FOR THE SECOND CIRCUIT

1. Overview

The evidence at trial established that Cohen, with the assistance of three co-conspirators, Steven Schillinger, Haden Ware, and Spencer Hanson, formed the World Sports Exchange ("WSE") to engage in book-making on American sporting events -- i.e., posting odds and taking bets and wagers on the outcome of such events. The conspirators were American citizens and, although they located the business offshore, on the Carribean Island of Antigua, they directed their book-making activities primarily, if not exclusively, at residents of the United States. Cohen and his fellow bookmakers promoted their sportsbook in radio, magazine, and newspaper advertisements throughout the United States, and invited Americans to bet in either of two ways: orally, by calling WSE's toll-free telephone numbers, or electronically, by using computers connected to the Internet where, as one WSE advertisement put it, gamblers could "bet with a click of a mouse." In this way, they quickly developed a thriving business. In one fifteen month period alone, Cohen received more than $5.3 million from his American clients, who, on Cohen's instructions, wire-transferred these funds from the United States to an account controlled by Cohen in Antigua. The funds were used to establish "betting accounts" with Cohen's sportsbook from which bettors could stake their wagers.

Over the course of the conspiracy, using funds transferred to Cohen in this manner, tens of thousands of wagers were placed, all of them by means of WSE’s toll-free telephone lines or its "click and bet" website. Like most bookies, Cohen and his conspirators derived profits not from winning on a particular bet or group of bets, but from commissions, commonly known as "vig" or "juice," on each bet. At Cohen's book, the "vig" typically was 10% of the amount of the bet. Because WSE was located offshore but took its bets from clients in the United States, WSE used interstate and international wire communications for virtually every aspect of its book-making business, including the transmission of (1) information about how to bet with WSE (including how to set up an account, verification that funds had arrived), (2) actual bets or wagers, and (3) communications which entitled the bettors to receive money and credit as a result of bets or wagers placed with WSE. In spite of Cohen’s arrest and prosecution, Cohen continued through much of the trial to serve as President of WSE and to oversee its book-making activities in the United States.

The Government's proof included audio tapes of conversations among undercover agents, Cohen, and his co-conspirators; printouts of "screens" of WSE's Internet website; videotapes of WSE's website as gambling transactions were actually being effectuated; advertisements placed by Cohen in American newspapers, magazine, and other media; bank records reflecting transfers of money between bettors and WSE; and telephone records reflecting betting-related activities involving the sportsbook. In addition, the Government presented testimony of many witnesses, including undercover agents, advertising and public relations personnel whom Cohen retained to promote WSE’s sportsbook in the United States, a private investigator retained by the National Football League, which had accused Cohen of violating the Wager Act and other laws in an unsuccessful effort to halt his use of certain trademarks, and representatives of the various banks and international telephone services used by Cohen to conduct business with American customers.

2. WSE’s Book-Making Operation

Cohen and Schillinger formed WSE in late 1996 in order to take bets on the outcomes of sporting events. (Tr. 378-81)^*. Cohen was WSE's President, Schillinger was his partner, and Hanson and Ware were their principal assistants. (Tr. 870-71). WSE operated out of a one-room office in Antigua, where Cohen, Schillinger, Ware, and Hanson used a bank of telephones and computers to conduct WSE’s book-making activities. (Tr. 415-17). In a telephone conversation with an undercover agent during December 1997, Cohen described himself as one of the founders and owners of WSE (GX 46-T, at 2-3), and described the business of WSE as "sports betting on the Internet." (GX 46-T, at 2-3). Cohen boasted that, although his book-making business had only become operational in January 1997, it had already attracted approximately 1,600 customers. (GX 46-T, at 8).

In order to attract customers, Cohen conducted an advertising campaign directed at residents of the United States. Cohen retained an advertising firm based in San Francisco named Ingalls-Moranville, as well as a public relations firm named Echo Communications. (Tr. 377-382, 466-468). Under Cohen’s direction, Ingalls-Moranville prepared and placed advertisements in numerous American newspapers and magazines that solicited readers to call WSE and place wagers on sporting events. (Tr. 380-82, 459; GX 302, 309). One such advertisement, directed at Internet users, urged readers to "[b]et football on-line" and stated:

At World Sports Exchange, you're only a few clicks away from placing bets on your favorite sports events. From opening day to the Super Bowl and beyond, World Sports Exchange offers true on line sports wagering.

(Tr. 405; see also GX 309). Another advertisement, prepared as a flyer for distribution to WSE’s existing customers, similarly reminded readers that "[f]ootball season is fast approaching," and urged them to send money so that they could "[p]lace bets with the simple click of a mouse." (Tr. 412-414). Echo Communications prepared press packets for distribution to American journalists who might feature WSE in news articles and reports. (Tr. 475-482). Cohen was personally responsible for the U.S.-directed advertising campaign, including selecting the publications and Internet websites which would feature his advertisements (Tr. 395-96); reviewing and approving advertising copy and press packets (Tr. 400), and paying the bills for these services. (Tr. 409-410).

The methods by which Cohen and his co-conspirators conducted their book-making activities were carefully documented in an FBI investigation of offshore bookmakers.^* In the course of that investigation, New York-based undercover agents opened accounts with WSE; placed bets through WSE’s toll-free operators and "click and bet" website; funded and received the proceeds of these bets; and conducted tape-recorded telephone conversations with WSE personnel, including Cohen and his co-conspirators. (Tr. 42-85, 144-173, 308-323, 582-595, 615-661; GX 1, 1-T, 1-V, 3-V, 5-V, 8-V, 11-V, 13, 13-T, 20-V, 23-V, 24-V, 39, 39-T, 46, 46-T, 51, 51-T, 83, 83-T, 101, 101-T, 103-c, 103-T, 114, 114-T, 128, 128-T, 138, 138-T, 140, 140-T, 148, 148-T, 149, 149-T, 150, 150-T, 151, 151-T).

In one example (which was the subject of Count Two of the Indictment), an undercover agent called the toll-free number listed on WSE’s website, and was informed by the person who answered the telephone of WSE’s minimum betting requirements ($300 to open a wagering account, $10 for an on-line bet, $50 for a bet placed by telephone) and instructed on how to wire-transfer funds to WSE for the purpose of establishing a wagering account. (GX 1-T, at 7-10). Based on these instructions, the agent opened an account by sending a $500 deposit to the sportsbook via Western Union. (Tr. 44-46).

