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TABLE OF CONTENTS
Preliminary Statement 1
Reasons for Granting the Petition For Rehearing 4
I. The Panel's Decision Overlooks Those Undisturbed Holdings in Which Other
United States Courts of Appeals and, Implicitly, this Court and the United
States Supreme Court, Embraced the Powell Doctrine. 4
A. The Panel Overlooked Specific Aspects of United States v. Feola, As Well
as the Earlier Holding in United States v. Keegan Which Seemingly Embraces
the Powell Doctrine 5
B. The Panel Overlooked Holdings of Other Circuits Adopting the Powell
Doctrine. 7
C. The Panel Overlooked this Court's Ruling in United States v. Crimmins,
decided after United States v. Mack, Which Effectively Adhered to the Powell
Doctrine 9
II. The Panel's Holding that Betting is Not "Legal" in New York Despite the
Fact that it is Not a Crime Directly Conflicts with the First Circuit's
Holding in Sterling Suffolk Racecourse v. Burrillville Racing and the
Demonstrated Intention of the Drafters of § 1084. 10
III. The Panel's Groundbreaking Holding that, as a Matter of Law, Wagering
Instructions Constitute "Bets" Per Se, Criminalizes the Longstanding,
State-Sanctioned Practices of Off-Tracking Betting Enterprises in Numerous
States, Including New York, in Direct Contravention of the First Circuit's
Holding in Sterling and the Legislative History of § 1084. 13
IV. The Panel's Holding that Defendant Need Not Know He Was Transmitting a
"Bet" Conflicts with Settled Law of the United States Supreme Court that the
Scienter Requirement Applies to Every Element of the Offense. 15
Conclusion 15
TABLE OF AUTHORITIES
FEDERAL CASES
Cruz v. United States, 106 F.2d 828
(10th Cir. 1939) 8
Fall v. United States, 209 F. 547
(8th Cir. 1913) 8
Hamburg-American Steam Packet Co. v. United States,
250 F. 747 (2d Cir. 1918) 4
Landen v. United States, 299 F. 75
(6th Cir. 1924) 4, 7
Lee v. Commissioner of Internal Revenue,
155 F.3d 584 (2d Cir. 1998) 5, 10
Sterling Suffolk Racecourse Ltd. Partnership v.
Burrillville Racing Ass'n, Inc., 989 F.2d 1266
(1st Cir.), cert. denied, 510 U.S. 1024 (1993) i, 10, 11, 13
United States v. Barker, 514 F.2d 208
(D.C. Cir. 1975) (en banc) 7
United States v. Blair, 54 F.3d 639
(10th Cir. 1995) 4, 8
United States v. Crimmins, 123 F.2d 271
(2d Cir. 1941) i, 2, 5, 9, 10
United States v. Eisenberg, 596 F.2d 522
(2d Cir. 1979) 4, 9
United States v. Feola, 420 U.S. 671 (1975) i, 4-6, 9
United States v. Freed, 401 U.S. 601 (1971) 6
United States v. Keegan, 325 U.S. 478 (1945) i, 2, 5-7
United States v. Kelley, 254 F.Supp. 9
(S.D.N.Y. 1966) 12
United States v. Mack, 112 F.2d 290
(2d Cir. 1940) i, 4, 9
United States v. Mauro, 501 F.2d 45 (2d. Cir),
cert. denied, 419 U.S. 969 (1974) 10
United States v. Murray, 928 F.2d 1242
(1st Cir. 1991) 4, 8
United States v. Previte, 648 F.2d 73
(1st Cir. 1981) 7
United States v. Thomas, 887 F.2d 1341
(9th Cir. 1989) 4
United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) 15
STATE CASES
People v. Powell, 63 N.Y. 88,
2 Cow. Cr. Rep. 283 (1875) passim
Watts v. Malatesta, 262 N.Y. 80 (1933) 12
FEDERAL STATUTES AND RULES
18 U.S.C. § 371 2
18 U.S.C. §1084 passim
18 U.S.C. § 1084(a) 2
18 U.S.C. § 1084(b) 10, 11
Fed. R. App. P. 35(a) 2
Fed. R. App. P. 35(b)(1)(A) 2
Fed. R. App. P. 35(b)(1)(B) 2, 3
Fed. R. App. P. 40 2
Second Circuit Local Rule 35 2
Second Circuit Local Rule 40 2
STATE STATUTES
N.Y. Gen. Obl. Law § 5-419 12
OTHER AUTHORITIES
H.R. Rep. No. 87-967, 87th Cong., 1st Sess. (1961)
reprinted in 1961 U.S.C.C.A.N. 2631 12 UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 00-1574
UNITED STATES OF AMERICA,
Appellee,
-against-
JAY COHEN,
Defendant-Appellant.
On Appeal From a Judgment of the United States
District Court for the Southern District of New York
PETITION FOR REHEARING FOR JAY COHEN
WITH A SUGGESTION FOR A REHEARING EN BANC
Preliminary Statement
United States v. Jay Cohen is no ordinary case. Today an entire offshore
gaming industry, as well as numerous state-sanctioned off-track betting
enterprises, flourish with hundreds of companies and Internet websites
operating unencumbered by United States Government interference. Yet
Defendant-Appellant Jay Cohen alone faces time in federal prison for such
conduct. Mr. Cohen's former company, World Sports Exchange, was wholly
located, licensed and regulated in the sovereign nation of Antigua. It was
the most reputable business in the offshore gaming industry, yet was singled
out by the United States Attorney's Office for the Southern District of New
York at the behest of an influential private law firm representing the major
sports leagues. The Government concedes that there was never any allegation
of fraud or wrongdoing in the operation of World Sports Exchange. For the
reasons set forth herein and in Appellant's briefs, this conviction is wrong
and should be reheard and reversed.
Pursuant to Federal Rules of Appellate Procedure 40 and Local Rule 40, Jay
Cohen ("Defendant") respectfully petitions for a rehearing of the appeal
from a final judgment of the United States District Court for the Southern
District of New York (Hon. Thomas P. Griesa), rendered on August 10, 2000,
convicting him upon Indictment No. S2 98 CR 434 (TPG), pursuant to a jury
verdict, of violations of 18 U.S.C. § 371 (Count One) and 18 U.S.C. §
1084(a) (Counts Two through Eight). In a judgment entered on July 31, 2001,
a Panel of this Court affirmed the judgment of the District Court
(Addendum).
