Reconsidering Whether the Wire Act Applies to Non-Sports Gambling ( 2018 )

(Slip Opinion)
Reconsidering Whether the Wire Act
Applies to Non-Sports Gambling
This Office concluded in 2011 that the prohibitions of the Wire Act in 18 U.S.C. § 1084(a)
are limited to sports gambling. Having been asked to reconsider, we now conclude that
the statutory prohibitions are not uniformly limited to gambling on sporting events or
contests. Only the second prohibition of the first clause of section 1084(a), which
criminalizes transmitting “information assisting in the placing of bets or wagers on any
sporting event or contest,” is so limited. The other prohibitions apply to non-sports-
related betting or wagering that satisfy the other elements of section 1084(a).
The 2006 enactment of the Unlawful Internet Gambling Enforcement Act did not alter the
scope of section 1084(a).
November 2, 2018
MEMORANDUM OPINION FOR THE
ACTING ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
In 2010, the Criminal Division asked whether the Wire Act, 18 U.S.C.
§ 1084, prohibits New York and Illinois from using the Internet and out-
of-state transaction processors to sell lottery tickets to in-state adults. That
request arose from a potential conflict between the Wire Act and the
Unlawful Internet Gambling Enforcement Act, 31 U.S.C. §§ 5361–5367
(“UIGEA”). In the Criminal Division’s view, the Wire Act prohibits such
transactions, but UIGEA might permit the interstate routing of certain
state lottery transactions.
We answered that request by challenging its underlying premise: that
the Wire Act prohibits transmissions unrelated to sports gambling. Instead
of analyzing the interplay between the Wire Act and UIGEA, we conclud-
ed, more broadly, that the prohibitions of the Wire Act are limited to
sports gambling and thus do not apply to state lotteries at all. See Whether
Proposals by Illinois and New York to Use the Internet and Out-of-State
Transaction Processors to Sell Lottery Tickets to In-State Adults Violate
the Wire Act, 35 Op. O.L.C. __ (2011) (“2011 Opinion”). Our opinion
departed from the position of the Department of Justice, which had suc-
cessfully brought Wire Act prosecutions for offenses not involving sports
gambling.
The Criminal Division has asked us to reconsider the 2011 Opinion’s
conclusion that the Wire Act is limited to sports gambling. See Memoran-
1
Opinions of the Office of Legal Counsel in Volume 42
dum for Curtis E. Gannon, Acting Assistant Attorney General, Office of
Legal Counsel, from Kenneth A. Blanco, Acting Assistant Attorney
General, Criminal Division (May 26, 2017). 1 We do not lightly depart
from our precedents, and we have given the views expressed in our prior
opinion careful and respectful consideration. Based upon the plain lan-
guage of the statute, however, we reach a different result. While the Wire
Act is not a model of artful drafting, we conclude that the words of the
statute are sufficiently clear and that all but one of its prohibitions sweep
beyond sports gambling. We further conclude that that the 2006 enact-
ment of UIGEA did not alter the scope of the Wire Act.
I.
The Wire Act prohibits persons involved in the gambling business from
transmitting several types of wagering-related communications over the
wires. The prohibitions, located at 18 U.S.C. § 1084, were originally
enacted in 1961. 2 Section 1084(a) sets them out:
Whoever being engaged in the business of betting or wagering
knowingly uses a wire communication facility for the transmission
in interstate or foreign commerce of bets or wagers or information
assisting in the placing of bets or wagers on any sporting event or
contest, or for the transmission of a wire communication which enti-
tles the recipient to receive money or credit as a result of bets or wa-
gers, or for information assisting in the placing of bets or wagers,
1 We address this opinion to John Cronan, as the Acting Assistant Attorney General for
the Criminal Division, because Assistant Attorney General Brian Benczkowski is recused
from this matter.
