Incidentally, the government’s net gambling losses during its celebrated undercover operation amounted to $72.50.

Maybe the feds are going after Jay for the wrong crime. Perhaps they should consider petty larceny.

Whatever the outcome of this case, which we fervently hope and absolutely believe will be decided in Jay Cohen’s favor, it is most unlikely that the government will be able to stop Americans from gambling over the Internet. But the jury’s decision will influence the thinking of lawmakers by establishing a landmark legal precedent that must be respected.

Finding press or media coverage of this case is not easy. Currently, there are two high profile cases in progress in New York, and presumably top court reporters are following those trials, which might explain the paucity of coverage.

The most up-to-date and comprehensive reporting of this case, as far as we have seen, is being done on the Internet by Sting. His reports are available at www.theprescription.com.
thedailyspread.com | February 18th, 2000

– – – – – – – – – – – –About the writer
A long time sports betting columnist, Buzz Daly

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