Pursuant to Federal Rules of Appellate Procedure 35(a) and (b)(1)(A) &
(B), as well as Local Rule 35, Defendant also suggests that the court rehear
this case en banc. Defendant respectfully submits that the Panel decision
affirming the judgment herein conflicts with a prior decision of the United
States Supreme Court, United States v. Keegan, 325 U.S. 478 (1945), and a
prior decision of this Court, United States v. Crimmins,123 F.2d 271 (2d
Cir. 1941). "[C]onsideration by the full court is therefore necessary to
secure and maintain uniformity in the court's decisions."
Additionally, the instant petition raises one or more questions of
exceptional importance. First, the Panel's decision rejecting the corrupt
motive doctrine established in People v. Powell,63 N.Y. 88, 2 Cow. Cr. Rep.
283 (1875), "conflicts with authoritative decisions of other United States
Courts of Appeals that have addressed the issue." Fed. R. App. P.
35(b)(1)(B).
Second, the Panel's conclusion that, for purposes of § 1084, betting is not
"legal" in New York despite the fact that it is not a crime conflicts with a
decision of the First Circuit, with the intention of the statute's drafters,
and with established legal principles in the State of New York.
Third, the Panel's unprecedented holding that wagering instructions
constitute "bets" per se effectively criminalizes the operation of
state-sanctioned off-track betting entities in several states. Such
criminalization contravenes not only the laws and policies of such states,
but also a decision of the First Circuit and the legislative purpose of §
1084.
Finally, the Panel's holding that defendant need not know that the
information transmitted in foreign commerce was in fact a bet or wager
conflicts with fundamental principles of statutory construction as
articulated by the United States Supreme Court. Reasons for Granting the
Petition For Rehearing
I. The Panel's Decision Overlooks Those Undisturbed Holdings in Which Other
United States Courts of Appeals and, Implicitly, this Court and the United
States Supreme Court, Embraced the Powell Doctrine.
In holding that "whatever remains of Powell does not apply to this case[]"
Opn. at 6, the Panel explained:
The Powell doctrine was echoed in federal cases from the first half of the
last century, but many circuits have since, in effect, moved away from the
doctrine. Compare e.g., Landen v. United States, 299 F. 75 (6th Cir. 1924)
(applying Powell to drug wholesaler's conspiracy to sell intoxicating liquor
for nonbeverage purposes without the necessary permit), with United States
v. Blair, 54 F.3d 639 (10th Cir. 1995) (involving, as does this case,
offshore bookmaking in violation of §1084); United States v. Murray, 928
F.2d 1242 (1st Cir. 1991) (involving an illegal gambling business in
violation of 18 U.S.C. §1955); United States v. Thomas, 887 F.2d 1341 (9th
Cir. 1989) (involving trafficking in wildlife that the defendant should have
known was taken in violation of state law).
Opn. at 7.
Upon then noting that "[a]lthough this Court has long expressed its
discontent with the Powell doctrine, we have done so only in dicta in cases
involving conspiracies to commit acts that were not 'innocent in
themselves[]'", Opn. at 7, the Panel mentioned only United States v. Mack
112 F.2d 290, 292 (2d Cir. 1940); United States v. Eisenberg, 596 F.2d 522,
526 (2d Cir. 1979); and Hamburg-American Steam Packet Co. v. United States,
250 F. 747, 759 (2d Cir. 1918). Additionally, the Panel referred to United
States v. Feola, 420 U.S. 671 (1975), for the proposition that "the Supreme
Court, in another context, rejected the notion that a federal conspiracy
conviction required proof of scienter." Opn. at 9. Based on these citations
alone, as well as an additional reference to the American Law Institute,
Opn. at 8, the Panel concluded that "the Powell doctrine does not apply to a
conspiracy to violate 18 U.S.C. § 1084." Opn. at 9.
Most respectfully, given the body of case law from several other Circuit
Courts that has never been overruled, including two Circuits even relied
upon by the Panel, and considering the precise, albeit wholly overlooked,
positions taken by the Supreme Court in Feola and United States v. Keegan,
325 U.S. 478 (1945), the Panel's analysis is strikingly insufficient and
places this Court squarely in conflict with other United States Courts of
Appeals and with at least one prior unmentioned decision of this Circuit,
United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941). In view of the maxim
that "one panel of this circuit will not overrule another; Panels are to be
overruled only by the court en banc", Lee v. Commissioner of Internal
Revenue, 155 F.3d 584, 587 (2d Cir. 1998), the full Court should convene and
rehear Defendant's appeal.A. The Panel Overlooked Specific Aspects of United
States v. Feola, As Well as the Earlier Holding in United States v. Keegan
Which Seemingly Embraces the Powell Doctrine.
Wholly unmentioned by the Panel in discussing United States v. Feola is the
Supreme Court's express refusal therein to pass on the Powell doctrine and
reservation of the matter for another day. Specifically, the Feola Court
noted: "the conduct proscribed by the substantive offense, here assault, is
not of the type outlawed without regard to the intent of the actor to
accomplish the result that is made criminal." 420 U.S. at 691-692.
Therefore, the Court held "only that where a substantive offense embodies
only a requirement of mens rea as to each of its elements, the general
federal conspiracy statute requires no more." Id. at 692. Overlooked by the
Panel is that, in so delimiting its ruling, the Supreme Court stated with
regard to the Powell doctrine:
this case does not call upon us to answer this question, and we decline to
do so, just as we have once before. United States v. Freed, 401 U.S.[601],
at 609 n.14 [1971].
420 U.S. at 691.
Feola, therefore, is not definitive on the question of whether in a
prosecution under 18 U.S.C. §1084, involving no particularized mens rea, the
Powell doctrine is applicable. On the other hand, prior to Feola, in Keegan,
supra, the Supreme Court effectively embraced the Powell doctrine, although
it did not specifically articulate the doctrine as the controlling rule. The
Panel, however, wholly overlooked Keegan.
As discussed in Defendant's briefs, a majority of the Supreme Court in
Keegan found that a conspiracy to violate a statute which was "innocent[ly]"
and "honestly" believed to be unconstitutional was not sufficiently
established. The Court stated, in language applicable to Defendant, who
believed he was acting lawfully:
One with innocent motives, who honestly believes a law is unconstitutional
and, therefore, not obligatory, may well counsel that the law shall not be
obeyed; that its command shall be resisted until a court shall have held it
valid, but this is not knowingly counseling, stealthily and by guile, to
evade its command.
