The Jay Cohen Trial - Day Seven

There's no point in sugar coating it; Cohen's chances of clearing his name are looking bleak. Even though this is a jury trial, the defendant's fate clearly lies squarely in the hands of Judge Griesa, who has already informed the court that he rejects the arguments made by the defense.

The government started the day by continuing its cross examination of Cohen. The fun started almost immediately, as U.S. Attorney Teresa Pesce asked Cohen to verify that SBET, the publicly traded company he used as a legal example for setting up World Sports Exchange (WSE), had closed down and that it's CEO, Mike Simone, was indicted under Missouri law for gambling violations. Pesce also asked Cohen to verify the accuracy of several exhibits in which WSE and/or persons employed by WSE told customers specifically that the customers could place bets--a challenge to the defense's assertion that all bets are placed by the operators in Antigua. (Cohen's attorney, Benjamin Brafmin, countered during his redirect by referencing an audio tape used as evidence in which a WSE operator told an undercover FBI agent that all bets occurred in Antigua.)

The government also attempted to establish that Cohen indeed did not seek a legal opinion from a criminal lawyer during his extensive research into whether WSE's activities would be legal.

Throughout the cross examination, Cohen elaborated several times on why he thought what he was doing was legal. During his testimony, and again during a short recess, Cohen was asked by the judge, at the request of the government, to stop injecting information into his answers that was not asked for in the question. The government particularly objected to Cohen's continuous referral to the fact that Group One, Cohen's former employer and an investor in WSE, consulted counsel when preparing WSE's private placement memorandum. Pesce explicitly reminded the court that such legal advice does not suffice as legal advice on criminal matters. Judge Griesa concurred.

The pivotal issue of the day surfaced when Pesce asked Cohen to verify his understanding that the transfer of information for assisting a bet is a violation of the Wire Act. When Cohen pointed to the exception outlined in Section B--[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--Pesce raised the question, "Isn't it illegal to place a bet in New York?"

Cohen answered, "No," however, Judge Griesa's ruling on the matter is what will count in the eyes of the jury. More on that in a sec...

Cohen's testimony ended shortly after noon, and as usual, the big show today came after the jury was dismissed. First on the agenda: the judge specifically addressed the question, "Is it illegal to place a bet in New York?"

Citing no specific precedent, he ruled that it is indeed illegal, and he based the ruling on New York State Penal Code 225. Thus, the defense that WSE's activities are under the exemption in Section B can no longer be used.

Brafman objected to Judge Griesa's interpretation for the sake of the records. (And for the record, the judge eluded to the fact that perhaps a Supreme Court or appellate court judge would see it differently.)

Further, Judge Griesa ruled that Cohen cannot use the defense that he modeled his business after the New York OTB, citing that what Cohen is accused of is not off-track betting.

Finally, the judge said that he will not allow the defense's state-of-mind argument--that the defendant did not knowingly use a wire transfer because he believed the bets were taking place in Antigua--either. The Government argued that the mens rea argument (in which a person cannot be convicted unless he or she knew that his or her actions were prohibited) does not apply to this case. Judge Griesa agreed.

The judge also conveyed his certainty that any criminal lawyer would have advised Cohen that his business would be illegal, had he sought advice during his research.

In closing, Judge Griesa expressed his concern that the jury would be misled and confirmed that he will explain to the jury that the aforementioned arguments are not valid.

Brafman argued to no avail that the judge was leaving the jury with no choice other than to convict Cohen.

In short, the defense has a mountain of Everest proportions to scale in order to win this case. If the you were to give odds on Cohen's chances of being acquitted judging by the proceedings to this point it wouldn't be pretty. Before you write his chances off though, keep in mind that the St. Louis Rams won the Super Bowl.

A side note: Both the government and the defense expressed an interest yesterday in calling additional witnesses to the stand. Both agreed today not to pursue their respective requests.

Another side note: I presume the government is unhappy with the coverage the trial has received in the press. As any thorough reporter would, I politely asked government attorney Joseph DeMarco after court was adjourned to verify a fact for me and he informed me that the government was not speaking to the press.

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