2 Pub. L. No. 87-216, § 2, 75 Stat. 491. The provision has been amended three times,
although none of those amendments is material to our analysis. See Anti-Drug Abuse Act
of 1988, Pub. L. No. 100-690, § 7024, 102 Stat. 4181, 4397 (adding section 1084(e),
which defines “State”; making conforming amendments; and adding the term “foreign
country” to section 1084(b), so that the Wire Act now includes an exception for the
transmission of information assisting in the placing of bets or wagers on a sporting event
or contest from a state or “foreign country” where such betting is legal into a state or
“foreign country” in which such betting is also legal); Crime Control Act of 1990, Pub. L.
No. 101-647, § 1205(g), 104 Stat. 4789, 4831 (amending the definition of “State” in
section 1084(e)); Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, § 330016(1)(L), 108 Stat. 1796, 2147 (altering the statutory penalty in section
1084).
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Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
shall be fined under this title or imprisoned not more than two years,
or both.
Section 1084(a) consists of two general clauses, each of which prohibits
two kinds of wire transmissions, creating four prohibitions in total. The
first clause bars anyone in the gambling business from knowingly using a
wire communication facility to transmit “bets or wagers” or “information
assisting in the placing of bets or wagers on any sporting event or con-
test.” Id. 3 The second clause bars any such person from transmitting wire
communications that entitle the recipient to “receive money or credit”
either “as a result of bets or wagers” or “for information assisting in the
placing of bets or wagers.” Id. 4
The Wire Act’s interpretive difficulties arise from the phrase “on any
sporting event or contest,” which appears immediately after the second
prohibition in the first clause. Those words narrow the prohibition on
transmitting “information assisting in the placing of bets or wagers” to
bets or wagers “on a sporting event or contest.” That phrase is not other-
wise repeated in section 1084(a). The other three prohibitions thus appear
to be naturally read to apply to wire transmissions involving all forms of
gambling, not just “bets or wagers on any sporting event or contest.” But
if that reading is correct, our 2011 Opinion asked, then why would Con-
gress, “having forbidden the transmission of all kinds of bets or wagers
. . . prohibit only the transmission of information assisting in bets or
wagers concerning sports”? 35 Op. O.L.C. __, at *5. Why permit trans-
missions of information that assists gambling on non-sporting events, but
then prohibit transmissions “entitling the recipient to receive money” for
3 The phrase “wire communication facility” is defined to include “any and all instru-
mentalities, personnel, and services (among other things, the receipt, forwarding, or
delivery of communications) used or useful in the transmission of writings, signs, pic-
tures, and sounds of all kinds by aid of wire, cable, or other like connection between the
points of origin and reception of such transmission.” 18 U.S.C. § 1081.
4 As our 2011 Opinion explained, the second clause prohibits “the transmission of a
wire communication which entitles the recipient to receive money or credit ” either “as a
result of bets or wagers[] or for information assisting in the placing of bets or wagers.”
35 Op. O.L.C. __, at *4 n.5 (emphases and alterations in original). Reading the second
clause to prohibit “the transmission of a wire communication which entitles the recipient
to receive money or credit as a result of bets or wagers” or “the transmission of a wire
communication . . . for information assisting in the placing of bets or wagers” would be
awkward and would duplicate the second prohibition, which covers “information assisting
in the placing of bets or wagers on any sporting event or contest.”
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Opinions of the Office of Legal Counsel in Volume 42
providing information that assists “in the placing of those lawfully-
transmitted bets”? Id. at *8. In short, why would Congress have limited
just one of the four prohibitions to sports gambling?
Absent any obvious answer to these questions, our 2011 Opinion con-
cluded that the statutory text was ambiguous, and that the “more logical
result” was to read section 1084(a)’s prohibitions as parallel in scope and
therefore as all limited to sports gambling. Id. at *5. In so doing, we
recognized that our reading of the statute departed from that of the Crimi-
nal Division and of some courts that had addressed the statute. See id.
