The Jay Cohen Trial - Day Three

More witnesses for the government included Western Union Investigation Supervisor Janice Effinger, Thomas Schutz of MCI WorldCom, Janet Conway of Access International, T-Cast President and CEO Mark Jordan and FBI Special Agent Carl Benoit, as well as the cross examination of Special Agent Linda Walsh.

The big news, however, came after the jury adjourned when Jay Cohen's attorney, Benjamin Brafman, asked for the record to show that the defense has requested a mistrial on the grounds of irreparable prejudice--a tactic typically used as a preliminary step toward appealing the verdict in case the defendant is found guilty.

Brafman took issue with Judge Griesa's explanation of the Wire Act to the jury yesterday. In order to be considered guilty of violating the Wire Act, the accused person must knowingly use a wire communication facility (phone lines) in accepting the bet. Judge Griesa ruled that if a bet was placed via a call from New York to Antigua, and the person accepting the bet in Antigua was aware that the caller was in New York, then the person accepting the bet has acknowledged that a wire communication facility was used to place the wager.

Brafman argued, however, that Cohen believed such wagers were placed in Antigua and not over the wires. Brafman said that Cohen sincerely believed the wire communication facility was simply used to communicate a request, and that the bets weren't actually made until they were entered into the computer in Antigua, thus, Cohen did not knowingly use a wire communication facility to facilitate wagering.

"In his (Cohen's) state of mind, the bet took place in Antigua," Brafman told the judge. Further, Brafman pointed out that Cohen and his colleagues went out of their way to assure that their business was legal and that they consulted lawyers in doing so.

Judge Griesa called Brafman's defense an "evasive tactic." He went on to say that, as far as the court is concerned, the statute is violated if Cohen knew the bets were coming from New York in the way that it was testified.

Brafman retorted by explaining that, in the case of the phone calls, the bets weren't actually made until the parties hung up.

During the recess, Braffman told IGN that the judge's legal instruction to the jury would be "an incorrect statement of the law." He further emphasized that there was never intent to violate the law. "That's why they went to Antigua," he said.

The argument was again taken up after the jury recessed for the day at 4:30 p.m., and lasted for nearly 45 minutes. The meaning of the phrase "transmission of interstate or foreign commerce" was debated at length. Brafman took several shots at getting his point across to the judge, but was cut off virtually every time.

Judge Griesa told Brafman that the defense's position is "virtually impossible."

"My interpretation and your interpretation is not what we're talking about," Brafman answered. He argued that the issue was instead Cohen's interpretation.

Finally, Judge Griesa agreed to allow Brafman to put his argument in writing and submit it to the court.

Now we're having fun, eh?

In terms of testimony and evidence, it was more the same today. The government played a tape of Walsh placing bets over the phone with an unidentified operator as well as a tape of Walsh posing as a college student and interviewing Cohen for a paper she was supposedly writing. Effinger verified Western Union records. Schutz , Conway and Jordan verified the records of phone calls to 800 numbers allegedly used by World Sports Exchange. In the case of Schutz, the company billed for calls using the 800 number was Post-Time Sports Ltd. Brafman objected, pointing out that this wasn't Cohen's company. He was overruled because the Schutz verified that the buyer of the number could have resold it.

Benoit testified about additional tape-recorded of phone calls, this time with Benoit as the caller. The tapes were no more revealing than earlier tapes, although it was clear that the WSE phone operator, Spencer (no last name given), was on to him. Each party in the conversations alluded to suspicions that the other party was an FBI agent. In the final call, made after the first complaints were called, the phone operator flat out refused to take the agent's wagers, which resulted in tempered dialog.

Another interesting side note (and a pure coincidence, I'm sure): Access International one of the 800 service providers, is located in Plymouth Meeting, Pa., the home of software provider Globespan Technology Partners, Inc. (formally Interactive Gaming & Communications Corp.).

Small world.

Regarding evidence introduced today, the defense objected to all exhibits collected after Cohen left Antigua to face his charges; each objection was overruled. The defense also objected to the use of audio tapes in which the identity of the alleged WSE phone operator was not given. If you're keeping score, that would be all but one of the tapes played so far, the one being Walsh's conversation with Jay Cohen--a conversation in which no bets were taken. All of these objections were overruled as well.

Overall, the government and the defense are clearly not at odds as to what transpired, where and when. Quite simply, this case will boil down to the interpretation of the Wire Act and could hinge on how Judge Griesa instructs the jury. Thus, the defense's written argument, likely to be submitted tomorrow, could be highly significant.