US SPORTS BETTING
1 Murphy v. NCAA, 138 S.Ct. 1461, 1470 (2018). 2 8 U.S.C. § 3702. 3 Murphy, 138 S.Ct. at 1475-78. 4 See Ryan Rodenberg, United States of Sports Betting: An Updated Map of Where Every State Stands, ESPN (last visited August 15, 2021),
https://www.espn.com/chalk/story/_/id/19740480/ the-united-states-sports-betting-where-all-50- states-stand-legalization.
5 See id. 6 Mark Hichar, Even if the PASPA Is Struck Down, the Wire Act Will Still Prohibit Sports Bets from Crossing State Lines, Pub. Gaming Int’l, Apr. 2018, at 40, available at
http://www.publicgaming. com/PUBLICGAMINGMARCHAPRIL2018/ MARKHICHARFINAL.pdf.
7 Steven A. Engel, Office of Legal Counsel, U.S. Dep’t of Justice Reconsidering Whether the Wire Act Applies to Non-Sports Gambling, 42 O.L.C. 1, 18 (Nov. 2, 2018),
https://www.justice.gov/olc/ file/1121531/download (“UIGEA defines ‘unlawful Internet gambling’ as follows . . . That term, however, ‘does not include’ certain enumerated activities. For instance, UIGEA excludes from coverage certain bets or wagers that are ‘initiated and received or otherwise made exclusively within a single State’ and done so in accordance with the laws of such State, even if the routing of those wire transmissions was done in a manner that involved interstate commerce. UIGEA’s definition of ‘unlawful Internet gambling’ simply does not affect what activities are lawful under the Wire Act.”) (internal citations omitted). Notably, this Opinion was recently invalidated by the First Circuit on other grounds. See N.H. Lottery Comm’n v. Rosen, 986 F.3d 38, 44-45 (1st Cir. 2021). However, prosecutors are not constrained by whether this Opinion remains in force. Accordingly, the risk remains that federal prosecutors could adopt an interpretation of the Wire Act that includes intermediate routings.
8 See, e.g., United States v. Lyons, 740 F.3d 702, 716 (1st Cir. 2014) (noting the “Wire Act’s evident applicability to the internet”); United States v. Corrar, 512 F. Supp. 2d 1280, 1289 (N.D. Ga. 2007) (holding the Wire Act applicable to sports gambling activity on the Internet); United States v. Cohen, 260 G.3d 68, 76 (2d. Cir. 2001) (affirming the conviction of the founder of an online sportsbook under the Wire Act for transmitting bets via the Internet).
9 The authors added in bracketed numbering not contained in the Act for the readers’ benefit.
10 See United States v. Lyons, 740 F.3d 702, 713 (1st Cir. 2014); United States v. Bala, 489 F.3d 334, 342 (8th Cir. 2007); Cohen, 260 F.3d at 73.
11 Cohen, 260 F.3d at 75. 12 No. 98 cr 1174, 1999 U.S. Dist. LEXIS 22351, at *12 (S.D.N.Y. Sept. 16, 1999).
13 Id. at *13. 14 See Hichar, supra n. 6, at 40. 15 18 U.S.C. § 1084(a). 16 See id. § 1804(b) (“[n]othing in this section shall be construed to prevent . . . the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a
10 OCTOBER 2021 GIO
State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal”) (emphasis added).
17 Id. (emphasis and bracketing added). 18 “For”, Merriam Webster Dictionary (2021),
https://www.merriam-webster.com/dictionary/for.
19 Id. 20 See Liparota v. United States, 471 U.S. 419, 427 (1985) (holding that “requiring mens rea is in keeping with our longstanding recognition of the principle that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’” and noting that this rule “provides a time-honored interpretive guideline when the congressional purpose is unclear”).
21 Because the interstate transmission is the only remaining morally blameworthy element of the crime, it does not just function as a jurisdictional element, but rather also as a substantive element of the crime. Accordingly, the exception to the presumption in favor of scienter for mere jurisdictional elements is necessarily inapplicable here. For a discussion of the presumption in favor of scienter and the jurisdictional exception, see Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). The Court’s discussion in Rehaif supports the application of the presumption in favor of scienter to the interstate transmission element of the Wire Act. As the Court explained in Rehaif, it is appropriate to extend the word “knowingly” to elements involving otherwise innocent conduct where doing so “helps to separate wrongful from innocent acts.” Id. at 2197. That is precisely the case here, as the interstate transmission element is the only wrongful act with respect to intermediate routings. This conclusion is further reinforced by the Act’s inclusion of the word “for” in the interstate transmission element of the Wire Act (not present in the statute at issue in Rehaif). Cf. 18 U.S.C. § 922(g). This additional language further clarifies Congress’s intent to extend the knowledge requirement to this element.
22 Staples v. United States, 511 U.S. 600, 606 (1994) (“[O]ffenses that require no mens rea are generally disfavored, . . . [and] some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.”); Liparota, 471 U.S. at 426; United States v. U.S. Gypsum Co., 438 U.S. 422, 437-38 (1978) (citations omitted) (noting that criminal offenses requiring no mens rea have a “generally disfavored status”).
23 Staples, 511 U.S. at 614-15; see also Liparota, 471 U.S. at 426 (adopting narrower construction requiring proof of mens rea as “particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct”)
24 Liparota, 471 U.S. at 425 (internal citation omitted).
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