at *3. Several district courts had upheld prosecutions involving non-sports
gambling, reasoning that the limitation to “sporting event or contest” did
not apply to all of section 1084(a)’s prohibitions. 5 On the other hand, the
Fifth Circuit had affirmed a district court opinion that found that the
“plain reading of the statutory language clearly requires that the object of
the gambling be a sporting event or contest.” In re Mastercard Int’l, Inc.,
Internet Gambling Litig., 132 F. Supp. 2d 468, 480 (E.D. La. 2001), aff ’d,
313 F.3d 257 (5th Cir. 2001). 6
Those prosecutions, of course, were brought by the Department of Jus-
tice. In requesting our opinion, the Criminal Division had advised that
“[t]he Department has uniformly taken the position that the Wire Act is
not limited to sports wagering and can be applied to other forms of inter-
state gambling[.]” Memorandum for David Barron, Acting Assistant
Attorney General, Office of Legal Counsel, Department of Justice, from
Lanny A. Breuer, Assistant Attorney General, Criminal Division, De-
partment of Justice (July 12, 2010). In the years before our opinion, the
5 See United States v. Lombardo, 639 F. Supp. 2d 1271, 1281 (D. Utah. 2007) (holding
that the “sporting event or contest” qualifier does not apply to section 1084(a)’s second
clause; noting that this conclusion “aligns with the Tenth Circuit’s Criminal Pattern Jury
Instructions”); Report and Recommendation of United States Magistrate Judge Regarding
Gary Kaplan’s Motion to Dismiss Counts 3–12, at 4–7, United States v. Kaplan, No. 06-
CR-337CEJ-2 (E.D. Mo. Mar. 20, 2008) (concluding that the “sporting event or contest”
qualifier applies only to the second prohibition in section 1084(a)’s first clause); see also
United States v. Ross, No. 98 CR. 1174-1 (KMV), 1999 WL 782749, at *2 (S.D.N.Y.
Sept. 16, 1999) (suggesting that the term “sporting event or contest” modifies only the
second prohibition in section 1084(a)’s first clause); Vacco v. World Interactive Gaming
Corp., 714 N.Y.S.2d 844, 847, 851–52 (N.Y. Sup. Ct. 1999) (suggesting same).
6 Since our 2011 Opinion, the First Circuit has observed in dictum that the Wire Act is
limited to betting and wagering on “any sporting event or context.” United States v.
Lyons, 740 F.3d 702, 718 (1st Cir. 2014).
4
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
Department had advanced that position in court and before Congress. 7
And on several prior occasions, the Criminal Division had prosecuted
defendants whose wire communications involved non-sports gambling,
including a 1971 prosecution of “a business enterprise involving gambling
in the form of numbers writing.” United States v. Manetti, 323 F. Supp.
683, 687 (D. Del. 1971); see also United States v. Vinaithong, No. 97-
6328, 1999 WL 561531, at *1 (10th Cir. Apr. 9, 1999) (order and judg-
ment affirming the sentences of defendants who pleaded guilty under the
Wire Act for transmission of “gambling information” related to a “gam-
bling enterprise which has been referred to as a mirror lottery”). 8 In two
congressional hearings in 1998 and 2000, the Criminal Division had
acknowledged some uncertainty concerning the scope of the Wire Act and
urged Congress to amend the statute to confirm its application to non-
sports gambling. 9 But our 2011 Opinion represented a marked shift in
7 See Letter for Dennis K. Neilander, Chairman, Nevada Gaming Control Board, from
Michael Chertoff, Acting Assistant Attorney General, Criminal Division (Aug. 23, 2002)
(“[T]he Department of Justice believes that federal law prohibits gambling over the Inter-
net, including casino-style gambling.”); Unlawful Internet Gambling Funding Prohibition
Act and the Internet Gambling Licensing and Regulation Commission Act: Hearing
Before the Subcomm. on Crime, Terrorism, & Homeland Security of the H. Comm. on the
Judiciary, 108th Cong. 70 (2003) (response of John G. Malcolm, Deputy Assistant
Attorney General, Criminal Division, to questions for written submission from Rep.