325 U.S. at 493-94 (emphasis added).
The Court then added, finding for the defendant:
If defendants had innocent motives they are nonetheless guilty; if they had
guilty motives they, of course, are guilty. It is somewhat difficult to see
how the jury could reach any other than a verdict of guilty.
325 U.S. at 494.
We respectfully submit, as we did in our briefs, that the Keegan majority,
implicitly disagreeing with the dissent (which alone cited the Powell
doctrine, only to reject it), based its decision on what it viewed to be
decidedly innocent conduct. Here, since it is incontrovertible that
Defendant had acted under the good faith belief that his malum prohibitum
conduct was lawful, the Panel's conclusion is utterly incompatible with
Keegan.
B. The Panel Overlooked Holdings of Other Circuits Adopting the Powell
Doctrine.
The Panel wholly overlooked those cases decided in other Circuits which
specifically gave vitality to the Powell doctrine. Thus, unmentioned by the
Panel was that, in addition to the cited Sixth Circuit decision in Landen v.
United States, 299 F. 75, 78 (6th Cir. 1924) ("When, however, the
prosecution is for conspiracy, the text-books and elementary discussions
seem to agree that there must be a 'corrupt intent,' which is interpreted to
be the mens rea, the conscious and intentional purpose to break the law"),
the First, Eighth, Tenth, and D.C. Circuits have, at various times, either
embraced the Powell doctrine or cited its underlying proposition with favor.
See United States v. Previte, 648 F.2d 73, 81-82 (1st Cir. 1981) (stating
that "the Powell doctrine is limited to cases in which an alleged objective
may be completely innocent and unobjectionable" and thereby distinguishing
Feola); United States v. Barker, 514 F.2d 208, 233 (D.C. Cir. 1975) (en
banc) (Bazelon, C.J., concurring)(enunciating the rule, and collecting
cases); Cruz v. United States, 106 F.2d 828, 830 (10th Cir. 1939) ("In order
to establish a criminal conspiracy, a corrupt motive or intent must be
shown. There must be an evil design, a wrongful purpose."); Fall v. United
States, 209 F. 547, 553 (8th Cir. 1913)("where the government relies upon
circumstances to prove a conspiracy or the devising of a scheme and artifice
to defraud, the case comes within that class where an intent different from
the ordinary criminal intent must be shown.").
Moreover, by referring only to the decisions of the First Circuit in United
States v. Murray, supra, and the Tenth Circuit in United States v. Blair,
supra, the Panel overlooked the fact that those cases came from circuits
which, as noted above, specifically had embraced Powell in earlier rulings.
Therefore, Murray and Blair - in which Powell was neither mentioned nor
litigated - do not at all undermine the doctrine, as the Panel suggests.
We respectfully submit that since several Circuits have undisturbed case
law on the books specifically adhering to Powell, the Second Circuit, by
virtue of the Panel's decision in this case rejecting the doctrine's
application to a decidedly "innocent in itself" situation, is now in stark
conflict. C. The Panel Overlooked this Court's Ruling in United States v.
Crimmins, decided after United States v. Mack, Which Effectively Adhered to
the Powell Doctrine.
Finally, the Panel completely failed to address this Court's decision in
United States v. Crimmins, supra. The viability of Crimmins, which
effectively adhered to the Powell doctrine, places the Panel decision at
odds with a prior ruling of this Court.
In Crimmins, decided 17 months after Mack and even noted by the Supreme
Court to be seemingly irreconcilable with Mack because it effectively
embraced the Powell doctrine, see Feola, 420 U.S. at 691, Judge Hand stated:
[w]hile one may, for instance, be guilty of running past a traffic light of
whose existence one is ignorant, one cannot be guilty of conspiring to run
past such a light, for one cannot agree to run past a light unless one
supposes that there is a light to run past.
123 F.2d at 273. This is precisely the proposition advanced by Defendant,
who, the evidence demonstrates, did not "suppose" that receiving wagering
instructions in Antigua via wire from New York was criminally proscribed.
On the other hand, the earlier Mack decision involved a conspiracy to
conceal an unregistered alien. Likewise, the other Second Circuit cases
which the Panel selected for citation all involved inherently unlawful
conduct that would not have been appropriate for application of the Powell
doctrine. See Eisenberg (knowingly transporting counterfeit checks in
interstate commerce); Hamburg-American (submitting falsified customs
documents).
Therefore, given the irrefutable reality that Jay Cohen, like the accused
in Crimmins, harbored no criminal intent, and the fact that such
Powell-based holding has never been overruled, either by the Supreme Court
or the en banc Second Circuit, the Powell doctrine remains viable in this
Circuit and directly applicable to this case. Consequently, going much
further than any later Second Circuit ruling which cited Crimmins, see,
e.g., United States v. Mauro, 501 F.2d 45, 50, n.2 (2d. Cir) (collecting
cases), cert. denied, 419 U.S. 969 (1974), the Panel's decision in this case
effectively overrules the earlier holding - something a Panel may not do.
Lee v. Commissioner of Internal Revenue, supra. For this reason as well, the
en banc court should rehear this appeal.
II. The Panel's Holding that Betting is Not "Legal" in New York Despite the
Fact that it is Not a Crime Directly Conflicts with the First Circuit's
Holding in Sterling Suffolk Racecourse v. Burrillville Racing and the
Demonstrated Intention of the Drafters of § 1084.
It is undisputed that in New York it is not a crime to bet on the outcome
of sporting events. The Panel, however, concluded that because sports
betting is not specifically authorized by law in New York, such betting is
not "legal" within the meaning of 18 U.S.C. § 1084(b), which provides a safe
harbor for the transmission of wagering information from a jurisdiction in
which the underlying wagering is "legal" to another such a jurisdiction. In
effect, the Panel held that one is subject to criminal prosecution under §
1084 for transmitting wagering information even where the affected states
have not deemed the underlying wagering criminal in nature.
This holding conflicts directly with the decision of the First Circuit in
Sterling Suffolk Racecourse Ltd. Partnership v. Burrillville Racing Ass'n,
Inc., 989 F.2d 1266 (1st Cir.), cert. denied, 510 U.S. 1024 (1993), which,
we respectfully submit, the Panel misapprehended. In Sterling, the First
Circuit rejected a RICO challenge predicated on an alleged violation of §
1084, reasoning that § 1084(b) exempted the defendant's conduct because the
type of wagering at issue had not been criminalized in the affected state.