In another example (which was the subject of Count Six of the Indictment), an undercover agent placed bets on a previously opened account via WSE’s toll-free telephone number. The agent began the telephone conversation by inquiring, "Do you take bets over the phone," and the WSE operator answered, "Yeah." (GX 13-T, at 1). After obtaining the name of the wagering account and the relevant password, the operator asked the agent "who do you need?" (GX 13-T, at 2). The agent replied that she wished to wager on two hockey games -- Colorado at New Jersey, and Philadelphia at Florida (GX 13-T, at 2-3, 805-A) -- and then placed two bets, $60 to win $50 on the Philadelphia/Florida hockey game and $50.00 to win $52.50 on the Colorado/New Jersey hockey game. (Tr. 169; GX 13-T, at 2-3, 805-A)^*. The UC later closed the account and received the balance from WSE.^**

In another example (which was the subject of Count Eight), an undercover agent placed bets in a toll-free call to co-conspirator Spencer Hanson. During the conversation, on March 18, 1998, the bet was placed as follows:

Agent: Can I place a bet right now?

Hanson: You can place a bet right now.

Agent: Alright, can you give me the line on the um Penn State/Georgia Tech game, it's the NIT third Round game tonight.

Hanson: Its Georgia tech minus 7 ½, total is 147.

Agent: Georgia Tech minus 7 ½, umm I wanna take Georgia Tech. Can I take 'em for 50?

Hanson: Sure.

Agent: Okay. And how 'bout the Marquette/Minnesota game?

Hanson: Minnesota minus 6 totals 128. So you got your 55 for 50 on Georgia Tech minus 7 ½.

Agent: Right, okay and I'm sorry the Minnesota was what now?

Hanson: Uh Minnesota minus 6.

Agent: Okay I'm gonna take Minnesota.

Hanson: Okay.

Agent: Minus 6 for 50.

Hanson: 55 wins 50 on Minnesota minus 6?

Agent: You already taught me the trick, 55 wins 50 right?

Hanson: Right.

(GX 138-T at 21). Several other undercover bets were placed with WSE in substantially the same manner. (See GX 150-T, at 2-4). At no time were the agents told that their bets were conditional or subject to rejection. In every case, the bet was immediately and unequivocally accepted by WSE and the whole transaction was completed on the telephone. In addition, between October 17, 1997, and November 7, 1997, undercover agents transmitted numerous bets from New York to Antigua by means of WSE’s Internet website. (See Tr.56-78, 147-173; GX 3-V, 5-V, 8-V, 11-V). Each of these bets was placed by following the website’s instructions to select a bet amount, team, and game, and then click the "place wager" icon on the computer screen. (Id.). The bets required no further action on the part of the agent than a click of the "place wager" icon. (Id.).

WSE operated on a massive scale. Between February 1997 and November 1998, Americans placed more than 60,000 telephone calls to WSE through its toll-free numbers. (See GX 821, 822, 824). Calls were made from all fifty states, including more than 6,100 from New York. (See Tr. 253, 265, 302; GX 821, 822, 824). In addition, between June 14, 1997 and September 3, 1998, Americans sent 8,856 separate wire transfers, aggregating approximately $4,884,500, to WSE via Western Union. (Tr. 219; GX 820). More than $298,000 of this money was sent by bettors in New York (id.), with many of the wire transfers reflecting that they were "requested by Cohen" or in "care of Cohen." (Tr. 218-19, 233, 237, 240-42). Dozens of the wire transfers specifically directed to Cohen were transmitted after his arrest in March 1998. (Tr. 1180-82; see GX 1000J-P, 1001E-K).

C. The Defense Case

Before trial, in conformity with the relevant case law, the District Court ruled that Section 1084(a) is a general intent crime, not a specific intent crime. (See pp. 16-21, infra). Accordingly, the District Court held that Cohen could not attempt to defend actions violative of Section 1084(a) on the ground that he did not know they violated the statute. However, Judge Griesa declined to impose any direct restriction on Cohen’s own testimony, warning him instead that he may "testify about what he wants to testify about" (A. 184) but that any testimony would be subject to the Court’s later instructions to the jury that alleged ignorance of the meaning of the law was not a defense to the charged crimes. (A. 184).

During the defense case, Cohen took full advantage of the District Court’s failure to restrict his own testimony. Cohen testified in his own defense, and took the opportunity to advance the very defense that the District Court had ruled invalid: that he acted in the belief that his conduct was lawful. In so doing, Cohen laid the groundwork for his attorney’s attempt on summation to defy the District Court’s legal instructions and openly appeal for jury nullification of the charges. (See pp. 21-25, infra). Thus, Cohen admitted, among other things, that he remained the President of WSE, which was paying his legal fees, travel, and personal expenses (Tr. 838, 885-86), that he was in the business of bookmaking (see Tr. 910, 955); that his sportsbook took bets from gamblers throughout the United States (see Tr. 911, 951-52); that these calls involved transmission of information assisting in the placing of bets and wagers (see Tr. 927-28); and that he knew international telephone lines and the Internet were wire communication facilities. (See Tr. 876, 911).

However, Cohen testified that he personally read Section 1084, and decided that he did not violate its provisions. (Tr. 861). Cohen testified that he was aware that taking bets over the telephone was illegal (Tr. 829), and that he could not legally conduct his business from the United States (Tr. 829), but maintained that his conduct was legal because, in his mind and according to WSE's rules, everything took place in Antigua. (Tr. 829, 832, 862-63). Specifically, Cohen claimed that the placing of telephonic and Internet bets by Americans did not constitute transmission of "bets or wagers" -- which is per se unlawful under Section 1084(a) -- but rather "directions" to place such bets or wagers. (Tr. 913-15). According to Cohen, such "directions" constitute "information assisting in the placing of wagers and bets," which is subject to the "safe harbor" of Section 1084(b) if the information is only transmitted to and from jurisdictions where placing bets and wagers is legal. (See Tr. 829, 832, 862-63, 912-918, 951-53). Cohen further testified that, although he did not know whether placing bets or wagers was legal in other states (Tr. 924-25), he thought it was legal in New York because he knew of no statutes that made it criminal to place a bet or wager in New York. (Tr. 919).

In forming these views, Cohen did not claim to have received or relied on any advice of counsel. (Tr. 947). However, Cohen testified that he "relied" on certain other information. Cohen noted, for example, that he retained the accounting firm of Peat Marwick for tax advice and assistance in obtaining an Antiguan gaming license and that Peat Marwick never mentioned to him that his conducted violated Section 1984. (Tr. 816-818). This was significant, Cohen claimed, because he understood that Peat Marwick had consulted with its in-house attorneys for some purpose before accepting Cohen as a client. (Tr. 817). In addition, Cohen testified that he read an article in which a Department of Justice official was quoted as saying that little could be done about enforcing Section 1084 against offshore sportsbooks. (Tr. 860-62, 988). Cohen also claimed that he understood that New York’s government-sponsored Off-Track Betting Corporation allowed telephonic wagers to be placed on horse races run in New York from bettors outside New York (Tr. 839, 859-60, 868), and was aware of a corporation in a business similar to his own that was publicly traded and thus presumably operating lawfully. (Tr. 816). Finally, Cohen testified that he was aware that various amendments to Section 1084 had been proposed to "deal with offshore gambling," which allegedly gave him a "comfort level" that his conduct did not violate the then-existing statute. (Tr. 864-66).