Goodlatte) (“The Department of Justice has long held, and continues to hold, the position
that 18 U.S.C. § 1084 applies to all types of gambling, including casino-style gambling,
not just sports betting.”); Letter for Carolyn Adams, Superintendent, Illinois Lottery, from
Laura H. Parsky, Deputy Assistant Attorney General, Criminal Division (May 13, 2005)
(explaining that if Illinois permitted online purchase of state lottery tickets it would be in
violation of federal law—so long as the “transmission [were] routed outside of the state”);
Establishing Consistent Enforcement Policies in the Context of Online Wagers: Hearing
Before the H. Comm. on the Judiciary, 110th Cong. 13 (2007) (statement of Catherine
Hanaway, U.S. Attorney) (“It is the Department’s view, and that of at least one federal
court (the E.D. Mo.), that [the Wire Act] applies to both sporting events and other forms
of gambling, and that it also applies to those who send or receive bets in interstate or
foreign commerce, even if it is legal to place or receive bets in both the sending jurisdic-
tion and the receiving jurisdiction.”).
8 The Criminal Division advises that the Department secured at least seventeen Wire
Act convictions between Fiscal Years 2005 and 2011 that involved non-sports betting.
9 Compare, e.g., Internet Gambling Prohibition Act of 1997: Hearings on H.R. 2380
Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 105th Cong. 78 (1998)
(statement of Kevin DiGregory, Deputy Assistant Attorney General, Criminal Division)
(“That being said, [section 1084] currently prohibits someone in the business of betting
and wagering from using a wire communication facility for the transmission in interstate
5
Opinions of the Office of Legal Counsel in Volume 42
how the Department interpreted the statute, including with respect to
some successful prosecutions.
II.
The Criminal Division has asked us to reconsider our 2011 Opinion.
We do not lightly depart from our precedent. But having reconsidered our
conclusion, we now reach a different result. The 2011 Opinion, in our
view, incorrectly interpreted the limitation “on any sporting event or
contest” (the “sports-gambling modifier”) to apply beyond the second
prohibition that it directly follows: the prohibition on transmitting “infor-
mation assisting in the placing of bets or wagers.”
A.
Section 1084(a)’s first clause makes it a crime to use the wires “for the
transmission in interstate or foreign commerce of bets or wagers or infor-
mation assisting in the placing of bets or wagers on any sporting event or
contest.” Our 2011 Opinion concluded that this clause was ambiguous on
whether the sports-gambling modifier applies to both prohibitions in the
first clause. 35 Op. O.L.C. __, at *5. We reasoned that “[t]he text itself
or foreign commerce of bets or wagers on any sporting event or contest. . . . [T]he statute
may relate only to sports betting and not to the type of real-time, interactive gambling that
the Internet now makes possible for the first time. Therefore, we generally support the
idea of amending the Federal gambling statutes by clarifying that the Wire Communica-
tions Act applies to interactive casino betting[.]”); Internet Gambling Prohibition Act of
1999: Hearing Before the Subcomm on Telecommunications, Trade, & Consumer Protec-
tion of the H. Comm. on Commerce, 106th Cong. 35 (2000) (statement of Kevin DiGrego-
ry, Deputy Assistant Attorney General, Criminal Division) (“We urge you to consider a
proposal that we have made, and I will highlight what that proposal would do. It would
clarify that [section] 1084 applies to all betting and not just betting on sporting events or
contests. . . . Our proposed amendment, Mr. Chairman and members of the committee,
would not prohibit any gambling currently permitted nor would our proposal permit
anything that is currently prohibited.”), with id. at 88 (answering question from Rep.
Tauzin and explaining that “[s]ection 1084 applies to sports betting but not to contests
like a lottery”). In a 1962 speech shortly following the passage of the Wire Act, then-
Assistant Attorney General for the Office of Legal Counsel Nicholas deB. Katzenbach
explained that, under the Wire Act, “gamblers, bookies and related members of their
fraternity are barred from using the phones for the interstate transmission of wagers on
sporting events or contests,” without addressing whether the statute was limited to such
wagering. Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal Coun-
sel, Address on Federal and Local Cooperation in Fighting Crime (Jan. 25, 1962).