The court stated:
[W]e think it clear that Congress, in adopting section 1084, did not intend
to criminalize acts that neither the affected states nor Congress itself
deemed criminal in nature. [Defendant's] acts fall into this chiaroscuro
category - perhaps not right, but certainly not felonious. It follows that
these acts, not indictable under section 1084, cannot constitute a pattern
of racketeering activity within RICO's definitional parameters.
989 F.2d at 1273.
The Panel distinguished Sterling on the ground that Sterling was a civil
action and not a criminal prosecution under § 1084. This distinction,
however, is without significance. The RICO action necessarily was based on
the theory that the defendant's conduct constituted "a pattern of indictable
activity under federal gambling laws." 989 F.2d at 1272. Accordingly, the
Sterling court, like the court here, was required to determine whether the
defendant's conduct constituted a crime under § 1084. The Panel decision
cannot be reconciled with Sterling.
Nor can the Panel decision be reconciled with the legislative history of §
1084. Limiting its consideration of the legislative history to one footnote,
the Panel ignores the significance of the undisputed fact that § 1084 was
enacted "to assist the various States and the District of Columbia in the
enforcement of their laws pertaining to gambling, bookmaking, and like
offenses and to aid in the suppression of organized gambling activities."
H.R. Rep. No. 87-967, 87th Cong., 1st Sess. (1961), reprinted in 1961
U.S.C.C.A.N. 2631, 2631 (emphasis added). Clearly Congress, in enacting §
1084, was concerned with aiding the states in protecting the public against
criminal activity. See also United States v. Kelley, 254 F.Supp. 9, 15
(S.D.N.Y. 1966) (the "substantive evil" that § 1084 sought to curtail was
"the use of a federally controlled means of communication to violate state
penal statutes") (emphasis added).
In this regard, the Panel, having apparently overlooked extensive authority
establishing beyond dispute that New York's gambling laws chiefly target the
operation of a gambling business as opposed to mere betting, reached a
conclusion at odds with the very state whose laws § 1084 is intended to help
enforce. See Appellant's Br. at 42-43; Appellant's Reply Br. at 5-11. The
New York Court of Appeals has recognized that the anti-gambling provision of
the New York Constitution, upon which the Panel primarily relied to conclude
that it is not "legal" to place a bet in New York, "chiefly condemns . . .
betting and gambling organized and carried on as a systematic business."
Watts v. Malatesta, 262 N.Y. 80, 82 (1933). In addition, the General
Obligations Law, also relied upon by the Panel, actually permits recovery of
wagered property by a mere bettor, but not by one engaged in the business of
gambling. N.Y. Gen. Obl. Law § 5-419. In addition, the Panel failed to
apprehend the significance of legislation now pending in New York State that
would require any foreign corporation providing gambling or wagering
services in New York via the Internet to register with the state. See
Appellant's Reply Br. at 13-14.
In short, the Panel decision creates not only a circuit split, but a rift
with the statute's legislative history and New York law.
III. The Panel's Groundbreaking Holding that, as a Matter of Law, Wagering
Instructions Constitute "Bets" Per Se, Criminalizes the Longstanding,
State-Sanctioned Practices of Off-Tracking Betting Enterprises in Numerous
States, Including New York, in Direct Contravention of the First Circuit's
Holding in Sterling and the Legislative History of § 1084.
In affirming the district court's jury instructions, the Panel held, as a
matter of law, that when one person communicates to a second person located
in another state or foreign country a desire to place a bet, and the second
individual communicates via wire that the desired bet has been placed, a
"bet" has been transmitted for purposes of § 1084. This holding, being the
first of its kind, exposes every state-sanctioned off-tracking betting
entity that accepts interstate wagers to criminal prosecution, since their
conduct is materially indistinguishable from that of Defendant.
The Panel decision does precisely what the First Circuit refused to do in
Sterling - criminalize conduct that the affected states have not deemed
criminal. In fact, the Panel goes even one step further: the Panel has
criminalized practices that many states not only have never subjected to
prosecution, but, to the contrary, have actively sponsored and protected.
This cannot be what Congress intended when it enacted § 1084 to assist the
states in enforcing their laws against gambling offenses.
In fact, the testimony of one of the Government's own undercover agents
supports the view that defendant's company and off-track betting enterprises
that operate in precisely the same way transmitted nothing other than
information assisting in the placement of bets or wagers, not bets or wagers
per se. In this regard, although quoting other testimony which it thought to
be supportive of its conclusion, the Panel ignored the following passage
from the redirect examination of Agent Marziliano, which defeats it
categorically:
Q. Is it fair to say, Agent Marziliano, that the bet was placed when you
commanded that instruction to World Sports Exchange from New York?
A. I gave authorization for the individual to place a bet for me.
Q. You placed that bet from New York; is that correct?
A. Yes.
Marziliano: Tr. 614. On recross, Agent Marziliano testified:
Q. You gave authorization for the individual in Antigua to place the bet,
correct?
A. That is true, I gave authorization for the person on the other end of
the phone in Antigua to place my bet.
Id.
The full court should rehear this appeal in order to ensure that the
prerogative of the states to regulate gambling remains unfettered, as
Congress intended when it enacted § 1084.
IV. The Panel's Holding that Defendant Need Not Know He Was Transmitting a
"Bet" Conflicts with Settled Law of the United States Supreme Court that the
Scienter Requirement Applies to Every Element of the Offense.
In affirming the district court's jury instruction concerning mens rea,
the Panel stated that "Cohen's own interpretation regarding what constituted
a bet was irrelevant to the issue of his mens rea under § 1084." Opn. at
17. In effect, the Panel held that the Government did not need to prove that
Defendant knew that what was being transmitted in interstate or foreign
commerce was in fact a bet, and not merely wagering instructions. This
result is inconsistent with the longstanding principle that "the presumption
in favor of a scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct." United States v.
X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
CONCLUSION
THE PETITION FOR A REHEARING SHOULD BE GRANTED, AND THE COURT SHOULD REHEAR
THE MATTER EN BANC
Dated: New York, New York
August 14, 2001
Respectfully submitted,
BRAFMAN & ROSS, P.C.