On cross examination, Cohen admitted that he had been specifically informed by lawyers for the National Football League that his conduct violated Section 1084 and that, in spite of this advice, Cohen never sought counsel from any other lawyer. (Tr. 947-48). In addition, Cohen acknowledged that he knew that operating a sportsbook was legal only in one state -- Nevada -- and that, even there, it was not permissible to take bets from persons outside Nevada. (Tr. 881-82). Cohen also admitted that the quote attributed to an official of the Department of Justice said nothing about whether Internet gambling is legal under Section 1084 and that Cohen never sought the advice of the Department of Justice on this subject. (Tr. 950). Further, Cohen acknowledged that using international wires to transmit bets was illegal under current law. (Tr. 995-96). Finally, Cohen admitted that, although he claimed to conduct his bookmaking entirely in Antigua, his own articles of incorporation described WSE’s corporate purpose as "international betting and bookmaking." (Tr. 954-55; DX JJ).

In addition to Cohen, the defense called two of Cohen's former employers as witnesses. Both were principals of a firm named Group One, Inc., which was in the business of trading derivative securities. Each witness testified about Cohen's work at Group One, including the salary and bonuses that he earned in his last year of employment. (Tr. 730-764; 786-802). Although neither witness had any participation in running WSE, each confirmed that Cohen had retained Peat Marwick to perform tax and licencing work on behalf of WSE. (Tr. 742-43, 795-96).

D. Procedural History Relevant To Cohen’s "State Of Mind" Defense

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1. The Government’s In Limine Motion

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Before trial, Cohen’s counsel, Benjamin Brafman, Esq., informed the Government that he intended to argue that, even if Cohen knowingly engaged in acts proscribed by Section 1084(a), Cohen did not believe he was violating the law. (SA 4-5). In support of this argument, counsel indicated that he would call an Antiguan government official to testify that Cohen attempted to comply with Antiguan law, and to testify about conversations that she had with U.S. government officials which allegedly touched on the lawfulness of Antiguan sportsbooks such as Cohen's. (See SA 4).

In response, the Government moved in limine (1) to preclude Cohen from introducing evidence of his compliance with Antiguan law, and his beliefs about the application of United States gambling laws to his conduct; and (2) to preclude defense counsel arguing these points to the jury. (SA 11-13). The Government argued principally that, since Section 1084 created a general intent crime, the Government did not need to prove that Cohen knew his conduct violated the law, only that Cohen knowingly and intentionally engaged in acts proscribed by the statute. As a result, the Government contended, Cohen’s own subjective interpretation of Section 1084 and purported belief that his own conduct fell outside the scope of that statute were irrelevant. (SA 11).

On January 4, 2000, after hearing argument from the parties, the District Court agreed that Cohen’s knowledge of the law was irrelevant and issued guidance to the parties concerning the trial of the case. (See A. 183). Judge Griesa ruled that, although "the jury could consider whether there was a knowing use of a [wire communication] facility and so forth as I have described it and the government has described it," the Government would not be required to prove that Cohen "knew what he was doing was wrong or in violation of United States law," nor could Cohen "assert a valid defense on that basis." (A. 183). The Court emphasized, therefore, that defense counsel could not "argue about whether [Cohen] knew of the illegality" or "put on any evidence about whether he did or did not know about the illegality." (A. 183). The Court indicated, however, that, with respect to Cohen's own right to testify, it would permit him a degree of leeway to "testify about what he wants to testify about." (A. 184). That leeway, however, would be "subject to my instructions later to the jury." (A. 184).

In response to Judge Griesa's rulings, defense counsel assured the Court that "this is not a case of jury nullification" (A. 179), and that he would abide by the Court's rulings. (A. 188, 189). Specifically, counsel assured the Court that any testimony by Cohen concerning the intent requirement of the Section 1084(a) would be limited to whether Cohen knowingly used interstate and international wires in connection with his bookmaking activities. (A. 188, 189). After saying so, however, counsel appeared to blur the line between knowing conduct and knowing illegality, stating:

There is a difference between a court like yourself sir, ruling that the government doesn't have to prove that the defendant knew that he violated the law. I understand that. But there is also a huge difference between that on the one hand and me on the other hand trying to raise on the defendant's behalf a reasonable doubt as to whether or not he knowingly violated the statute. And all I seek to do is to offer a defense to the defendant that is there in the facts.

(A. 191 (emphasis supplied)).

In response to this seemingly self-contradictory comment, the District Court repeated its ruling, again stressing the relevant distinction between knowing conduct and knowing illegality:

Let me say the view I have of it right now is this, that if the defendant knew that he was using a wire communication facility . . . my view of the law is if he knew that he was using a wire communication facility for the purposes outlined in the statute, then he had the criminal mens rea, the criminal state of mind and would be guilty.

Let me repeat:

If he knew that he was using a wire communication facility for one or more of the purposes outlines in the statute, then he had the criminal mens rea. If he did it and he knew that, then he is guilty.

Now, if his defense is, well, I knew I was using the wire communication facility, but I really did not know it was illegal, then that is not a defense in my view.

(A. 192-93). The Court then asked defense counsel, "I take it that you would not propose to argue even if the jury found that he knew he was using a wire communication facility that he still could be acquitted because he didn't know that that was a violation of the law." (A. 195; see also A. 200-03). Defense counsel reassured the Court that in his opening and throughout trial he would "follow the court's instructions on that." (A. 195).

2. Cohen's Motion For Leave To Take A Foreign Deposition

Notwithstanding the Court's ruling concerning the intent element of Section 1084(a), approximately one week before trial, Cohen sought leave to take the deposition of Gyneth McAllister, an Antiguan government official involved in that country's gambling industry with whom he had dealings. (A. 206-208). In support of his motion, counsel for Cohen represented that McAllister was unable to travel to the United States due to health reasons (A. 206), but was prepared to testify about the status of the gaming industry in Antigua, Antiguan procedures concerning the licencing of sportsbooks, and the steps taken by WSE to comply with the requirements of Antiguan law. (A. 207).