6
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
can be read either way” because section 1084(a) lacks “a comma after the
first reference to ‘bets or wagers’”; we thought that such a comma would
have made it “plausible” that the first prohibition in the first clause was
not limited to sports-based gambling. Id. “By the same token,” we contin-
ued, “the text does not contain commas after each reference to ‘bets or
wagers,’” which we would have considered evidence that the sports-
gambling modifier qualified each prohibition in the first clause. In light of
this perceived ambiguity, we interpreted both prohibitions in the first
clause as confined to sports gambling because that reading “produce[d]
the more logical result” and was supported by the legislative history. Id. at
*5–7.
We do not believe that the first clause is ambiguous, however. “It is
well established that ‘when the statute’s language is plain, the sole func-
tion of the courts—at least where the disposition required by the text is
not absurd—is to enforce it according to its terms.’” Lamie v. U.S. Trus-
tee, 540 U.S. 526, 534 (2004) (quoting Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); see also Sebelius v.
Cloer, 569 U.S. 369, 381 (2013) (same). There was no need for Congress
to add a comma to clarify that the sports-gambling modifier applies only
to the second prohibition in the first clause, because the grammar of the
provision itself accomplishes that task. The sports-gambling modifier
comes at the end of a complex modifier that defines the type of “infor-
mation” reached by section 1084(a)’s second prohibition: “information
assisting in the placing of bets or wagers on any sporting event or con-
test.” 18 U.S.C. § 1084(a) (emphasis added). Since “assisting in the plac-
ing of bets or wagers” modifies only the prohibition on transmitting
information, it follows that “on any sporting event or contest”—a compo-
nent of the same modifier—is similarly limited.
Traditional canons of statutory construction confirm that conclusion. In
construing the reach of modifiers like “on any sporting event or contest,”
the default rule is that “‘a limiting clause or phrase . . . should ordinarily
be read as modifying only the noun or phrase that it immediately fol-
lows.’” Lockhart v. United States, 136 S. Ct. 958, 962 (2016) (quoting
Barnhart v. Thomas, 540 U.S. 20, 26 (2003)); see also Barnhart, 540 U.S.
at 26 (“Referential and qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent”) (quoting 2A Norman
J. Singer, Statutes and Statutory Construction § 47.33, at 369 (6th rev. ed.
2000)); United States v. Loyd, 886 F.3d 686, 688 (8th Cir. 2018) (describ-
ing the rule as “a rebuttable presumption in statutory interpretation”); In
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Opinions of the Office of Legal Counsel in Volume 42
re Sanders, 551 F.3d 397, 399 (6th Cir. 2008) (similar). That rule, the
“last-antecedent rule,” “reflects the basic intuition that when a modifier
appears at the end of a list, it is easier to apply that modifier only to the
item directly before it.” Lockhart, 136 S. Ct. at 963; see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 152 (2012) (“Scalia & Garner”). 10
In Lockhart, for example, the Court applied this rule to a statute that
subjected a criminal defendant to increased penalties if the defendant had
“‘a prior conviction . . . under the laws of any State relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a minor
or ward.’” 136 S. Ct. at 962 (quoting 18 U.S.C. § 2252(b)(2)). The Court
held that the phrase “involving a minor or ward” modified only the one
item on this list that immediately preceded it. Id. at 961. Similarly, in
Barnhart, the Court considered the meaning of a statutory reference to
circumstances in which someone “‘is not only unable to do his previous
work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the
national economy.’” 540 U.S. at 23 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Court applied the rule of the last antecedent to conclude that the
qualifier “which exists in the national economy” could reasonably be read
to modify only its closest referent: “any other kind of substantial gainful
work.” Id. at 26. And in Loyd, the Eighth Circuit applied the last-
antecedent rule to a statute that made a mandatory minimum sentence
applicable to anyone with a prior conviction under enumerated federal
laws “‘or under the laws of any State relating to’” certain types of sexual
misconduct. 886 F.3d at 687 (quoting 18 U.S.C. § 2251(e)). The court
held that the sexual misconduct language “modifies only the phrase that
immediately precedes it: ‘the laws of any State.’” Id. at 688 (quoting 18
U.S.C. § 2251(e)). As in the examples discussed in those cases, the Wire
Act’s reference to gambling “on any sporting event or contest” modifies
only the phrase it immediately follows: “information assisting in the
placing of bets or wagers.”
