## Facts

- Lesly (Lesley) Cohen was alleged to be engaged in the business of betting or wagering in Las Vegas, Nevada.
- The government charged Cohen with two counts under 18 U.S.C. § 1084(a) for knowingly using interstate telephone facilities between Las Vegas, Nevada, and San Francisco, California, in connection with sports wagering.
- Count I alleged that, from September 16 to December 15, 1962, Cohen used interstate telephone communications to transmit information assisting in placing a wager on a San Francisco 49ers football game.
- As particularized, Count I encompassed multiple calls involving two bettors, Raymond Syufy and Adolph Schuman.
- Count II alleged a September 25, 1962 call in which Syufy placed a wager on the Sonny Liston–Floyd Patterson boxing match.
- At trial, Syufy could not identify the voice of the person he spoke with in Las Vegas, raising a dispute about whether Cohen was the recipient of certain calls.
- A jury convicted Cohen on both counts, and he appealed, challenging the indictment and trial rulings.

## Issues

1. Whether Count I was duplicitous because it encompassed multiple calls and bettors over a period of time.
2. Whether the evidence on Count I was sufficient to prove Cohen’s participation and identity where a key caller could not identify Cohen’s voice.
3. Whether the trial court erred by instructing the jury on a rebuttable presumption concerning Cohen’s knowledge of the illegality of using interstate facilities to transmit wagering information.

## Decision

- The Ninth Circuit affirmed Cohen’s convictions on both counts.
- The court held Count I was not duplicitous because it charged a single offense defined by the points, period, and wagering purpose alleged, even though the proof involved a series of calls.
- The court held the evidence was sufficient for the jury to find Cohen was the recipient of the calls based on circumstantial proof despite the lack of voice identification.
- The court upheld the challenged jury instruction on knowledge and rejected the argument that the statute’s relative newness barred the instruction.

## Legal Principles

- Under 18 U.S.C. § 1084(a), a series of related interstate calls made for the same wagering purpose over a limited period may be charged as a single offense without rendering the count duplicitous.
- An indictment is not duplicitous merely because the government’s particulars and proof describe multiple acts that could have been charged as separate violations.
- Identity and participation in telephone-based Wire Act offenses may be established by circumstantial evidence; direct voice identification is not required.
- A jury instruction using a rebuttable presumption regarding knowledge does not require reversal where, read as a whole, it does not shift the government’s burden to prove the offense’s required mens rea beyond a reasonable doubt.

## Conclusion

The Ninth Circuit upheld Wire Act convictions based on interstate wagering calls, concluding that one count may encompass multiple related calls without duplicity, that circumstantial evidence can sufficiently establish the defendant’s identity as the caller or recipient, and that the challenged knowledge instruction did not warrant reversal.


Cohen v. United States, 378 F.2d 751 (9th Cir. 1967)