Specifically, counsel proffered that McAllister would testify that she had met with U.S. Government officials concerning Antigua's efforts to establish a gambling industry; that the fact that American officials agreed to meet with her "allowed her to conclude that the United States Government was very interested in cooperating with the Government of Antigua on these matters" (A. 268); that at no time did the Government officials she met with inform her that Antigua's gambling scheme would violate American law; and that "she shared with Jay Cohen the import of these meetings," including her view that they amounted to "tacit acceptance" by the United States of Antigua's gambling industry. (A. 268). In addition, counsel proffered that the witness would testify about conversations she had had with Cohen in which Cohen expressed his views that his conduct did not fall within Section 1084. (A. 268).

The Government opposed this motion, arguing that, under the District Court’s prior ruling, the proffered testimony was irrelevant to whether Cohen violated Section 1084 or conspired to do so. (A. 207; 270-71). During a conference with the parties on February 10, 2000, the District Court reviewed each of the proffered points of testimony and found them to be irrelevant. This was so, Judge Griesa concluded, because the proffered testimony had no bearing on whether "the defendant did the physical acts, did the acts in the statute and if he knew that he was using a wire communication facility" for the purposes proscribed by Section 1084 and because, "[i]f he had conversations with other people, such as Ms. McAllister, and seemed to get some assurance that what he was doing was OK, my view is that that is not a defense." (A. 282). Accordingly, the District Court declined to authorize the taking of McAllister’s deposition pursuant to Rule 15 of the Federal Rules of Criminal Procedure.

3. The Arguments At Trial

Despite the District Court's previous rulings, the defense attempted at trial to mount the very defense that it was prohibited from advancing. Thus, defense counsel stressed in his opening statement the supposed efforts Cohen made to comply with Antiguan law, noting that Cohen hired an accounting firm "to set up [WSE] in a manner that . . . complied with Antiguan law." (Tr. 27; SA 145). Moreover, while counsel conceded that the purpose of WSE was to take bets from Americans, he argued that "Mr. Cohen was so committed to running this business correctly that he moved to Antigua [and] became a resident of Antigua." (Tr. 29; SA 147). Similarly, counsel told the jurors that they would:

Learn that Mr. Cohen, a very bright young man, retained one of the biggest accounting firms in the United States to guide [WSE] through the licencing procedure, specifically so he would not violate the law and that Kidder Peabody helped prepare the applications in Antigua, filed the documents with the government in Antigua, fully cooperated with the government of Antigua, [and] that the government of Antigua licenced World Sports Exchange.

(Tr. 31; SA 149 (emphasis added)). Counsel further emphasized that, "as far as Mr. Cohen was concerned and is concerned his business was legal." (Tr. 35; SA 153).

In light of counsel's extensive references to Antiguan law, at the end of counsel's remarks, the District Court summarized the essential elements of Section 1084(a), and reminded the jury that its role was to apply United States law to the facts developed at trial. (See Tr. 41; SA 159). In addition, numerous times during trial, the District Court specifically reminded defense counsel that whether Cohen intentionally violated the law was irrelevant. (See, e.g., Tr. 291-93, 366-67, 553, 847, 944-45). Despite these efforts, defense counsel on summation not only returned the themes of his opening statement but openly appealed for jury nullification of the District Court’s legal instructions. Counsel began his address to the jury by invoking the "The Verdict," a film whose dramatic climax involves an attorney's successful appeal to jury nullification. Counsel stated:

[T]here is a wonderful statement in a movie that took place a long time ago. It was called The Verdict, starring Paul Newman. It's not a criminal case, and the facts have nothing to do with this case, but he says something there I have been waited 20 years to really understand and appreciate. He goes up to the jury and says to them, "Today you are the law." It is very simple. Such a simple statement. It is so extraordinarily relevant to what happened here. You will be instructed by the Court on what the law is, but your verdict is your verdict. No one goes in the jury room with you to tell you what your verdict must be.

(Tr. 1114; SA 163). Counsel proceeded to argue that to convict Cohen would be a "travesty," (Tr. 1115; SA 164), because Cohen's testimony

compels a verdict of not guilty. It compels a finding by you, ladies and gentlemen, that despite the calls [to WSE], despite the [money] transfers, despite what the government claims to be a betting business, that he did not knowingly violate the law of the United States and he should not be convicted.

(Tr. 1122; SA 171). According to counsel, this was because the "heart and soul of the case" involved one simple question, "Did Mr. Cohen knowingly violate the law? Not did he pick up a phone." (Tr. 1130; SA 179). Counsel also not only repeatedly referred to the legality of Cohen's bookmaking operation under Antiguan law (see, e.g., Tr. 1136, 1137, 1145; SA 1854, 186, 194), but invited the jury to disregard the Court's ruling that an "Antiguan law defense" was unavailable under Section 1084(a):

Now, his Honor is going to tell you that it is not technically a legal defense that the matter was legal in Antigua. So simply if you conclude that the matter is legal in Antigua, that doesn't give you the right to simply say not guilty, Mr. Cohen. That's what his Honor is going to tell you. That's what the government told you before and what they are going to tell you before and that's what they are going to tell you after I sit down.

That's not the point. I have to abide by the Court's rulings even if I object to them just like [Government counsel] do, but the question of whether or not this is legal in Antigua is not, as [the Government] suggests, irrelevant. It is the case. It is the case. If Mr. Cohen is operating a legal gambling business he is not guilty of violating Section 1084.

(Tr. 1155-56; SA 204-05). In the same vein, counsel argued that the jury should acquit Cohen because he "took extraordinary efforts not to violate the law, to tell you why he believed he did not violate the law." (Tr. 1158; SA 207). Similarly, counsel stated that the jury must acquit Cohen of the conspiracy charge because "there's no proof Mr. Cohen agreed with anyone to commit a crime because he did not believe as he told you that he was committing a crime." (Tr. 1152; SA 201). Finally, returning to his nullification theme, counsel exhorted the jury that "you are going to get the last word" and that "[y]ou get to consider how to apply the instructions to the facts and nobody can tell you how to do that." (Tr. 1157; SA 206).

Before delivering its rebuttal summation, the Government requested that the District Court give a curative instruction so that the jury would not be left with the misimpression that knowledge of the law was an element the Government was required to prove. (Tr. 1161-62; SA 210-11). The Court denied the Government's request to give a curative instruction, but noted that it would dispel any misimpression of the law in its general charge to the jury. (See Tr. 1161; SA 210).