We have considered whether the series-qualifier rule might rebut the
last-antecedent presumption. The series-qualifier rule provides that a
modifying phrase used to qualify one element of a list of nouns or verbs
10 Courts commonly refer to this canon as the “last-antecedent rule,” although the more
precise term where, as here, the modifier is an adjectival or adverbial phrase is the
“nearest reasonable referent” canon. Scalia & Garner at 152–53.
8
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
may sweep beyond the nearest referent if the list “contain[s] items that
readers are used to seeing listed together or a concluding modifier that
readers are accustomed to applying to each of them.” Lockhart, 136 S. Ct.
at 963. Importantly, that principle is generally limited to lists of items that
are “simple and parallel without unexpected internal modifiers or struc-
ture.” Id.; see Scalia & Garner at 147 (canon applies where “there is a
straightforward, parallel construction that involves all nouns or verbs in a
series”). The series-qualifier rule thus may support applying a modifier
beyond its nearest referent and across multiple, simple, parallel phrases.
But the structure of section 1084(a)’s first clause is not straightforward.
The sports-gambling modifier is embedded within a longer modifier:
“assisting in the placing of bets or wagers on any sporting event or con-
test.” Reading “on any sporting event or contest” alone to carry backward
to modify the prohibition on “bets or wagers” would “take[] more than a
little mental energy” and be a “heavy lift.” Lockhart, 136 S. Ct. at 963(rejecting the applicability of the series-qualifier rule to the phrase “ag-
gravated sexual abuse, sexual abuse, or abusive sexual conduct involving
a minor or ward”). Nor is there any other textual evidence that would
justify departing from the usual presumption that modifiers apply only to
their closest referents. See United States v. Hayes, 555 U.S. 415, 425
(2009) (declining to apply that rule because it would introduce superfluity
and would require accepting the ungrammatical premises “that Congress
employed the singular ‘element’ to encompass two distinct concepts, and
that it adopted the awkward construction ‘commi[t]’ a ‘use’”); see also
Paroline v. United States, 572 U.S. 434, 447 (2014) (declining to apply
the rule of the last antecedent because it was overcome by other indicia of
meaning). We therefore do not believe that the series-qualifier rule war-
rants extending the sport-gambling modifier across both prohibitions in
the first clause.
This conclusion is confirmed by comparing the structure of the sports-
gambling modifier with other phrases in section 1084(a)’s first clause that
do apply across multiple phrases. For instance, in speaking of “infor-
mation assisting in the placing of bets or wagers on any sporting event or
contest” (emphasis added), Congress employed a structure making clear
that both “bets” and “wagers” were modified by the phrases that come
before and after those items. “Bets” and “wagers” are two like items in
the series, and it is straightforward to modify them with the phrases that
immediately precede (“information assisting in the placing of ”) and follow
(“on any sporting event or contest”) those terms. Applying the last-
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Opinions of the Office of Legal Counsel in Volume 42
antecedent rule so that the prohibition would instead cover “information
assisting in the placement of bets” and “wagers on sporting events or
contests” would also introduce superfluity, since section 1084(a)’s first
prohibition already extends to wire transmissions of “bets or wagers.” To
take another example, the phrase “sporting event or contest” is a textbook
example of a simple, parallel structure where “sporting” modifies both
“event” and “contest.” See Scalia & Garner at 147–48 (providing similar
examples and citing authorities); cf. 2011 Opinion, 35 Op. O.L.C. __, at
*12 n.11 (concluding the same, although for different reasons). In contrast
with such simple constructions, the sports-gambling modifier is embedded
in a more complex structure that does not easily allow that modifier to
extend beyond its immediate referent.
