US SPORTS BETTING


transmission clause. As defined by Merriam Webster’s Dictionary, the word “for” is “a function word used to indicate purpose” or “to indicate an intended goal.” It is also “used as a function word to indicate the object or recipient of a perception, desire, or activity.” Thus, by including the word “for” to modify “transmission in interstate or foreign commerce,” the provision makes clear that only those transmissions intended to be transmitted in interstate or foreign commerce should fall within the scope of the prohibition. Thus, based on the inclusion of both “knowingly” and “for,” the text is clear that the knowledge requirement extends to the interstate transmission requirement. The analysis should end here. However, even were it possible to read the text more broadly to include unintentional transmissions in interstate commerce, the rule of lenity would counsel against such a sweeping interpretation. To understand why, it is important to stress that the broader interpretation would sweep in intrastate betting communications routed over the Internet that originate and ultimately arrive in the same state—including within states which permit sports wagering over the Internet. Thus, the broader reading would necessarily convert that entirely lawful conduct into unintentionally unlawful conduct solely based on the inadvertent routing of a communication through a second state. Because sports betting is now legal in many states, the failure to extend the mens rea requirement to the interstate transmission clause would remove the mens rea requirement from the only remaining morally blameworthy aspect of the conduct. As such, it would convert this law into a strict liability crime.


However, strict liability crimes are generally disfavored unless the provision expressly states that it operates without a mens rea requirement. Indeed, the Supreme Court has repeatedly rejected the invitation to construe a statute as potentially imposing criminal sanctions on “a class of persons whose mental state . . . makes their actions entirely innocent.” The Court has emphasized that “‘[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.’” Accordingly, given that the Wire Act expressly includes a mens rea element, the rule of lenity would strongly counsel in favor of the narrower reading of this provision.


CONCLUSION


There remains immense untapped growth for the sports-wagering industry in America, but that potential is stifled by the significant legal uncertainty created by the Wire Act. Furthermore, OLC plays an important role in conveying which kinds of prosecutions are blessed (or not blessed) by DOJ. Thus, even though OLC’s opinions do not create binding law, they play a crucial role in providing legal clarity to the industry. Regulatory guidance is necessary to provide much needed clarity to this nascent industry. Accordingly, DOJ’s OLC should reduce the persistent legal uncertainty surrounding the Wire Act by issuing a formal opinion holding that the Wire Act does not extend to intermediate routings. It looks like the ball is in your court, OLC.


BARRY BOSS Washington, D.C.


bboss@cozen.com | (202) 912-4818 Barry is co-chair of Cozen O’Connor’s Commercial Litigation Department and co-chair of the firm’s White Collar Defense & Investigations Practice Group. He is also a former managing partner of the firm’s Washington, D.C. office. Prior to joining Cozen O’Connor, Barry served as an assistant federal public defender in Washington, D.C. Barry focuses his practice on advising companies and individuals confronting potential criminal exposure. He Barry has extensive jury trial and appellate experience and has successfully defended individuals and corporations under scrutiny for a wide range of criminal


activity throughout the country, including price-fixing, money laundering, fraud, environmental offenses, gambling, bribery, corruption, and racketeering. He also advises individuals, including senior and C-suite executives, in complex internal and government-facing investigations, often involving multiple multinational jurisdictions and authorities.


Barry has significant experience in sentencing. Previously, he served as a co-chair of the American Bar Association’s Criminal Justice Section Sentencing Committee and a co-chair of the U.S. Sentencing Commission’s Practitioners Advisory Group. Barry frequently writes and speaks about sentencing issues, and serves as a sentencing expert for national media organizations. The Washington Post referred to Barry as an “expert” on federal sentencing law.


Among other honors, Barry has been ranked by Chambers USA and Best Lawyers for the past 11 years. Clients describe Barry as “a top-rate lawyer with great judgment” who has “a great demeanor with clients and regulators, and is unflappable even in the most-tense situations.” An investigative TV journalist noted in a report that Barry is “considered one of the top white-collar crime attorneys in the country.” Barry is a co-author of Federal Criminal Practice, an 800-page treatise for criminal defense attorneys.


KARA L. KAPP Washington, DC


kkapp@cozen.com | (202) 304-1457 Kara Kapp is a partner in Cozen O’Connor’s White Collar Defense & Investigations Practice Group. She helps companies implement proactive compliance programs to mitigate risks of downstream exposure and reinforce a positive corporate culture. She also represents Fortune 500 entities, corporate executives, and foreign defendants at every stage of regulatory investigations and federal criminal enforcement actions in white collar matters. Kara has helped clients navigate allegations of securities fraud, health care fraud, false statement claims, tax fraud,


antitrust offenses, environmental offenses, Foreign Agent Registration Act violations, and Foreign Corrupt Practice Act violations, among others. Her practice has a special focus on representing executives and entities in the cryptocurrency, financial, and sports wagering industries and in representing foreign defendants. Kara has significant experience briefing trial and appellate matters before the U.S. Courts of Appeals, the U.S. Supreme Court, federal district courts, and the Illinois Appellate Court. She is a member of the D.C., California, and Illinois bars, and she is admitted to practice before the U.S. Supreme Court, the U.S. Courts of Appeals (Fourth, Seventh, Nine, and DC Circuits), and the U.S. District Courts (District of Columbia, Northern District of Illinois, and Northern District of California).


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