4. The Charging Conference

And Instructions To The Jury

Before and during trial, the parties submitted proposed jury instructions to the District Court. The Government’s proposed instructions with respect to the elements of a violation of Section 1084 drawn from 2 L. Sand, et al., Modern Federal Jury Instructions, ¶¶ 39-7=12. (See SA 105-110). Consistent with those model instructions, the Government proposed that the jury be instructed that, in order to convict Cohen, it must find beyond a reasonable doubt that he performed the acts alleged in the Indictment "purposely and intentionally," and specifically that he "knew that a wire communication was being used between the United States and Antigua" to transmit bets or wagers or other information prohibited by Section 1084. (SA 110). However, in accordance with Sand’s instructions (see 2 L. Sand, et al., Modern Federal Jury Instructions, ¶¶ 39-12), and the District Court’s own pretrial ruling, the Government asked for the jury to be instructed, in relevant part, that "it is not necessary for the Government to prove that the defendant knew he was violating the law" and that "[i]t is not a defense that the defendant did not know or believe he was doing something illegal." (SA 110).

At the conclusion of the defense case, the District Court held a charging conference in which it reviewed and ruled upon the parties’ proposed instructions. Over Cohen’s objection, Judge Griesa ruled that, with slight modifications, he would instruct the jury in accordance with the Government’s proposed instructions. (See Tr. 1003-06, 1011-12, 1018, 1026-27, 1030-33, 1045-48, 1051-58; A. 696-99, 704-05, 711, 719-20, 723-26, 738-741, 744-51). As it had done before trial, the District Court rejected Cohen’s argument that the Government must prove that Cohen acted with the purpose of violating the law, stating, in relevant part:

[Cohen] does not have that authority under the law or fact to reinterpret the statute to have it say something which is different and apply it in a different way. It would be like someone saying if he possesses heroin, I believe heroin is peppermint candy and I know the statute doesn't cover peppermint candy and, therefore, I am going to call it peppermint candy and I'm not selling heroin because I am selling peppermint candy. Now I have used a little bit more extreme, but not too much of an extreme [example]. The law does not permit that. If the law permitted that, it would simply permit evasions by simply a personal construction which is contrary to an obvious set of physical facts.

(Tr. 945).

In addition, the District Court rejected as legally incorrect Cohen’s proposed definition of "bet," which depended on the notion that the only pertinent "transmission" of bets occurred within WSE's offices, from one spot on Cohen’s computer network to another spot on the same computer network. (See A. 357-358). Judge Griesa termed such a construction of Section 1084 "an obvious distortion and evasion of the statute," and contrary to the common-sense meaning of the word "bet." (See Tr. 846; A. 529). As Judge Griesa stated:

Its really a perfectly -- it's a dreadful argument -- frankly, and its as if the caller -- I mean, here you are saying, in the English language, that the telephone operator at WSE places the bet. You ignore the fact that someone in New York who wants to gamble, that person doesn't place the bet.

* * *

And then you say the data base server accepts and records the bet and causes a bet-accepted message to appear. And after this takes place, the WSE telephone operator orally confirms this to the individual on the other end of the line, to which you give no, no weight in terms of our statute, and you say, the transmission of the bet as taken place entirely within the WSE office in Antigua. That argument is totally, completely, 100 percent invalid as a matter of law.

(Tr. 846; A.529). On February 28, 2000, following summations, the District Court charged the jury in accordance with the rulings at the charging conference. With respect to the substantive Betting Counts (Counts Three through Six, and Count Eight), the District Court charged the jury that the Government was not required to prove that Cohen intentionally violated the law but that the Government was required to prove that Cohen (1) was in the business of betting or wagering, and that he (2) knowingly used a wire communication facility, for (3) any of the three forms of the prohibited transmissions. (See Tr. 1202-04; A. 867-69). With respect to the Information-Only Counts (Counts Two and Seven), the District Court gave the same instruction, except that it charged the jury that it may convict only if it found that Cohen transmitted "information assisting in the placing of bets or wagers." (Tr. 1197-98; A. 862-63). The District Court elaborated upon these instructions with detailed explanations of the relevant statutory language, including the three clauses of Section 1084(a). (See Tr. 1199, 1206-13; A. 871-78, 864).

In explaining what qualifies as transmission of "a bet on a sporting event or contest," the District Court stated, in relevant part:

if a person places a call form a place in the United States to a foreign country and says in words or substance, I wish to place a bet on such and such a sporting event, and if he specifies the amount of the bet and the other normal details, and if a person at the betting business in the foreign country says in words or substance we accept your bet, this is a transmission of a bet within the meaning of the statute.

(Tr. 1207; A. 872). In addition, in reference to the transmission of bets via the Internet, the District Court explained:

If you have determined here that the Internet used here was wire communication facility, if a person in the United States uses the Internet to send a message to the betting business in the foreign country, and that message is that the sender wishes to place a bet, and then if the Internet mechanism at the betting business sends a reply message confirming the bet, this again is the transmission of a bet within the meaning of the statute.

(Tr. 1207-08; A. 872-73). Responding to defense arguments, the District Court emphasized that, for purposes of determining whether the defendant’s conduct satisfies this definition, it was irrelevant whether the defendant "deemed" bets to take place only in Antigua or "construed" his conduct as outside the statutory definition. (Tr. 1208-09; A. 873-74).

In explaining what qualifies as transmission of a "communication which entitled the recipient to receive money or credit as a result of bets or wagers," the District Court stated, in relevant part:

[I]f a bet is placed or created as a result of a wire communication, and if this means that the bettor will receive money if he wins and the betting business will receive money if the betting business loses, this is in fact within the meaning of the statute, a situation where the communication entitles the bettor or the betting business to receive money or credit as a result of the bet within the meaning of the statute. The entitlement is contingent, but is still an entitlement within the meaning of the statute.

(Tr. 1212; A. 877). Finally, the District Court defined transmission of "information assisting in the placing of bets" as including "information given in the telephone call either by a person interested in placing bets or the party on the other line at the betting establishment interested in taking bets." (Tr. 1199; A. 864).

In instructing the jury with respect to the conspiracy charge (Count One), the District Court explained that the Indictment alleged an agreement to violate each of the previously defined clauses of Section 1084(a). (Tr. 1219; A. 884). The District Court instructed the jury, therefore, that, to convict Cohen of this charge, it must find that Cohen participated in a "conspiracy among some two or more people designed to carry out the acts which are made illegal under Section 1084." (Tr. 1219; A. 884). In portions of its charge that are not challenged on this appeal, the District Court also explained the "membership" and "overt act" elements of conspiracy and the distinction between the conspiracy charge and the substantive charges of the Indictment. (Tr. 1220-22, 1196-97; A. 885-87, 861-62).

In response to defense counsel’s arguments on summation, Judge Griesa included in his main charge to the jury the following curative instruction on Section 1084:

Now what the defendant must be proved to have known is that he knew that the deeds described in the statute as being prohibited were being done. I emphasize the words deeds. And what I come to now is very important in light of the evidence and summations.

