Thursday, April 21, 2011

Bad legal analysis

This afternoon somebody with the screen name of Ronin555 posted this note on a 2+2 forum:

As a criminal defense lawyer familiar with the statutes under which the US Attorney's Office proceeded against Full Tilt and Poker Stars, I was incredibly disappointed in the criminal indictments. Here's a link to my legal analysis of the charges, for those interested: http://www.relentlessdefense.com/our-team/kevin-j-mahoney/commentary-on-high-profile-cases/u-s-attorney-s-office-on-tilt/

(Hat tip to Tweet from Erik Seidel.)

Sounded interesting, so I read it. The name on the page, and thus the presumed author, is Kevin J. Mahoney.

I quickly ran into a problem. He writes, "The U.S. Attorney’s Office is also charging the defendants with violating the Wire Act. The Wire Act, found at 18 U.S.C. §1084, provides in pertinent part as follows...."

Although I had not previously had any reason to read the indictments, my friend C.K. had mentioned in one of her posts that the Wire Act (18 U.S.C. 1084) was not implicated. So I finally looked at the indictment myself. A quick scan through it did not find any mention of the Wire Act. I did a text search for "1084" and found no instances of it, though a similar search did find the other numerical sections of the U.S. Code referenced.

In short, C.K. is correct--the Wire Act is not referred to in the indictment.

But Mr. Mahoney writes, after a brief analysis of the Wire Act,
For the Wire Act to apply, the Federal Courts have consistently ruled that, consistent with the plain language of the statute, the object of the gambling must be a sporting event or contest. Since there is no allegation of any kind that these defendants engaged in online sports betting, the U.S. Attorney’s Office cannot even make a colorable claim that these defendants violated the Wire Act. Under these circumstances, indicting the defendants for violating the Wire Act is disgracefully unethical.

There are plenty of things to dislike about this whole affair, but misinterpretation of the Wire Act is not among them. (Incidentally, that "consistently ruled" thing is a stretch. As far as I know, there has been just one case in the whole country addressing the sports/nonsports question. That case got both a trial court and a circuit appellate court decision (read it here) saying that it pertained only to sports betting. I suppose that two for two is "consistently" in a sense, but it's hardly a broad-based judicial consensus. I don't doubt that most courts would be likely to agree--it's just that they haven't had occasion to do so yet.)

Mr. Mahoney, did you not read the indictments before writing your "analysis"? If you did, how could you conclude that violation of the Wire Act was among the criminal counts? Or were you deliberately misleading your readers, in order to score easy rhetorical points? If you didn't read or didn't understand the document you were attacking, after holding yourself out as one who is "familiar with the statutes under which the US Attorney's Office proceeded against Full Tilt and Poker Stars," wouldn't you agree that that is, um, "disgracefully unethical"?

It is impossible to assign any credibility to his work when he makes such a fundamental error. If he doesn't get right what laws are in play, who would trust him to correctly understand the statutes and/or correctly be applying the facts to the law and coming up with any sort of believable conclusion?


Addendum, April 22, 2011


Mr. Mahoney has now changed the text of his article. The first excerpt I quoted has now been changed to read, "The Wire Act, found at 18 U.S.C. §1084, also does not provide legal grounds to prosecute the defendants. It provides in pertinent part as follows...." The last sentence of the second excerpt I quoted has been removed. He made these changes without leaving a notation anywhere about having done so, which means that a reader might wonder whether I misquoted him. I also checked the 2+2 forum where he left the announcement of his article, and he did not add a subsequent post explaining that he had been wrong about the Wire Act and saying that he had revised his article. In short, it appears that Mr. Mahoney knows that he was wrong, but is unwilling to admit it. So in addition to being a sloppy, careless attorney, he's not the most ethical, intellectually honest guy on the planet.

9 comments:

mpethybridge said...

Ha, yeah, I was laughing when I read the Wire Act analysis in that guy's post. That said, his analysis of the UIGEA defense was ok.

BWoP said...

He also states that the UIGEA doesn't define what constitutes "unlawful internet gambling."

The UIGEA specifically defines "unlawful internet gambling" in 31 U.S.C. 5362(10):

(10) Unlawful internet gambling.—
(A) In general.— The term “unlawful Internet gambling” means to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.

BWoP said...

He also states that the UIGEA doesn't define what constitutes "unlawful internet gambling."

The UIGEA specifically defines "unlawful internet gambling" in 31 U.S.C. 5362(10):

(10) Unlawful internet gambling.—
(A) In general.— The term “unlawful Internet gambling” means to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.

PokerLawyer said...

I just wanna know...what is a "morsal"? Seriously, I had to look it up b/c I thought maybe it was a term I needed to know. Nice write up, Grump. As a lawyer, myself, my biggest fear is writing anything that could be deemed a misinterpretation or an erroneous application of the law, which can, as you point out, only serve to undermine severely one's credibility. Laziness is always an attorney's worst enemy (guilty!), but that was just outright baaaad. Thanks again.

Grange95 said...

"For the Wire Act to apply, the Federal Courts have consistently ruled that, consistent with the plain language of the statute, the object of the gambling must be a sporting event or contest. Since there is no allegation of any kind that these defendants engaged in online sports betting, the U.S. Attorney’s Office cannot even make a colorable claim that these defendants violated the Wire Act. Under these circumstances, indicting the defendants for violating the Wire Act is disgracefully unethical."

Two federal courts I know of have addressed the issue, and they came to opposite conclusions. See here: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202484130367

Note that the 5th Circuit decision is not binding outside the circuit, and that the case arose from the unusual circumstances of gamblers trying to avoid credit card debts. Don't count on the same interpretation in a criminal gambling case.

Zane said...

You are stuck on the exact statute (18 U.S.C. 1084) not being in the indictment. The charges specifically include Wire Fraud (18 U.S.C. 1343, see page 34 of the indictment). The original 2+2 poster was wrong, and so is this article.

Rakewell said...

I don't know that I'm "stuck" on it. But when somebody purports to be an expert on the statutes listed in the indictment, then asserts that a statute is named when it isn't, and builds a good chunk of his argument against the indictment on its supposed misapplication of that statute, yeah, I find that rather damning of the author's work. The best you can say about it is that he was sloppy and careless, which is not the highest praise.

Anonymous said...

Perhaps you didn't read the article, nowhere does he state the Wire Act is included in the indictment, he's simply stating the Wire Act doesn't apply either.

Rakewell said...

The author of the article has now changed the text, without noting that he did so. The first excerpt I quoted has now been changed to read, "The Wire Act, found at 18 U.S.C. §1084, also does not provide legal grounds to prosecute the defendants. It provides in pertinent part as follows...." The last sentence of the second excerpt I quoted has been removed.