This evening, as is often my custom, I strolled into the Round Robin Bar, intent on winding up a hectic week with a relaxing drink or two. There I found Talbot, Hornsby and Finkelstein, three attorneys at the Department of Justice, getting righteously sloshed.
“Collins!” Talbot called out. “Come on over, and make yourself comfortable, you overpriced S.O.B. consultant!”
“What’s the occasion?” I asked as I sat down with a glass of Macallan’s 18 on the rocks. “You guys look like you all just collected on a long shot at Pimlico.”
My comment precipitated a gale of laughter totally out of proportion to any intrinsic wit it might have possessed. “You might say that,” Finkelstein guffawed. “We certainly just won a big one for American justice, that’s for sure!”
“Oh, really?” I responded, half curious and half skeptical. “What, exactly, have you three gentleman accomplished, then?”
“This week,” Hornsby bragged, “we froze over thirty-three million dollars in on-line poker winnings.”
“That’s right,” Talbot elaborated. “Over twenty-seven thousand degenerate gamblers were expecting to get paid their ill-gotten gains by four different offshore Internet gambling sites, but we made sure their checks bounced higher than the national debt!”
“The sites all use one of two companies for payments to on-line poker winners,” Finkelstein explained.
“Either Allied Systems or another company, called Account Services,” Talbot interjected. “And that turned out to be their Achilles’ heel, you see, because those two companies, in turn, keep most of the poker winnings at just four banks: Citibank, Wells Fargo, Goldwater Bank and Alliance Bank of Arizona.”
“And on Tuesday,” Hornsby proudly proclaimed, “we told all of those banks to freeze every red cent in those two companies’ disbursement accounts!”
“Actually,” Finkelstein corrected, “we did get some static from Wells Fargo. They started quibbling about whether Justice had provided what they called ‘valid instructions to seize funds,’ and then they tried to get into a [expletive] contest with us about whether we ordered them to ‘seize’ or ‘freeze.’ In the end, though, they went along with it, just like the other banks did.”
“But why?” My question jolted them into a moment of stunned silence.
“Be.. because… ah…” Hornsby stuttered, obviously gobsmacked.
“Because Internet on-line poker Web sites are involved in money laundering transactions and illegal gambling offenses,” Finkelstein propounded, jumping to Hornsby’s rescue.
“And the thirty-three million bucks is the proceeds of that criminal activity,” Talbot insisted. “Furthermore, the United States federal government has definite probable cause that the gambling payments of US residents have been directed to offshore illegal Internet gambling businesses.”
“Uh, yeah,” Hornsby recovered, “that’s right. And anyway, the federal government has the authority to seize proceeds of specified unlawful activities without a warrant under exigent circumstances, which is exactly what the circumstances were.”
“Exigent?” I repeated, seeking verification of what I had just heard.
“Correct,” Hornsby nodded confidently, “that’s it – ‘exigent.’”
“Seems to me,” I remarked, “that I recall the definition of ‘exigent’ as being something like ‘requiring immediate aid or action.’”
“So,” Finkelstein shrugged, “what of it?”
“Well,” I observed, “here you have these Web sites that people visit to play poker, and they’ve been at it for years and during that extended period of time, the federal government didn’t freeze anybody’s winnings, did they?”
“No,” Talbot conceded, “those Web sites hosted hundreds of thousands of poker games for years and years.”
“And furthermore,” I pressed, “the federal law prohibiting banks from accepting credit cards, checks or electronic funds transfers to settle Internet wagers has been on the books since 2006, hasn’t it?”
“Yes,” Talbot admitted with a sigh, “it has. And I can see where you’re going with that, Collins. So, no, the federal government did not, in fact, freeze anybody’s poker winnings until this week.”
“Well then,” I requested in my best Socratic tone, “what aspects of the world changed so drastically in the last ten or fifteen days that suddenly, the circumstances became, as you say, ‘exigent?’ I presume, what with all the lawyers at the Justice Department, if the federal government is going to claim ‘exigent circumstances,’ for an action it takes, then somebody, somewhere at DOJ must have written up at least couple of paragraphs explaining what those exigent circumstances are, which suddenly and precipitously necessitated this drastic act on the federal government’s part. Therefore, I would ask, what, in fact, is that explanation?”
The three attorneys engaged in a quick exchange of bewildered looks, after which Talbot shot me a withering glare and said, “Nobody likes a wiseacre, Collins.”
“Truer words were never spoken,” I agreed, hoisting my glass of single malt, sherry barrel aged Highland scotch in a friendly manner. “No offense intended.”
“None taken,” Hornsby huffed. “Besides,” he continued, “we have obtained a federal grand jury subpoena for all of Allied Systems’ communications, financial transactions, corporate files, bank account information and processing services records pertaining to the relationship between that company and those Internet gambling operations.”
“Really?” I remarked. “Was that before or after your federal grand jury indicted the ham sandwich?”
“After,” Finkelstein replied. “It was getting very close to lunch, so we decided to ask them to indict a ham sandwich first.”
“Juries think with their stomachs, you know,” Talbot helpfully offered. “Any federal prosecutor worth his salt will tell you that.”
“Absolutely,” Hornsby chimed in, nodding sagely.
“Of course,” I noted, “there are a number of legal precedents in various US jurisdictions that distinguish poker from, say, betting on sports, playing roulette, or jerking a virtual one-armed bandit over a TCP/IP connection. Many courts have held that poker is a game of skill, not chance, while others have decided that since poker involves transactions between individuals, instead of transactions between an individual and a casino, it’s substantially different from other forms of gaming. And I believe that the federal government’s basis for freezing the accounts in the first place is the Federal Wire Act of 1961, isn’t it?”