Attorneys for Defendant-Appellant,
Jay Cohen
767 Third Avenue, 26th Floor
New York, New York 10017
(212) 750-7800
By:
MARK M. BAKER
BENJAMIN BRAFMAN
MARK M. BAKER
MELINDA SARAFA
Of Counsel
Preliminary Statement 1
Reasons for Granting the Petition For Rehearing 4
I. The Panel's Decision Overlooks Those Undisturbed Holdings in Which Other
United States Courts of Appeals and, Implicitly, this Court and the United
States Supreme Court, Embraced the Powell Doctrine. 4
A. The Panel Overlooked Specific Aspects of United States v. Feola, As Well
as the Earlier Holding in United States v. Keegan Which Seemingly Embraces
the Powell Doctrine 5
B. The Panel Overlooked Holdings of Other Circuits Adopting the Powell
Doctrine. 7
C. The Panel Overlooked this Court's Ruling in United States v. Crimmins,
decided after United States v. Mack, Which Effectively Adhered to the Powell
Doctrine 9
II. The Panel's Holding that Betting is Not "Legal" in New York Despite the
Fact that it is Not a Crime Directly Conflicts with the First Circuit's
Holding in Sterling Suffolk Racecourse v. Burrillville Racing and the
Demonstrated Intention of the Drafters of § 1084. 10
III. The Panel's Groundbreaking Holding that, as a Matter of Law, Wagering
Instructions Constitute "Bets" Per Se, Criminalizes the Longstanding,
State-Sanctioned Practices of Off-Tracking Betting Enterprises in Numerous
States, Including New York, in Direct Contravention of the First Circuit's
Holding in Sterling and the Legislative History of § 1084. 13
IV. The Panel's Holding that Defendant Need Not Know He Was Transmitting a
"Bet" Conflicts with Settled Law of the United States Supreme Court that the
Scienter Requirement Applies to Every Element of the Offense. 15
Conclusion 15
TABLE OF AUTHORITIES
FEDERAL CASES
Cruz v. United States, 106 F.2d 828
(10th Cir. 1939) 8
Fall v. United States, 209 F. 547
(8th Cir. 1913) 8
Hamburg-American Steam Packet Co. v. United States,
250 F. 747 (2d Cir. 1918) 4
Landen v. United States, 299 F. 75
(6th Cir. 1924) 4, 7
Lee v. Commissioner of Internal Revenue,
155 F.3d 584 (2d Cir. 1998) 5, 10
Sterling Suffolk Racecourse Ltd. Partnership v.
Burrillville Racing Ass'n, Inc., 989 F.2d 1266
(1st Cir.), cert. denied, 510 U.S. 1024 (1993) i, 10, 11, 13
United States v. Barker, 514 F.2d 208
(D.C. Cir. 1975) (en banc) 7
United States v. Blair, 54 F.3d 639
(10th Cir. 1995) 4, 8
United States v. Crimmins, 123 F.2d 271
(2d Cir. 1941) i, 2, 5, 9, 10
United States v. Eisenberg, 596 F.2d 522
(2d Cir. 1979) 4, 9
United States v. Feola, 420 U.S. 671 (1975) i, 4-6, 9
United States v. Freed, 401 U.S. 601 (1971) 6
United States v. Keegan, 325 U.S. 478 (1945) i, 2, 5-7
United States v. Kelley, 254 F.Supp. 9
(S.D.N.Y. 1966) 12
United States v. Mack, 112 F.2d 290
(2d Cir. 1940) i, 4, 9
United States v. Mauro, 501 F.2d 45 (2d. Cir),
cert. denied, 419 U.S. 969 (1974) 10
United States v. Murray, 928 F.2d 1242
(1st Cir. 1991) 4, 8
United States v. Previte, 648 F.2d 73
(1st Cir. 1981) 7
United States v. Thomas, 887 F.2d 1341
(9th Cir. 1989) 4
United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) 15
STATE CASES
People v. Powell, 63 N.Y. 88,
2 Cow. Cr. Rep. 283 (1875) passim
Watts v. Malatesta, 262 N.Y. 80 (1933) 12
FEDERAL STATUTES AND RULES
18 U.S.C. § 371 2
18 U.S.C. §1084 passim
18 U.S.C. § 1084(a) 2
18 U.S.C. § 1084(b) 10, 11
Fed. R. App. P. 35(a) 2
Fed. R. App. P. 35(b)(1)(A) 2
Fed. R. App. P. 35(b)(1)(B) 2, 3
Fed. R. App. P. 40 2
Second Circuit Local Rule 35 2
Second Circuit Local Rule 40 2
STATE STATUTES
N.Y. Gen. Obl. Law § 5-419 12
OTHER AUTHORITIES
H.R. Rep. No. 87-967, 87th Cong., 1st Sess. (1961)
reprinted in 1961 U.S.C.C.A.N. 2631 12 UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 00-1574
UNITED STATES OF AMERICA,
Appellee,
-against-
JAY COHEN,
Defendant-Appellant.
On Appeal From a Judgment of the United States
District Court for the Southern District of New York
PETITION FOR REHEARING FOR JAY COHEN
WITH A SUGGESTION FOR A REHEARING EN BANC
Preliminary Statement
United States v. Jay Cohen is no ordinary case. Today an entire offshore
gaming industry, as well as numerous state-sanctioned off-track betting
enterprises, flourish with hundreds of companies and Internet websites
operating unencumbered by United States Government interference. Yet
Defendant-Appellant Jay Cohen alone faces time in federal prison for such
conduct. Mr. Cohen's former company, World Sports Exchange, was wholly
located, licensed and regulated in the sovereign nation of Antigua. It was
the most reputable business in the offshore gaming industry, yet was singled
out by the United States Attorney's Office for the Southern District of New
York at the behest of an influential private law firm representing the major
sports leagues. The Government concedes that there was never any allegation
of fraud or wrongdoing in the operation of World Sports Exchange. For the
reasons set forth herein and in Appellant's briefs, this conviction is wrong
and should be reheard and reversed.
Pursuant to Federal Rules of Appellate Procedure 40 and Local Rule 40, Jay
Cohen ("Defendant") respectfully petitions for a rehearing of the appeal
from a final judgment of the United States District Court for the Southern
District of New York (Hon. Thomas P. Griesa), rendered on August 10, 2000,
convicting him upon Indictment No. S2 98 CR 434 (TPG), pursuant to a jury
verdict, of violations of 18 U.S.C. § 371 (Count One) and 18 U.S.C. §
1084(a) (Counts Two through Eight). In a judgment entered on July 31, 2001,
a Panel of this Court affirmed the judgment of the District Court
(Addendum).
