BRAFMAN & ROSS, P.C.
ATTORNEYS AT LAW
767 THIRD AVENUE
26TH FLOOR
NEW YORK. NEW YORK 10017
TELEPHONE: (2l2) 750-7800
FACSIMILE: (212) 750-3905
MARK M. BAKER - OF COUNSEL
BENJAMIN BRAFMAN
CHARLES A. ROSS
JENNIFER A. LIANG
February 16, 2000
VIA HAND DELIVERY
The Honorable Thomas P. Griesa
Chief United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: UNITED STATES V. JAY COHEN
S2 98 CR 484 (TPG)
Dear Chief Judge Griesa:
This letter is respectfully submitted in response to this Court's inquiry at the conclusion of today's
proceedings as to what constitutes a "transmission" for purposes of 18 U.S.C. § 1084. This letter addresses
only the specific question raised by the Court this afternoon. Mr. Cohen intends to file his full requests to charge
by Tuesday, February 22, 2000.
To reiterate the defense position articulated in Court, Mr. Cohen consistently has maintained that he
structured World Sports Exchange ("WSE") specifically to ensure that no "transmission in interstate or foreign
commerce of bets or wagers" ever takes place. Before an Individual in any location can place a bet with WSE,
that individual must first establish an account with WSE and send money to Antigua to fund that account. The
money, plus or minus wins or losses, remains on deposit in Antigua until the individual requests a refund. The
WSE database, located in Antigua, tracks the balance in the account. Once an account is established, the
individual may contact WSE either by telephone or via the Internet to request the placement of bets in Antigua
using the funds already on deposit in Antigua.
In the case of a telephone contact, the individual places a call to WSE which is answered by a WSE
telephone operator in Antigua. The individual states his intention to place a bet from his account in Antigua.
This constitutes the transmission of information assisting in the placing of bets or wagers, not the
transmission of a bet or wager per se. Upon hearing the individual's intention, the WSE telephone operator in
Antigua places the bet by typing the desired information into a computer located in the WSE office in Antigua.
This computer accesses the WSE database server, which is also located in the WSE office in Antigua. The
database server verifies that the account has sufficient funds, determines that the line on which the bet is being
placed is correct, and debits the account. Only then does the database server accept and record the bet, and
cause a "bet accepted" message to appear on the WSE telephone operator's computer screen in Antigua.
Until the database server has verified the information and debited the account in Antigua, no bet has taken
place. After the bet takes place, the WSE telephone operator orally confirms this to the individual on the other
end of the telephone line. Because the transmission of the bet has taken place entirely within the WSE office in
Antigua, this oral confirmation constitutes no more than information assisting in the placing of bets and wagers.
An Internet contact with WSE works similarly. The individual, who may be physically situated anywhere,
logs onto his computer and accesses the WSE website from the WSE web server in Antigua. The web server
functions like the WSE telephone operator. The individual, by clicking "place wager" on his computer screen,
communicates to the web server his intention to place a bet. This constitutes the transmission of
information assisting in the placing of bets or wagers, not the transmission of a bet or wager per se.
The web server places the bet by transmitting this information to the database server. The database server
verifies that the account has sufficient funds, determines that the line on which the bet is being placed is correct,
and debits the account. Only then does the database server accept and record the bet, and notify the web
server that the bet has been accepted. The individual, who has accessed the website through the web server,
sees this message on the web server. Until the database server has verified the information and debited the
account in Antigua, no bet has taken place. Because the transmission of the bet has taken place entirely within
the WSE office in Antigua, the bet accepted message which appears on the WSE web server constitutes no
more than information assisting in the placing of bets and wagers.
Section 1084(a) prohibits the knowing use of 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." 18 U.S.C. § 1084(a). Section 1084(b) provides that "[n]othing in [Section 1084]
shall be construed to prevent the transmission in interstate or foreign commerce ... 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." 18 U.S.C. §
1084(b).
Accordingly, the Government must prove, among other elements, that a bet or wager was transmitted in
interstate or foreign commerce, and that Mr. Cohen knew that a bet or wager was transmitted
in interstate or foreign commerce. The jurors should be instructed that if they find that there was no transmission
of a bet or wager in interstate or foreign commerce, they must acquit Mr. Cohen on each count. Likewise, if the
jurors find that Mr. Cohen did not know that bets or wagers were being transmitted in interstate or foreign
commerce, they must acquit Mr. Cohen on each count.
As noted, Mr. Cohen will submit his complete requests to charge on Tuesday,
February 22, 2000.
Respectfully,
Benjamin Brafman
cc: Joseph V. DeMarco, AUSA
Teresa A. Pesce, AUSA
Jay Cohen