Section 1084(a) similarly limits both prohibitions in the first clause to
interstate wire transmissions. Congress prefaced both prohibitions with
the phrase “for the transmission in interstate or foreign commerce of bets
or wagers or information assisting in the placing of bets or wagers on any
sporting event or contest.” 18 U.S.C. § 1084(a) (emphasis added). In
context, the “transmission” must be “of ” what is mentioned in the follow-
ing phrase. By placing the interstate-commerce requirement before the
word “of,” Congress made clear that the entire phrase preceding “of ”—
“the transmission in interstate or foreign commerce”—would apply to the
first two prohibitions. Otherwise, the second prohibition would be missing
a preposition: “for the transmission . . . information assisting in the plac-
ing of bets or wagers on any sporting event or contest.” But there are no
similar indicators that would support rebutting the last-antecedent pre-
sumption and applying the sports-gambling modifier to the first prohibi-
tion.
The road not taken is also illuminating. Simply by adding two commas,
Congress could have unambiguously extended both prohibitions in the
first clause to sports-related gambling: “for the transmission in interstate
or foreign commerce of bets or wagers[,] or information assisting in the
placing of bets or wagers[,] on any sporting event or contest.” See 2011
Opinion, 35 Op. O.L.C. __, at *5 (recognizing that if the text contained
“commas after each reference to ‘bets or wagers,’” it would have made
the opinion’s interpretation “much more certain”). Congress “could have
easily” crafted text that would have carried that meaning, but did not.
Marx v. Gen. Revenue Corp., 568 U.S. 371, 384 (2013). The absence of
these commas is particularly significant because it leaves “nothing in the
statute to rebut the last-antecedent presumption.” In re Sanders, 551 F.3d
10Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
at 400. Because “Congress no doubt could have worked around this
grammatical rule had it wished . . . we see nothing in the section to justify
dispensing with this default rule of interpretation.” Id. The sports-
gambling modifier therefore does not limit the first prohibition of section
1084(a)’s first clause, which makes it a crime to transmit “bets or wa-
gers,” including those unrelated to sports gambling.
B.
We likewise conclude that section 1084(a)’s second clause is not lim-
ited to sports gambling. The second clause prohibits the use of a wire
communication facility “for the transmission of a wire communication
which entitles the recipient to receive money or credit as a result of bets
or wagers, or for information assisting in the placing of bets or wagers.”
18 U.S.C. § 1084(a). That clause, on its face, applies to bets or wagers of
any kind, even those unrelated to sports.
We do not think it tenable to read into the second clause the qualifier
“on any sporting event or contest” that appears in the first clause. Carry-
ing that qualifier forward to the second clause is even less textually plau-
sible than carrying it backward to the first prohibition of the first clause.
As a matter of basic grammar, section 1084(a)’s first clause is distinct
from the second clause; the two clauses are separated not only by a com-
ma, but also by an introductory determiner that repeats the beginning of
the first clause (“for the transmission of ”). There is no reference to “any
sporting event or contest” in that clause and no apparent textual reason
why the modifier in the first clause would extend to the second clause.
Nor does any canon of construction support reading the sports-
gambling modifier transitively across the two clauses. As our analysis of
the first clause demonstrates, the series-qualifier principle would appear
the most natural candidate to justify such a reading. But here, the sports-
gambling modifier appears after the second of four statutory prohibitions.
It would take a considerable leap for the reader to carry that modifier both
backward to the first prohibition of the first clause, then forward across
the entire second clause. See, e.g., United States v. Lockhart, 749 F.3d
148, 152–53 (2d Cir. 2014) (“[T]his is not the prototypical situation in
which the series qualifier canon is applied, since . . . the modifier does not
end the list in its entirety.”), aff ’d, 136 S. Ct. 958 (2016); Wong v. Minn.
