Kaplan Pleadings in BetOnSports

[JPFisher55]

For those interested Gary Kaplan is not rolling over and playing dead like Neteller and its founders. At MajorWager.com, you can find links to all his motions including many to dismiss the charges against him. One of them is related to GATS and the WTO. I am not going to link them because there are eight documents. The first one is about interpretation of the Wire Act and the seventh one involves GATS and the WTO. The rest are about tax issues and other motions.

[BluffTHIS!]

Jay Cohen didn't roll over either and yet they rolled over him and left him for dead.

Regarding "the seventh one involves GATS and the WTO", the question I would ask of you attorneys is what legal standing an international treaty has in domestic law when there is a conflict? For instance if the U.S. made a treaty with Canada that companies based in Canada could ship candy bars to the U.S., but at the same time Congress criminalized such activity, would a person indicted for such in a U.S. court be able to assert the treaty invalidated the domestic law?

[adanthar]

If the treaty was passed after the ban, probably (although it would not necessarily always work.)

[JPFisher55]

The two most interesting are the first and seventh document. The first one involves interpretation of The Wire Act and the seventh one involves the WTO application. If you don't understand how the WTO ruling is a defense read the seventh pdf document. It is good.
The first document states the the Wire Act only covers sports betting, not casino gambling.
The other documents are various procedural motions and motions to dismiss the tax charges. Apparently the govt. is indicting Kaplan for failing to pay excise taxes from gambling income earned in Costa Rica.
I don't know what are Mr. Kaplan's chances of success. But they are probably higher on appeal than at the trial level.
If he wins on the first motion about casino gambling not covered by the Wire Act then online poker has its exemption.
This will take some time and the situation is different than during Jay Cohen's case.

[BluffTHIS!]

[ QUOTE ]
If the treaty was passed after the ban, probably (although it would not necessarily always work.)

[/ QUOTE ]

On the international law side, I would think that such a criminal law passing after the treaty would void the treaty, or cause it to fall into abeyance. But on the domestic side, what precedents if any are there, regardless of chronology, for an international treaty taking precendence over domestic law? And this is aside from the specifics of this case where the DoJ will just spout the Trade Rep's line that the US never made any such commitments.

[adanthar]

There are a few I can think of, but the ones in criminal court have largely been death penalty cases dealing with violations of the right to consular access and that type of thing - in those, the treaty arguments have largely been ignored. This is another story, though; it's a less serious matter and the argument is much less technical. The case is also taking place in federal court, another good sign (state courts notoriously and almost universally don't give a damn about international obligations in crim law.)

Note, however, that none of this is a defense to income tax fraud and that even if he wins this case on that point, it's not binding anywhere except very tangentially persuasive evidence in that particular district.

[oldbookguy]

Actually I think Kaplan's chances are pretty good at trial.

This idea of the WTO defense actually was suggested by the Judge in the case, quoting from an old story at point spreads:

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BETonSPORTS CEO David Carruthers appears to have a little luck on his side these days. Judge Mary Ann Medler of the United States District Court, Eastern District of Missouri, ruled that World Trade Organization’s recent panel ruling in favor of Antigua can be introduced as grounds for dismissal of the indictment's against Carruthers.

The ruling was issued SUA SPONTE, which in Latin means “of one’s own accord,” is a legal term that means to act spontaneously without prompting from another party. Attorneys for Carruthers have until May 2nd, 2007 to file their motions. The US Government has until May 9 to file and any reply will be filed no later than May 16th, 2007.

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I posted a story in my pre 2+2 days at Card player about this.

http://forums.cardplayer.com/forums/...ic.php?t=47800

obg

[JPFisher55]

Actually, income tax evasion does not seem to be part of the Kaplan case. It is evasion of excise and gambling taxes charged by fed. and some states. Kaplan seems to argue that such taxes are not due on gambling income from Costa Rica.

[adanthar]

[ QUOTE ]
Actually, income tax evasion does not seem to be part of the Kaplan case. It is evasion of excise and gambling taxes charged by fed. and some states. Kaplan seems to argue that such taxes are not due on gambling income from Costa Rica.

[/ QUOTE ]

Fair enough, I certainly didn't read the indictment [img]/images/graemlins/smile.gif[/img] If that's his defense, I suspect it's flawed, though.

[BluffTHIS!]

I went to MW and downloaded the 7th doc on the WTO defense. I skimmed the first half and read the second half closely. Although I am no lawyer, I would make the following points which I think logically follow:

1) By the "Charming Betsy" standard, in which domestic law should be interpreted in a manner if possible, so that it does not violate international treaty committments, it gives as one of the premises of same, that Congress normally would not wish to violate such treaty committments. However the DoJ could contend that Congress wished precisely to do that with the UIGEA.

2) The primary aspect of interpreting such potential domestic law vs international law conflicts is *whose interpretation of the international treaty applies*. I cannot ever see SCOTUS, and certainly not Congress, as mandating that a foreign appellate body like the WTO disupte resolution panels, can make interpretations that then have to be implicitly subsumed into domestic law. This isn't the EU and the US isn't going to go for that, and explicitly has refused to ratify the International Court treaties on war crime partially over that point IIRC. Thus I would expect the DoJ to assert that it is the US interpretation of its treaty committments, through US courts and the opinion of the chief legal official of the US, i.e. the Attorney General, that shall determine such interpretations, and not the WTO appellate bodies.

3) The arguments about the Wire Act or other legislation not applying extraterritorily seem cogent, but the assertions that because the internet did not exist when the WA was passed and thus is not covered in general, which would imply domestically as well, do not seem well-reasoned. Just as if "transportation" was specified in a statute prior to a new mode of same being invented, from my understanding of the law such new forms would in fact be covered. And thus the internet, which is communicated via "the wire", i.e. phone lines, or via the air with wi-fi, i.e. radio, would be in fact be covered.


Again I'm no attorney, but the points above seem reasonable. However it is clear that Kaplan has very able attorneys who are making not only the best arguments they can, but arguments that other defendants with smaller pocketbooks and less able attorneys wouldn't be making.