It is not necessary for the Government to prove that [the defendant] knew that he was acting illegally under the statute. I repeat, it is not necessary for the government to show that he was acting illegally under the statute. I am contrasting knowledge of the deeds with knowledge of whether the deeds were illegal.

(Tr. 1214; A. 879). Judge Greisa further explained that "ignorance of the law is no excuse." (Tr. 1215; A. 880). Accordingly, "if [the defendant] did not know of its illegality, that is no excuse. If [the defendant] knew of the statute and misconstrued it, that is no excuse." (Tr. 1215; A. 880). The Court noted that this was Congress' intent in wording Section 1084 in such a manner, and that the rule was not unfair because the law was knowable and in our society "there is a legal profession which can be consulted with regarding specific questions under specific statutes." (Tr. 1216; A. 881).

Defense counsel objected to various portions of the District Court's charge, including the instructions on "ignorance of the law was no defense" and reference to the existence of a legal profession capable of providing advice on the meaning of statutes. (Tr. 1250-51; A. 915-16; see also Tr. 1284; A. 949). Defense counsel claimed that these comments imposed an "obligation" on a criminal defendant to seek counsel. (Tr. 1249; A. 914). Judge Griesa overruled these objections, emphasizing that his comments were for the purpose of "undo[ing] the damage" of a defense summation that "totally ignored what we had talked about as far as the rules of law" and "was virtually a request for jury nullification." (Tr. 1250-51; A. 915-16). Judge Greisa further explained:

[I]n view of the kind of summation given by the defense, which appealed constantly to a lot of extra legal concepts, I wanted to do something to explain that this law of ours is a fair law. And what I did was to say -- which is exactly true -- that when you are thinking about ignorance of the law being no excuse, you must put it in the context that people are able to find out what the law is if they wish to do so. I was not giving a conscious avoidance charge. That would have been unnecessary and inappropriate. But I said what I said for the purpose I said it, and it was in large part made necessary by an extreme departure in the defense summation from the rules of law.

(Tr. 1251; A. 916).

5. The Jury’s Verdict

The District Court submitted to the jury special interrogatories for each Betting Count (Counts One, Three through Six, and Eight). (See Tr. 1205-07, 1265; A. 870-72, 930). Those interrogatories called for the jury, in the event it found Cohen guilty of a count, to return special verdicts with respect to each of the three clauses of Section 1084(a) that were alleged to have been violated. (See id.). The jury found Cohen guilty on all counts of the Indictment, and reported by special interrogatory that it found Cohen guilty of violating all three clauses of Section 1084(a) in connection with each of the Betting Counts. (Tr. 1316-18; A. 980-82).

ARGUMENT

POINT I

The District Court Did Not Err In Failing To Instruct The Jury That Conspiracy Requires A "Corrupt" Or "Evil" Motive

Cohen seeks to challenge his conviction of conspiracy (Count One), arguing that the District Court’s instructions improperly allowed the jury to convict him without finding that he intended to violate the law. (Br. 12-38). Cohen does not dispute that Section 1084(a) prescribes a general intent crime; and, hence, that knowledge of the law is not an element of a substantive violation of the statute. See United States v. Blair, 54 F.3d 639, 641 (10th Cir. 1995) ("Because § 1084 proscribes the knowing use of wire communications facilities to take bets, the plain language of the statute clearly evidences Congress' judgement that general intent is the mens rea needed to establish a violation of § 1084.") (citations omitted); United States v. Ross, 1999 WL 782749 (S.D.N.Y. Sep. 16, 1999) (KMW), at *8-9 (same); United States v. DiNola, slip-op., at 1-2, 98 Cr. 1051 (WHP) (S.D.N.Y. March 4, 1999) (same) (SA 80-81); see also Bryan v. United States, 118 S. Ct 1939, 1946 (1998) (noting the general presumption that ignorance of the law is not a defense and that, unless the "text of the statute dictates a different result, the term 'knowingly' merely requires proof of knowledge of the facts that constitute the offense") (emphasis supplied).

Relying on People v. Powell, 63 N.Y. 88 (1875), however, Cohen argues that the law of conspiracy imposes a mens rea requirement greater than that of intent to commit the underlying substantive offenses. (Br. 12). According to Cohen, unless the objectives of a conspiracy are crimes that are "wrong in themselves" (mala in se), the Government is required to prove an extra element: that the defendant acted with a "corrupt" or "evil" motive, which would at least require the defendant’s knowledge of the law and specific intent to violate it. (Br. 12). Cohen claims to find support for this position in numerous decisions of the Courts of Appeals and in the Supreme Court’s plurality opinion in United States v. Keegan, 325 U.S. 478 (1945). (See Br. 21-38).

In fact, though, Powell’s "evil motive" doctrine was never broadly accepted in the federal courts and endorsed only in decisions outside this Circuit that have long since been overruled. Both this Court and the Supreme Court have repeatedly and unequivocally rejected the Powell doctrine, as has every federal court to consider the issue since the Supreme Court’s decision in United States v. Feola, 420 U.S. 671 (1975). As those cases recognize, there is no basis in logic or the text of the federal conspiracy statute for imposing an intent requirement for conspiracies that is greater than the intent requirement for the underlying offenses. Indeed, to do so would effectively read out of the conspiracy statute agreements to commit many offenses, since the only "evil motive" displayed by most conspirators is an intent to commit the underlying crimes. To do so, moreover, would call upon the courts to decide in every case, without any clear standard, whether the alleged objectives of a conspiracy were "wrong in themselves" or only made wrongful by judgment of Congress (malum prohibitum). At the same time, it would inject error in countless cases in which the district court failed to give an "evil motive" charge, including those involving conspiracies to commit controlled substance offenses and any other crime which was not recognized at common law as inherently wrongful or evil.

In People v. Powell, the defendant was convicted of conspiring to violate a state law which required public contracts to be advertised before they were awarded. See 63 N.Y. at 89-90. On appeal, the defendant argued that the court improperly instructed the jury that ignorance of the law was no defense. See id. at 89. The New York Court of Appeals agreed, and reversed the conviction. See id. at 91-93. The court began its analysis by affirming the settled principle that in cases "where a man is indicted for a prohibited act, he will not be allowed to say that he did not know of the existence of the law he had violated." See id. at 92. The court held, however, that ignorance of the law was a defense available to a person charged with violating New York's statutory proscriptions against conspiracy -- at least where the act was "innocent in itself," and done in "good faith." See id. at 92. The court did not advance any specific rationale for its holding; instead, it simply stated that the requirement that a defendant must act "corruptly" to be guilty of conspiracy was inherent in the concept of "conspiracy," which, the Court noted, "originally consisted in a combination to convict an innocent person by perversion of law." See id. at 92.