Pursuant to Federal Rules of Appellate Procedure 35(a) and (b)(1)(A) &
(B), as well as Local Rule 35, Defendant also suggests that the court rehear
this case en banc. Defendant respectfully submits that the Panel decision
affirming the judgment herein conflicts with a prior decision of the United
States Supreme Court, United States v. Keegan, 325 U.S. 478 (1945), and a
prior decision of this Court, United States v. Crimmins,123 F.2d 271 (2d
Cir. 1941). "[C]onsideration by the full court is therefore necessary to
secure and maintain uniformity in the court's decisions."
Additionally, the instant petition raises one or more questions of
exceptional importance. First, the Panel's decision rejecting the corrupt
motive doctrine established in People v. Powell,63 N.Y. 88, 2 Cow. Cr. Rep.
283 (1875), "conflicts with authoritative decisions of other United States
Courts of Appeals that have addressed the issue." Fed. R. App. P.
35(b)(1)(B).
Second, the Panel's conclusion that, for purposes of § 1084, betting is not
"legal" in New York despite the fact that it is not a crime conflicts with a
decision of the First Circuit, with the intention of the statute's drafters,
and with established legal principles in the State of New York.
Third, the Panel's unprecedented holding that wagering instructions
constitute "bets" per se effectively criminalizes the operation of
state-sanctioned off-track betting entities in several states. Such
criminalization contravenes not only the laws and policies of such states,
but also a decision of the First Circuit and the legislative purpose of §
1084.
Finally, the Panel's holding that defendant need not know that the
information transmitted in foreign commerce was in fact a bet or wager
conflicts with fundamental principles of statutory construction as
articulated by the United States Supreme Court. Reasons for Granting the
Petition For Rehearing
I. The Panel's Decision Overlooks Those Undisturbed Holdings in Which Other
United States Courts of Appeals and, Implicitly, this Court and the United
States Supreme Court, Embraced the Powell Doctrine.
In holding that "whatever remains of Powell does not apply to this case[]"
Opn. at 6, the Panel explained:
The Powell doctrine was echoed in federal cases from the first half of the
last century, but many circuits have since, in effect, moved away from the
doctrine. Compare e.g., Landen v. United States, 299 F. 75 (6th Cir. 1924)
(applying Powell to drug wholesaler's conspiracy to sell intoxicating liquor
for nonbeverage purposes without the necessary permit), with United States
v. Blair, 54 F.3d 639 (10th Cir. 1995) (involving, as does this case,
offshore bookmaking in violation of §1084); United States v. Murray, 928
F.2d 1242 (1st Cir. 1991) (involving an illegal gambling business in
violation of 18 U.S.C. §1955); United States v. Thomas, 887 F.2d 1341 (9th
Cir. 1989) (involving trafficking in wildlife that the defendant should have
known was taken in violation of state law).
Opn. at 7.
Upon then noting that "[a]lthough this Court has long expressed its
discontent with the Powell doctrine, we have done so only in dicta in cases
involving conspiracies to commit acts that were not 'innocent in
themselves[]'", Opn. at 7, the Panel mentioned only United States v. Mack
112 F.2d 290, 292 (2d Cir. 1940); United States v. Eisenberg, 596 F.2d 522,
526 (2d Cir. 1979); and Hamburg-American Steam Packet Co. v. United States,
250 F. 747, 759 (2d Cir. 1918). Additionally, the Panel referred to United
States v. Feola, 420 U.S. 671 (1975), for the proposition that "the Supreme
Court, in another context, rejected the notion that a federal conspiracy
conviction required proof of scienter." Opn. at 9. Based on these citations
alone, as well as an additional reference to the American Law Institute,
Opn. at 8, the Panel concluded that "the Powell doctrine does not apply to a
conspiracy to violate 18 U.S.C. § 1084." Opn. at 9.
Most respectfully, given the body of case law from several other Circuit
Courts that has never been overruled, including two Circuits even relied
upon by the Panel, and considering the precise, albeit wholly overlooked,
positions taken by the Supreme Court in Feola and United States v. Keegan,
325 U.S. 478 (1945), the Panel's analysis is strikingly insufficient and
places this Court squarely in conflict with other United States Courts of
Appeals and with at least one prior unmentioned decision of this Circuit,
United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941). In view of the maxim
that "one panel of this circuit will not overrule another; Panels are to be
overruled only by the court en banc", Lee v. Commissioner of Internal
Revenue, 155 F.3d 584, 587 (2d Cir. 1998), the full Court should convene and
rehear Defendant's appeal.A. The Panel Overlooked Specific Aspects of United
States v. Feola, As Well as the Earlier Holding in United States v. Keegan
Which Seemingly Embraces the Powell Doctrine.
Wholly unmentioned by the Panel in discussing United States v. Feola is the
Supreme Court's express refusal therein to pass on the Powell doctrine and
reservation of the matter for another day. Specifically, the Feola Court
noted: "the conduct proscribed by the substantive offense, here assault, is
not of the type outlawed without regard to the intent of the actor to
accomplish the result that is made criminal." 420 U.S. at 691-692.
Therefore, the Court held "only that where a substantive offense embodies
only a requirement of mens rea as to each of its elements, the general
federal conspiracy statute requires no more." Id. at 692. Overlooked by the
Panel is that, in so delimiting its ruling, the Supreme Court stated with
regard to the Powell doctrine:
this case does not call upon us to answer this question, and we decline to
do so, just as we have once before. United States v. Freed, 401 U.S.[601],
at 609 n.14 [1971].
420 U.S. at 691.
Feola, therefore, is not definitive on the question of whether in a
prosecution under 18 U.S.C. §1084, involving no particularized mens rea, the
Powell doctrine is applicable. On the other hand, prior to Feola, in Keegan,
supra, the Supreme Court effectively embraced the Powell doctrine, although
it did not specifically articulate the doctrine as the controlling rule. The
Panel, however, wholly overlooked Keegan.
As discussed in Defendant's briefs, a majority of the Supreme Court in
Keegan found that a conspiracy to violate a statute which was "innocent[ly]"
and "honestly" believed to be unconstitutional was not sufficiently
established. The Court stated, in language applicable to Defendant, who
believed he was acting lawfully:
One with innocent motives, who honestly believes a law is unconstitutional
and, therefore, not obligatory, may well counsel that the law shall not be
obeyed; that its command shall be resisted until a court shall have held it
valid, but this is not knowingly counseling, stealthily and by guile, to
evade its command.
