Just one day after Chad Elie and John Campos submitted their supplemental briefs supporting possible implications that the Wire Act opinion could have on their case, Judge Lewis Kaplan denied their motions to dismiss all charges.
Elie, one of the payment processors allegedly tied to transactions for the poker companies, and Campos, the Utah banker accused of accepting cash for agreeing to handle US poker transactions, face numerous charges based on violations of UIGEA, IGBA, conspiracy to engage in money laundering, and in the case of Elie, conspiracy to commit bank fraud and wire fraud.
First and foremost, Judge Lewis Kaplan pointed to a long accepted principle that there is no summary judgment in criminal cases. Referring to United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000), Kaplan quoted:
“Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government’s evidence. [Citations omitted] Federal Rule of Criminal Procedure 12(b)(2) authorizes dismissal of an indictment if its allegations do not suffice to charge an offense, but such dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment’s charges.”
He further states, with respect to the pending UIGEA charges, that both defendants have argued that they would be “exempt” by statute as they were acting only as “financial transaction providers”. The indictment accuses both as “persons engaged in the business of betting and wagering”. While it may be proven that providing the financial transactions was the limit to their involvement, it has not as yet been proven to be true, as the government has not offered all it’s evidence, therefore this would be a decision reserved for trial.
As to the IGBA charges, the defendants are charged with “operating an illegal gambling business”. While the question of whether internet poker is actually “gambling” has yet to be ruled upon, the defense still contends that the question of extraterritoriality remains. Although the poker companies themselves were headquartered outside of the United States, the government will still have the opportunity to prove that the conduct of those companies, and anyone charged similarly, as ““whoever conducts, finances, supervises, directs,or owns all or part of an illegal gambling business” violated New York state law, as the indictment alleges.
Because IGBA relies on charges of “gambling” and because the defense has always argued that, under that statute, poker does not fit the definition of gambling 1 the court contends that if internet “poker constitutes gambling as a matter of law” the defense argument would be null. If it raises however, “an issue of fact”, it would be the responsibility for the trier of fact to address, in this case, a jury, and not to be disposed of in a pretrial motion.
For the above reasons and because all evidence to support the charges has not yet been offered, 2 the judge denied all motions for dismissal of the indictment.
The trial is set to commence on April 9, 2012.
- According to the IGBA, “‘gambling’ includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.” ↩
- United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) “Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial to satisfy the jurisdictional element of the offense, the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment.” ↩