As Cohen points out (Br. 23-24), the Powell doctrine was mentioned favorably in several federal decisions during the early decades of the past century, see Cruz v. United States, 106 F.2d 828 (10th Cir. 1939); Landen v. United States, 299 F. 75 (6th Cir. 1924); Fall v. United States, 209 F. 547 (8th Cir. 1913). From its inception, however, the Powell doctrine was rejected by this Court and most others. This Court first did so in Hamburg-American Steam Packet Co. v. United States, 250 F. 747, 759 (2d Cir. 1918). In that case, the defendants were convicted of conspiring to defraud the United States by filing false manifests with customs officials in order to route coal and other supplies to German warships. See 250 F.2d 750. While it was not illegal for the defendant's to supply these goods to German vessels at the time, because the United States was still a neutral nation, see id. at 755-56, the defendants nevertheless concealed the destination and nature of the cargo lest French and British forces seek to intercept the cargo prior to its delivery. See id. at 760. At trial, all the defendants testified that they did not intent to break the law in connection with the filings they made. See 250 F. at 747. The district court instructed the jury that it could convict the defendants if the jury found that they agreed to cause false filings or false customs clearances to be made, see id. at 755, but declined the defendants’ request for an instruction that the Government had to prove that "in entering into this agreement [the defendants] intended to defraud the United States." See id. at 768. On appeal, citing Powell, the defendants claimed that the district court erred in refusing this charge. See id. 769, 770.

Addressing the defendants’ argument, this Court began by restating the familiar principle that "every one is presumed to know the law," and that "'[i]gnorantia juris neminem excusat' is a maxim in both civil and criminal jurisprudence which centuries of experience have approved." Id. at 758. It then turned to the defendants’ Powell claim:

But this principle, it is claimed has no application to the particular crime with which the defendants are charged. Criminal responsibility, it is said, is not entailed by a plan which involves a violation of provisions of statutory law, if those who engage therein are ignorant of the existence of the statute, or the interpretation thereof, which would render their plan unlawful.

Id. at 758 (emphasis added). Following the lead of the Sixth Circuit in Chadwick v. United States, 141 F. 225 (6th Cir. 1905), however, this Court rejected the argument, holding:

Whatever may be the law of the state of New York, we are satisfied that as to the statutory crime of conspiracy, as defined in the criminal code of the United States, it is not necessary to show that the defendants who are alleged to have conspired to do an act which is only malum prohibitum had knowledge of the unlawfulness of the act.

Id. at 759.

This Court again rejected the Powell doctrine in United States v. Mack, 112 F. 290 (2d Cir. 1940) (Hand, J.). There, the defendant, an owner of a brothel who employed Canadian prostitutes, was charged, in three separate counts, with conspiracy (1) to harbor aliens, (2) to transport prostitutes in interstate commerce, and (3) to fail to register prostitutes, in violation of a federal statute requiring such registration. Id. at 291-92.

On appeal, the defendant challenged the sufficiency of the evidence underlying his convictions of these counts. Id. at 291. This Court found that there was insufficient evidence to convict the defendant of the first two counts. Id. However, the Court upheld the defendant’s conviction for conspiring to fail to register an alien prostitute. In doing so, the Court rejected a claim, based on Powell, that the Government was required to prove the defendant’s knowledge of the registration requirements. Referring to Powell as "an anomalous doctrine," the Court held that a conspiracy charge under federal law need only rest upon an agreement to "commit all the elements of the crime [the defendants] are charged with conspiracy to commit." Id. at 292. Since the substantive failure-to-register offense did not require proof that the defendant acted with "knowledge that the proscribed conduct is unlawful," the Court concluded that the conspiracy charge likewise required no such proof. Id.

By 1974, the year before the Supreme Court decided Feola, the Powell doctrine had been so thoroughly repudiated that this Court could be "certain[]" that there was "no rule that the criminal intent required to satisfy a conviction of conspiracy to violate a statute must be greater than that necessary to commit the substantive crime." United States v. Mauro, 501 F.2d 45, 51 (2d Cir. 1974); see also United States v. Schwartz, 464 F.2d 499, 510 (2d Cir. 1972) ("a conspiracy conviction will be sustained upon the same showing of criminal intent necessary to make out a violation of the substantive offense"); United States v. Keegan,141 F.2d 248, 254 (2d Cir. 1944) ("We hold that to establish violation of the [conspiracy] statute nothing more has to be proven than that the parties ‘had in contemplation all the elements of the crime they are charged with conspiracy to commit.’" (quoting Mack, 112 F.2d at 292)), rev’d on other grounds, 325 U.S. 478 (1945).

If there remained any doubt on this point, however, the Supreme Court dispelled it Feola. In that case, the defendants were charged with assaulting a federal officer, in violation of 18 U.S.C. § 111, and conspiring to do so. See 420 U.S. 672-74. On direct appeal, this Court reversed the defendants’ convictions of conspiracy, reasoning that, although the substantive offense of violating Section 111 did not require the defendants to know their victim was a federal officer, a conspiracy to violate that statute did require such knowledge. See Feola, 420 U.S. at 673, 675-76. The Supreme Court, however, reversed the judgment of this Court, finding that this Court’s reasoning conflicted with the rule that, "where a substantive offense embodies only a requirement of mens rea as to each of its elements, the general federal conspiracy statute requires no more." 420 U.S. at 692. Thus, Feola not only recognized the principle that the intent requirement of a conspiracy corresponds with that of the underlying offense but enforced that principle more broadly than this Court had done.

As the Feola court itself noted, moreover, this principle was recognized in an even earlier decision of the Supreme Court. In United States v. Ingraham, 360 U.S. 672 (1959), the Supreme Court reversed a conviction for conspiracy because the evidence was insufficient to establish that the defendants acted with the intent required to commit the underlying offense: an excise tax violation. Id. at 672-73, 675. Although not necessary for its decision, the Supreme Court emphasized that the Government was not required to prove any greater level of intent than that necessary to convict the defendant of the underlying crime. As the Supreme Court stated: "There need not, of course, be proof that the conspirators were aware of the criminality of their objective." Id. at 679.

In an effort to avoid this principle and breathe life into the Powell doctrine, Cohen weaves together a number of arguments. First, Cohen attempts to distinguish Feola and this Court’s governing precedents on their facts, arguing that those cases involved conspiracies to engage in "inherently wrongful" conduct while this one involved conduct "purely innocent" on its face. (Br. 34). Second, Cohen seems to suggest that the Powell doctrine survives in the federal courts even after Feola, asserting that it has "long been the rule in several other Circuits." (Br. 36; see also Br. 23). Third, Cohen argues that, in reversing this Court’s judgment in United States v. Keegan, the Supreme Court implicitly endorsed the Powell doctrine and overruled this Court’s prior decisions rejecting that doctrine. (Br. 28-30). Finally, Cohen claims that "in cases where the subject conduct is bottomed upon otherwise innocent motivations, a more specific mens rea has been required before criminal liability may attach," and, therefore, that the Powell doctrine is in harmony with general principles of criminal liability. (Br. 35-36). These arguments are meritless.