“Yeah,” Talbot shrugged indifferently. “So what?”
“So,” I pointed out, “seems to me, if I remember accurately, the US Fifth Circuit Court of Appeals has already ruled that the Wire Act only applies to sports betting.”
“Collins,” Talbot demanded, “don’t you realize that if you engage in that kind of thinking, then the terrorists win?”
“Terrorists?” I pondered, taking another sip of Macallan’s. “How did they get into this?”
“It’s simple,” Finkelstein admonished, clearly a bit miffed at what he apparently thought was deliberate obtuseness on my part. “Internet poker facilitates money laundering. Money laundering comes from the drug and arms trades. Terrorists traffic in arms and drugs. Therefore, just like snorting coke at a nightclub, or buying a .44 magnum at a gun show, Internet poker supports terrorism.”
“My goodness,” I relented, “you certainly can’t argue with a carefully constructed, extensively documented, flawless and iron-clad syllogism like that. Why, I’m sure if you just tell the public that shutting down Internet poker is vital to defeating Al-Qaeda…”
“And capturing Osama bin Laden,” Finkelstein added.
“Of course,” I assented. “And, no doubt, many other extremely important things like that, too. Well then, given those considerations, how could anyone possibly fail to agree that your ends are so overwhelmingly crucial to the preservation of home, mother, apple pie and Old Glory that small discrepancies in your means, such as lack of due process, should be overlooked in the grand scheme of things in order to serve the greater good?”
“Exactly!” Hornsby trumpeted while gesturing vigorously with his Maker’s Mark mint julep. “Screw that due process [expletive]! And that Fourth Amendment [expletive], too!”
“And all that bellyaching,” Talbot interjected, “about the Fifth, Six, Seventh and Fourteenth Amendments! Ditch that [expletive] while you’re at it! Why should someone like me have to work late because of what the [expletive] United States Constitution says?”
“And all that [expletive] complaining they’re doing about unlawful seizure of private property,” Finkelstein sneered. “I mean really, as if it wasn’t enough, with those crybabies citing every paragraph of the Constitution they can possibly drag into the argument, on top of that, there’s all this [expletive] whining about common law! Queen Anne’s Gambling Debts Proclamation of 1710, my [expletive]!”
“It seems to me it ought to be obvious,” Talbot pontificated, “that the government has no more important function than getting its hands on people’s potentially undeclared income.”
“Hear, hear!” Finkelstein cheered, waving back at Talbot with his Stoli and Kahlua black Russian. “It’s high time they realized it, too!”
“Does that mean,” I probed, “that DOJ’s next crusade is going to be chasing down all those billions of undeclared income floating around in America’s extensive underground economy?”
“Nah,” Talbot muttered. “That would be, you know…”
“Too damn much work,” Hornsby completed.
“Yeah,” Finkelstein amplified, “it’s not like prostitutes, off-the-books illegal alien sweatshop workers, gypsy cab drivers, unlicensed street vendors or members of Mormon barter clubs are anywhere near as easy to find as Internet gambling sites that host poker games.”
“Anyway,” Hornsby asserted, “I think we’re doing those Internet poker players a favor. Maybe some of them will stop and think about how gambling is ruining their lives.”
“Not only that,” Talbot grandly embellished, “but since they’re playing on the Internet, it’s probably totally rigged against them anyway!”
“Actually,” I corrected, “the average Internet gambling site has better security and user authentication than the average Internet banking site, and, more importantly, there’s no incentive for the operators to cheat individual poker players, since the sites make their money by claiming a fixed percentage of every pot. In addition, the Internet has plenty of sophisticated software available that poker players can use to determine if they’re being cheated, and the site operators know that.”
“That’s completely irrelevant,” Hornsby insisted. “The plain fact remains, Collins – poker is gambling, and gambling is bad!”
“Not to mention,” Finkelstein boldly declared, “that the public is, by and large, way too stupid to know what’s good for them and what isn’t!”
“Fortunately,” Talbot confidently stated, “they have us to make sure they don’t do bad things.”
“But, I’m sure you must realize,” I speculated, “if you guys succeed in this – won’t that just encourage on-line poker players and the Web site poker operators to use foreign banks instead of, say, Citibank or Wells Fargo?”
“Oh, we’ve already thought about that,” Finkelstein chortled. “Then we seize the poker players’ houses and cars as ‘proceeds of an illegal enterprise,’ arrest them…”
“Strip search them…” Hornsby snickered, “full body cavity, of course…”
“Lock them up without bail under the PATRIOT Act…” Talbot winked.
“Take their children away from them…” Hornsby chuckled.
“And prosecute them under the RICO statutes,” Finkelstein concluded with a self-satisfied grin.
“So you think,” I ventured, “that taking their homes, cars and freedom, destroying their families, physically traumatizing them and treating them like terrorists or Mafiosi is going to screw up Internet poker players’ lives less than they themselves will screw their lives up by playing poker on the Internet?”
“Sure,” Talbot affirmed. “Doesn’t doing that to pot heads screw them up less than smoking reefer?”
“Yeah,” Hornsby expounded, “and doesn’t surrounding people’s homes with ATF agents and killing them in a hail of gunfire do them one hell of a lot more good than if we just left them up there in Montana or Idaho or whatever other [expletive] hole out in the boondocks they’re squatting in, and let them defy our authority to barge in and make everybody lie down on the floor whenever we want to, and, what’s even worse, continue to have cooler, more impressive weapons than we do?”
“It seems,” I surrendered, “that you gentlemen have yet again presented me with another totally irrefutable, completely logical argument. Still, given the legal precedents involved, though, do you actually think that the federal government will prevail in this matter?”
“That’s a gamble,” Talbot assured me, “the Justice Department is prepared to take.”