It's been a year since World Sports Exchange President Jay Cohen was found guilty of violating the federal Interstate Wire Act, and his appeal process is well under way. Cohen was sentenced August 9 to spend 21 months in prison and fined $5,000, and his challenge began a few weeks lager. A brief for an appeal was filed November 1 and the government filed its response January 15. On Friday, attorney Mark Baker filed Cohen's final brief, the last necessary step before a hearing date is to be set.
Cohen's March 2 response to the government's arguments outlines five specific points that the defense contends were key to overturning the conviction:
- Contrary to the government's response, the evidence failed to establish any substantive violations of 1084 and the jury instructions as to these counts were grievously in error.
A. Section 1084(b) exempts the transmission of wagering information from New York, a jurisdiction in which it is not a crime to place a bet.
B. The government's newly-revised position on appeal concerning the status of interstate off-track betting glaringly reveals how its contrary position at trial effectively eviscerated the defense in the eyes of the jury.
C. The government's contention that transmission of wagering instructions constitutes transmission of a bet or wager per se is entirely without merit.
D. The government's newly conceived argument that a contract to bet entitles both parties to a money or credit as a result of bets or wagers is procedurally and substantively defective.
E. The evidence failed to establish that defendant knowingly used a wire communication facility to transmit bets or wagers in foreign commerce.
- The rule of lenity mandates that the defendant's convictions be reversed and the charges against him dismissed.
- This court is well-positioned to adopt the a corrupt motive doctrine, which continues to occupy an unsettled area of law in this circuit and the Supreme Court, without injecting error into countless conspiracy convictions.
- The government's argument that the district court properly declined to permit the deposition of Gyneth McAllister [the then director of Antigua's Offshore Gaming, where Cohen's operations were licensed to operate] misapprehends both the substance and relevance of McAllister's proposed testimony.
- The government's response to the defendant's challenge to the district court's deficient instructions on aiding and abetting effectively advocates an unconstitutional constructive amendment to the indictment
A. The government's theory of aiding and abetting liability was predicated solely upon 18 U.S.C. 2(a).
Further, Baker argues that the government put together a "selective prosecution" against Cohen, and continued to pursue its case by "cobbling together marginally relevant authority, abandoning legal positions it maintained before the district court and .ignoring substantial authority that undermines its position."
Whether these arguments will persuade the United States 2nd District Court of Appeals that the charges against Cohen should be dropped won't be discovered for a while yet. No court date has been set yet, although it's believed that oral arguments could be heard within a few weeks.
Click here to read Cohen's original appeal, "Brief for the Appellant in the case of US vs. Jay Cohen," November 1, 2000.
Click here to read the government's response.
Click here to read Cohen's "Reply Brief to government's response," March 2, 2001.