DOJ Continues Fight Against New Hampshire Wire Act Assertions
When last US District Court Judge Paul Barbadoro spoke regarding the Wire Act, the oral arguments phase of the proceedings had concluded. Attorneys for the defendants (US Attorney General William Barr and the US Department of Justice) and the plaintiffs (New Hampshire Lottery Commission and NeoPollard Interactive) had made their statements to the judge and fielded questions.
At the end of the hearing, Barbadoro ordered the DOJ to issue another memo to further explain its Wire Act interpretation with respect to its assertion that New Hampshire was not entitled to a declaratory judgment in the case. There was a two-week deadline set by the judge, and the DOJ did file the document memo by April 25.
The DOJ took the opportunity to argue against a declaratory judgment, but it also stated that the state lottery, as well as its employees and vendors, were not immune from prosecution under the Wire Act.
Meanwhile, the DOJ noted that it is still reviewing the applicability of the new Wire Act memo from November 2018 to state lotteries and had not made that decision yet.
The 12-page supplemental memo was filed by the defendants on April 25 by Deputy Assistant AG Hashim Mooppan, Assistant AG Counsel Matthew Glover, Federal Programs Branch Assistant Director John Tyler, and Federal Programs Branch Trial Attorney Steven Myers.
Essentially, the memo reminded the court that the DOJ is still reviewing “whether the Wire Act applies to State lotteries and their vendors” but assured that it would not prosecute any state lotteries or vendors while the review is underway. Plaintiffs, they said, have not pointed to one example of the DOJ prosecuting a state lottery, its employees or vendors under the Wire Act.
To the DOJ, that means the court lacks jurisdiction to resolve the Wire Act’s scope at this time, as there is “no present credible threat of prosecution.”
And with that, the DOJ requested the case be dismissed for lack of standing.
The totality of the argument was stated as:
“The Wire Act applies to ‘(w)hoever being engaged in the business of betting or wagering knowingly uses a wire communication facility’ for certain prohibited purposes. Under the Dictionary Act, ‘unless the context indicates otherwise,’ the terms ‘person’ and ‘whoever’ are defined to ‘include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.’ The Lottery Commission’s arguments fail to demonstrate that it, its employees, or its vendors fall outside this term in this context.”
And I find it ironic that the opinion says that we need to rely on the plan language of the Wire Act but earlier says that the DOJ in previous congressional hearings “acknowledged some uncertainty concerning the scope of the Wire Act.” Ambiguous opinion?
— Jennifer Roberts (@JRoVegas) April 26, 2019
The focus on the term “whoever” in the DOJ’s latest court memo comes from some of the oral arguments in the April 11 proceeding. The judge had requested that the New Hampshire Lottery Commission submit a brief regarding the term and to whom it appears to apply via the Wire Act.
The wording in the Wire Act states that prohibited activities apply to “whoever” is “engaged in the business of betting or wagering” from “knowingly us(ing) a wire communication facility to transmit gambling information.” But the term “whoever” is not defined.
The commission did file that response on April 18 with its own 12-page memo, asserting that the court should declare that the “NHLC and its officials, employees, and private vendors and agents do not constitute ‘whoever’ under 18 U.S.C. § 1084 when working to carry out the official functions of the NHLC for the State of New Hampshire pursuant to valid State law.”
Essentially, the DOJ is claiming the term is all-inclusive, and the NHLC is requesting that the court declare the opposite.
I likened it to pointing a gun at someone and telling them, "I'm currently reviewing if I'm going to shoot you, so at the moment there's no credible threat on your life."
— Steve Ruddock (@SteveRuddock) April 26, 2019
Expect More Soon
Since the DOJ was the last to file a memo, it seems that the NHLC will be able to file a response. At that point, Barbadoro will take everything under advisement and likely begin writing a decision.
Barbadoro is likely to render a final ruling sometime in May. This will also fit into the timeline established by the DOJ itself, as Deputy Attorney General Rod Rosenstein delayed implementation of the new Wire Act interpretation until mid-June. And considering the DOJ is reviewing its own interpretation of the Wire Act, there are quite a few pieces that will need to come together within the coming month.
Even so, the case could easily be pushed forward per Barbadoro’s own words during oral arguments:
“I have a strong feeling that however I resolve this case, or however the First Circuit resolves this case, it is likely going to be resolved by the US Supreme Court either way.”
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