325 U.S. at 493-94 (emphasis added).
The Court then added, finding for the defendant:
If defendants had innocent motives they are nonetheless guilty; if they had
guilty motives they, of course, are guilty. It is somewhat difficult to see
how the jury could reach any other than a verdict of guilty.
325 U.S. at 494.
We respectfully submit, as we did in our briefs, that the Keegan majority,
implicitly disagreeing with the dissent (which alone cited the Powell
doctrine, only to reject it), based its decision on what it viewed to be
decidedly innocent conduct. Here, since it is incontrovertible that
Defendant had acted under the good faith belief that his malum prohibitum
conduct was lawful, the Panel's conclusion is utterly incompatible with
Keegan.
B. The Panel Overlooked Holdings of Other Circuits Adopting the Powell
Doctrine.
The Panel wholly overlooked those cases decided in other Circuits which
specifically gave vitality to the Powell doctrine. Thus, unmentioned by the
Panel was that, in addition to the cited Sixth Circuit decision in Landen v.
United States, 299 F. 75, 78 (6th Cir. 1924) ("When, however, the
prosecution is for conspiracy, the text-books and elementary discussions
seem to agree that there must be a 'corrupt intent,' which is interpreted to
be the mens rea, the conscious and intentional purpose to break the law"),
the First, Eighth, Tenth, and D.C. Circuits have, at various times, either
embraced the Powell doctrine or cited its underlying proposition with favor.
See United States v. Previte, 648 F.2d 73, 81-82 (1st Cir. 1981) (stating
that "the Powell doctrine is limited to cases in which an alleged objective
may be completely innocent and unobjectionable" and thereby distinguishing
Feola); United States v. Barker, 514 F.2d 208, 233 (D.C. Cir. 1975) (en
banc) (Bazelon, C.J., concurring)(enunciating the rule, and collecting
cases); Cruz v. United States, 106 F.2d 828, 830 (10th Cir. 1939) ("In order
to establish a criminal conspiracy, a corrupt motive or intent must be
shown. There must be an evil design, a wrongful purpose."); Fall v. United
States, 209 F. 547, 553 (8th Cir. 1913)("where the government relies upon
circumstances to prove a conspiracy or the devising of a scheme and artifice
to defraud, the case comes within that class where an intent different from
the ordinary criminal intent must be shown.").
Moreover, by referring only to the decisions of the First Circuit in United
States v. Murray, supra, and the Tenth Circuit in United States v. Blair,
supra, the Panel overlooked the fact that those cases came from circuits
which, as noted above, specifically had embraced Powell in earlier rulings.
Therefore, Murray and Blair - in which Powell was neither mentioned nor
litigated - do not at all undermine the doctrine, as the Panel suggests.
We respectfully submit that since several Circuits have undisturbed case
law on the books specifically adhering to Powell, the Second Circuit, by
virtue of the Panel's decision in this case rejecting the doctrine's
application to a decidedly "innocent in itself" situation, is now in stark
conflict. C. The Panel Overlooked this Court's Ruling in United States v.
Crimmins, decided after United States v. Mack, Which Effectively Adhered to
the Powell Doctrine.
Finally, the Panel completely failed to address this Court's decision in
United States v. Crimmins, supra. The viability of Crimmins, which
effectively adhered to the Powell doctrine, places the Panel decision at
odds with a prior ruling of this Court.
In Crimmins, decided 17 months after Mack and even noted by the Supreme
Court to be seemingly irreconcilable with Mack because it effectively
embraced the Powell doctrine, see Feola, 420 U.S. at 691, Judge Hand stated:
[w]hile one may, for instance, be guilty of running past a traffic light of
whose existence one is ignorant, one cannot be guilty of conspiring to run
past such a light, for one cannot agree to run past a light unless one
supposes that there is a light to run past.
123 F.2d at 273. This is precisely the proposition advanced by Defendant,
who, the evidence demonstrates, did not "suppose" that receiving wagering
instructions in Antigua via wire from New York was criminally proscribed.
On the other hand, the earlier Mack decision involved a conspiracy to
conceal an unregistered alien. Likewise, the other Second Circuit cases
which the Panel selected for citation all involved inherently unlawful
conduct that would not have been appropriate for application of the Powell
doctrine. See Eisenberg (knowingly transporting counterfeit checks in
interstate commerce); Hamburg-American (submitting falsified customs
documents).
Therefore, given the irrefutable reality that Jay Cohen, like the accused
in Crimmins, harbored no criminal intent, and the fact that such
Powell-based holding has never been overruled, either by the Supreme Court
or the en banc Second Circuit, the Powell doctrine remains viable in this
Circuit and directly applicable to this case. Consequently, going much
further than any later Second Circuit ruling which cited Crimmins, see,
e.g., United States v. Mauro, 501 F.2d 45, 50, n.2 (2d. Cir) (collecting
cases), cert. denied, 419 U.S. 969 (1974), the Panel's decision in this case
effectively overrules the earlier holding - something a Panel may not do.
Lee v. Commissioner of Internal Revenue, supra. For this reason as well, the
en banc court should rehear this appeal.
II. The Panel's Holding that Betting is Not "Legal" in New York Despite the
Fact that it is Not a Crime Directly Conflicts with the First Circuit's
Holding in Sterling Suffolk Racecourse v. Burrillville Racing and the
Demonstrated Intention of the Drafters of § 1084.
It is undisputed that in New York it is not a crime to bet on the outcome
of sporting events. The Panel, however, concluded that because sports
betting is not specifically authorized by law in New York, such betting is
not "legal" within the meaning of 18 U.S.C. § 1084(b), which provides a safe
harbor for the transmission of wagering information from a jurisdiction in
which the underlying wagering is "legal" to another such a jurisdiction. In
effect, the Panel held that one is subject to criminal prosecution under §
1084 for transmitting wagering information even where the affected states
have not deemed the underlying wagering criminal in nature.
This holding conflicts directly with the decision of the First Circuit in
Sterling Suffolk Racecourse Ltd. Partnership v. Burrillville Racing Ass'n,
Inc., 989 F.2d 1266 (1st Cir.), cert. denied, 510 U.S. 1024 (1993), which,
we respectfully submit, the Panel misapprehended. In Sterling, the First
Circuit rejected a RICO challenge predicated on an alleged violation of §
1084, reasoning that § 1084(b) exempted the defendant's conduct because the
type of wagering at issue had not been criminalized in the affected state.
