Supreme Court Says No to Jay Cohen

Jay Cohen's long journey through the U.S. federal courts ended Monday when the Supreme Court said it would not review his case.

Cohen will now have to serve the sentence he received for his March 28, 2000, conviction in New York federal court for one count of conspiracy and seven counts of violating the Interstate Wire Act in connection with the operation of an Internet gambling site called World Sports Exchange.

On July 31, 2001, the U.S. Court of Appeals for the Second Circuit upheld the New York court's decision. Cohen received a sentence of 21 months in prison, two years of supervised release, a special assessment of $800 and a fine of $5,000.

Cohen, who on Feb. 22 filed a writ of certiorari to have the Supreme Court review his case, has been free on bail pending the outcome of his petition, said one of his lawyers, Melinda Sarafa of the law firm Brafman and Ross in New York.

She said Cohen will probably be eligible for two months of "good time" per year that he spends in prison, meaning that he will likely end up serving 18 months. There is no parole in the federal prison system. Cohen has not been assigned to a specific prison yet. Sarafa said that will happen in the next several weeks. When it does happen, Cohen will turn himself in to the appropriate authorities, she said.

"He will be permitted to voluntarily surrender to whatever institution the federal bureau of prisons designates him to," Sarafa said. "He will get a surrender date and will show up to the institution on that date."

Cohen and his legal team found out about the denial of a Supreme Court hearing just after 10 a.m., when another lawyer of Cohen's, Ian Gershengorn, called the Supreme Court clerk's office to see if certiorari had been granted.

Gershengorn, of the Washington, D.C. law firm Jenner and Block, said the Court does not release any comments about why it rejects a particular case and does not reveal which justices voted for or against it.

Gershengorn, who spoke with Cohen on Monday, said Cohen is going through a "difficult time." Sarafa characterized the feeling among all those who worked on the case as extreme disappointment.

"We're all extremely disappointed that the Court did not choose to review this case," she said. "It is, in our view, an extremely important case, not only for Jay personally, but for many others who are in the same or closely related industries that are subject to the same statutes."

Reaction to the Supreme Court's rejection among those who follow the Internet gambling industry was mixed. Frank Catania, a former gambling regulator in New Jersey who is now president of the Catania Consulting Group, said he was surprised that the court turned down the case.

"I thought there might have been some chance that the Supreme Court would have chosen the topic because of Antigua being involved," said Catania, who helped Antigua draft a friend-of-the-court brief urging the Court to take up Cohen's case. "It's an international issue that nobody has really addressed."

Nick Casiello, a lawyer who also assisted Antigua with its amicus brief, said he was surprised the case was rejected because the Court had taken the unusual step of asking the U.S. government to file a brief in response to Cohen's petition.

"I interpreted that to mean that the court was seriously considering the matter," he said.

As for what effect this could have on the Internet gambling industry, Catania said Citibank's recent announcement that it would no longer process online gaming transactions is a more haunting problem than the Jay Cohen case. Casiello, as well as Cohen's lawyers, however, think the industry could feel repercussions from the Supreme Court rejection.

"I suspect there will be a chill in the Internet gambling community," Gershengorn said. "It suggests that the government has a lot of discretion to bring prosecutions and that at the moment, at least, the courts are unwilling to put a break on the government's prosecutorial discretion."