To begin with, no case has ever suggested that the Feola’s construction of the conspiracy statute is limited to crimes that may be characterized as "inherently wrongful." To the contrary, Feola has been universally recognized as announcing a principle of general application to conspiracy charges. In United States v. Eisenberg, 596 F.2d 522 (2d Cir. 1979), for example, this Court observed that, because Feola "clearly established that [where] requisite knowledge was proved for conviction of the substantive offense, it now follows that the same knowledge is enough as well to establish the conspiracy to commit the substantive offense." 596 F.2d at 526; see also United States v. Salameh, 152 F.3d 88, 154 n. 16 (2d Cir. 1998) ("The government is not required to prove any greater knowledge of the substantive offenses that comprise the conspiracy's objectives than that required to prove the commission of the substantive offenses themselves"), cert. denied, 525 U.S. 1112 (1999); United States v. Herrera, 584 F.2d 1137, 1150 (2d Cir. 1978) (holding that the district court properly rejected defendants' proposed jury instruction that "co-conspirators must agree to violate the specific federal statutes with which they were charged;" noting that "[t]he law of conspiracy requires the same mens rea as would be required to support a conviction for a substantive violation"); United States v. Podell, 519 F.2d 144, 150 n.7 (2d Cir. 1975) (under Feola, "knowledge of illegality is not necessary for a substantive conviction . . . such knowledge is also not necessary of a conspiracy conviction").

Indeed, the Tenth Circuit applied Feola in the precise context presented here. In United States v. Blair, a sportsbook operator who took bets from Americans via toll-free calls to the Dominican Republic challenged his conviction of conspiracy to violate 1084(a), arguing that the charge required proof that he intended to break the law. The Tenth Circuit, however, swiftly rejected this claim. First, the court analyzed Section 1084(a) and concluded that a substantive violation of the statute only requires proof that the defendant knowingly engaged in the prohibited acts. 54 F.3d at 641. Applying Feola, the court then rejected the defendant’s claim that a conspiracy to violate Section 1084(a) requires a greater level of intent. The court observed that "[t]he question of whether § 371 evinces the intent of congress to require a defendant to have intentionally violated a known legal duty in order to sustain a conviction has been squarely rejected by the Supreme Court." Id. at 643. The court concluded, therefore, that "Feola is controlling and the prosecution need not prove a defendant intentionally violates a known legal duty in order to sustain a conviction under § 371 in cases where the underlying substantive offense does not impose such a requirement." Id.

In a very similar context, the First Circuit reached the same conclusion in United States v. Murray, 928 F.2d 1242 (1st Cir. 1991). Citing Feola, the First Circuit held that the charge of conspiracy to operate an illegal gambling business in violation of 18 U.S.C. § 1955 "requires the same intent as that required for a conviction for the substantive offense." Id. at 1251. Moreover, other federal cases have applied Feola in the context of conspiracies to engage in conduct far more "innocent" than running a book-making operation. In United States v. Thomas, 887 F.2d 1341 (9th Cir. 1989), for example, the Ninth Circuit upheld a defendant’s conviction of conspiracy to engage in conduct with negligent ignorance of the law. The underlying statute made it a crime to transport, receive, or acquire wildlife which the defendant should, in the exercise of due care, have known was taken in violation of state law. The Ninth Circuit, therefore, regarded the question presented on appeal as whether it is "fair to punish parties to an agreement to engage intentionally in apparently innocent conduct where the unintended result . . . is the violation of a criminal statute" in the affirmative. Id. at 1346-47. Citing Feola, the Court concluded that the intent requirement for the conspiracy charge was no different from that of the underlying offense. Id. at 1347; see also United States v. McDougal, 25 F. Supp.2d 85, 95 (N.D.N.Y. 1998) (noting that the charge of conspiracy to violate federal wildlife laws requires proof of "the requisite intent to violate the substantive offense"), aff'd mem., 216 F.3d 1074 (2d Cir. 2000) (table).

Furthermore, the Powell doctrine is not "the rule in several other Circuits." (Br. 36). As far as the Government is aware, Powell has not been applied by any Circuit Court since the 1930's and has never even been cited with approval since Feola was decided. Notably, Chief Judge Bazelon’s concurring opinion in United States v. Barker, 514 F.2d 208, 233 n. 34 (D.C. Cir. 1975) (en banc), which Cohen cites (Br. 24), was issued several days before Feola was decided. That opinion, moreover, did not refer to the Powell as the law of the D.C. Circuit or any other Circuit, and expressly noted that it had been criticized by this Court and the Supreme Court. 514 F.2d at 233 n. 34. The only other Circuit Court case decided in the last half century that Cohen cites, United States v. Previte, 648 F.2d 73, 81-82 (1st Cir. 1981), does not apply the Powell doctrine. Rather, the First Circuit noted that, while the defendant attempted to invoke the Powell doctrine, the doctrine was inapplicable by its own terms to the defendant’s conduct. Id. at 81-82. Thus, the First Circuit did not have occasion to consider whether the doctrine was viable. In discussing the defendant’s claim, moreover, the court noted Learned Hand’s strong criticism of the Powell doctrine when speaking for this Court in Mack. Id.

In addition, the Supreme Court’s various opinions in Keegan certainly did not "implicitly embrace[]" or "ostensibly accept[]" the Powell doctrine. (Br. 29). In Keegan, the defendants, members of the German-American Bund during World War II, were found guilty of conspiring to counsel evasion of the Selective Service Act by urging members of the Bund to protest the draft and challenge its legality. See 325 U.S. at 480-95. On appeal, the defendant’s argued that they counseled Bund members to engage in a lawful protest of the Selective Service Act and not to evade militate service. This Court upheld the defendant’s conviction, and the Supreme Court reversed in a 5-to-4 decision.

In the plurality opinion and the opinions of concurring justices, a majority concluded that the word "evade" contained in the Selective Service Act connoted fraudulent conduct involving "stealth," "guile," and/or "deception." Id. at 493 (statute requires avoidance of the draft "stealthily and by guile") (plurality opinion); id. at 500 (noting majority’s acceptance of defendants’ position "that ‘evade’ connotes conduct which is fraudulent or characterized by artifice or craft") (dissenting opinion). Thus, the majority rul