The court stated:
[W]e think it clear that Congress, in adopting section 1084, did not intend
to criminalize acts that neither the affected states nor Congress itself
deemed criminal in nature. [Defendant's] acts fall into this chiaroscuro
category - perhaps not right, but certainly not felonious. It follows that
these acts, not indictable under section 1084, cannot constitute a pattern
of racketeering activity within RICO's definitional parameters.
989 F.2d at 1273.
The Panel distinguished Sterling on the ground that Sterling was a civil
action and not a criminal prosecution under § 1084. This distinction,
however, is without significance. The RICO action necessarily was based on
the theory that the defendant's conduct constituted "a pattern of indictable
activity under federal gambling laws." 989 F.2d at 1272. Accordingly, the
Sterling court, like the court here, was required to determine whether the
defendant's conduct constituted a crime under § 1084. The Panel decision
cannot be reconciled with Sterling.
Nor can the Panel decision be reconciled with the legislative history of §
1084. Limiting its consideration of the legislative history to one footnote,
the Panel ignores the significance of the undisputed fact that § 1084 was
enacted "to assist the various States and the District of Columbia in the
enforcement of their laws pertaining to gambling, bookmaking, and like
offenses and to aid in the suppression of organized gambling activities."
H.R. Rep. No. 87-967, 87th Cong., 1st Sess. (1961), reprinted in 1961
U.S.C.C.A.N. 2631, 2631 (emphasis added). Clearly Congress, in enacting §
1084, was concerned with aiding the states in protecting the public against
criminal activity. See also United States v. Kelley, 254 F.Supp. 9, 15
(S.D.N.Y. 1966) (the "substantive evil" that § 1084 sought to curtail was
"the use of a federally controlled means of communication to violate state
penal statutes") (emphasis added).
In this regard, the Panel, having apparently overlooked extensive authority
establishing beyond dispute that New York's gambling laws chiefly target the
operation of a gambling business as opposed to mere betting, reached a
conclusion at odds with the very state whose laws § 1084 is intended to help
enforce. See Appellant's Br. at 42-43; Appellant's Reply Br. at 5-11. The
New York Court of Appeals has recognized that the anti-gambling provision of
the New York Constitution, upon which the Panel primarily relied to conclude
that it is not "legal" to place a bet in New York, "chiefly condemns . . .
betting and gambling organized and carried on as a systematic business."
Watts v. Malatesta, 262 N.Y. 80, 82 (1933). In addition, the General
Obligations Law, also relied upon by the Panel, actually permits recovery of
wagered property by a mere bettor, but not by one engaged in the business of
gambling. N.Y. Gen. Obl. Law § 5-419. In addition, the Panel failed to
apprehend the significance of legislation now pending in New York State that
would require any foreign corporation providing gambling or wagering
services in New York via the Internet to register with the state. See
Appellant's Reply Br. at 13-14.
In short, the Panel decision creates not only a circuit split, but a rift
with the statute's legislative history and New York law.
III. The Panel's Groundbreaking Holding that, as a Matter of Law, Wagering
Instructions Constitute "Bets" Per Se, Criminalizes the Longstanding,
State-Sanctioned Practices of Off-Tracking Betting Enterprises in Numerous
States, Including New York, in Direct Contravention of the First Circuit's
Holding in Sterling and the Legislative History of § 1084.
In affirming the district court's jury instructions, the Panel held, as a
matter of law, that when one person communicates to a second person located
in another state or foreign country a desire to place a bet, and the second
individual communicates via wire that the desired bet has been placed, a
"bet" has been transmitted for purposes of § 1084. This holding, being the
first of its kind, exposes every state-sanctioned off-tracking betting
entity that accepts interstate wagers to criminal prosecution, since their
conduct is materially indistinguishable from that of Defendant.
The Panel decision does precisely what the First Circuit refused to do in
Sterling - criminalize conduct that the affected states have not deemed
criminal. In fact, the Panel goes even one step further: the Panel has
criminalized practices that many states not only have never subjected to
prosecution, but, to the contrary, have actively sponsored and protected.
This cannot be what Congress intended when it enacted § 1084 to assist the
states in enforcing their laws against gambling offenses.
In fact, the testimony of one of the Government's own undercover agents
supports the view that defendant's company and off-track betting enterprises
that operate in precisely the same way transmitted nothing other than
information assisting in the placement of bets or wagers, not bets or wagers
per se. In this regard, although quoting other testimony which it thought to
be supportive of its conclusion, the Panel ignored the following passage
from the redirect examination of Agent Marziliano, which defeats it
categorically:
Q. Is it fair to say, Agent Marziliano, that the bet was placed when you
commanded that instruction to World Sports Exchange from New York?
A. I gave authorization for the individual to place a bet for me.
Q. You placed that bet from New York; is that correct?
A. Yes.
Marziliano: Tr. 614. On recross, Agent Marziliano testified:
Q. You gave authorization for the individual in Antigua to place the bet,
correct?
A. That is true, I gave authorization for the person on the other end of
the phone in Antigua to place my bet.
Id.
The full court should rehear this appeal in order to ensure that the
prerogative of the states to regulate gambling remains unfettered, as
Congress intended when it enacted § 1084.
IV. The Panel's Holding that Defendant Need Not Know He Was Transmitting a
"Bet" Conflicts with Settled Law of the United States Supreme Court that the
Scienter Requirement Applies to Every Element of the Offense.
In affirming the district court's jury instruction concerning mens rea,
the Panel stated that "Cohen's own interpretation regarding what constituted
a bet was irrelevant to the issue of his mens rea under § 1084." Opn. at
17. In effect, the Panel held that the Government did not need to prove that
Defendant knew that what was being transmitted in interstate or foreign
commerce was in fact a bet, and not merely wagering instructions. This
result is inconsistent with the longstanding principle that "the presumption
in favor of a scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct." United States v.
X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
CONCLUSION
THE PETITION FOR A REHEARING SHOULD BE GRANTED, AND THE COURT SHOULD REHEAR
THE MATTER EN BANC
Dated: New York, New York
August 14, 2001
Respectfully submitted,
BRAFMAN & ROSS, P.C.
Attorneys for Defendant-Appellant,
Jay Cohen
767 Third Avenue, 26th Floor
New York, New York 10017
(212) 750-7800
By:
MARK M. BAKER
BENJAMIN BRAFMAN
MARK M. BAKER
MELINDA SARAFA
Of Counsel
Comment