Dep’t of Human Servs., 820 F.3d 922, 928 (8th Cir. 2016) (“[T]he series-
qualifier canon generally applies when a modifier precedes or follows a
11
Opinions of the Office of Legal Counsel in Volume 42
list, not when the modifier appears in the middle.”); cf. Koons Buick
Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 61–62 (2004) (applying a quali-
fier at the end of the second item on a list to the first item as well, based
in part on specific textual evidence that the second item modified the first
item).
Other portions of the Wire Act support this reading. Section 1084(b)
uses the phrase “sporting event[s] or contest[s]” three times to define the
scope of exceptions to section 1084(a)’s prohibitions. Subsection (b)
exempts the transmission “of information for use in news reporting of
sporting events or contests,” then exempts “the transmission of infor-
mation assisting in the placing of bets or wagers on a sporting event or
contest from a 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” (emphases added). That language illustrates that Con-
gress repeated the sports-gambling modifier when applying that term
beyond its nearest, and most natural, referent. “When Congress includes
particular language in one section of a statute but omits it in another,” we
presume “that Congress intended a difference in meaning.” Digital Realty
Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018) (quoting Loughrin v.
United States, 134 S. Ct. 2384, 2390 (2014) (internal quotation marks and
alteration omitted)); Rubin v. Islamic Republic of Iran, 138 S. Ct. 816,
826 (2018) (rejecting a proposed reading of a statutory provision on the
ground that if Congress wanted the provision to have the claimed effect
“it knew how to say so”).
By contrast, section 1084(d) creates a notice-and-disconnect regime for
common carriers, which must discontinue services to subscribers upon
notice that the subscribers are using, or will use, their facilities “for the
purpose of transmitting or receiving gambling information in interstate or
foreign commerce in violation of Federal, State or local law.” Section
1084(d), however, contains none of the sports-gambling qualifiers that
appear in section 1084(a) or (b), and section 1084(d) contains no indica-
tion that it is limited to gambling information involving sporting events or
contests. The absence of that modifier in section 1084(d) was presumably
intentional. We thus cannot regard Congress’s decision to omit the modi-
fier from the second clause of section 1084(a) as an accident.
Our 2011 Opinion concluded that the sports-gambling modifier applied
to section 1084(a)’s second clause, reasoning that Congress had used
“shortened phrases in the second clause to refer back to terms spelled out
more completely in the first clause.” 35 Op. O.L.C. __, at *7. We ob-
12
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
served that the first clause prohibits the use of a wire communication
facility for “the transmission in interstate or foreign commerce” of the
prohibited bets or information, but that the second clause prohibits the use
of the facility just for “the transmission of a wire communication” without
repeating again the words “in interstate or foreign commerce.” Id. Citing
the views of the Criminal Division and the legislative history, we con-
cluded that Congress “presumably intended all the prohibitions in the
Wire Act, including those in the second clause, to be limited to interstate
or foreign (as opposed to intrastate) wire communications.” Id. Because
the interstate-commerce qualifier could apply to both clauses, we con-
cluded that the second clause used the phrase “for the transmission of a
wire communication” as shorthand for both the interstate-commerce
modifier and the sports-gambling modifier. Id.We disagree with this inference, however, because the interstate-
commerce modifier and the sports-gambling modifier are not parallel
phrases. Within the grammar of the statute, the interstate-commerce
element reaches beyond its nearest referent to modify at least the second
prohibition as well as the first. See 18 U.S.C. § 1084(a) (“for the trans-
mission in interstate or foreign commerce of bets or wagers or infor-
mation assisting in the placing of bets or wagers”) (emphases added).
Both prohibitions are tied by prepositional phrases to the “transmission in
interstate or foreign commerce.” By contrast, there is no similar textual
indication that the sports-gambling modifier ranges beyond its nearest
referent: “information assisting in the placing of bets or wagers.” In
addition, the interstate-commerce modifier appears at the beginning of a
list of four prohibitions, and so there is precedent to support carrying the
modifier forward to modify the prohibitions in the second clause. See
United States v. Bass, 404 U.S. 336, 339–40 (1971) (“Since ‘in commerce
or affecting commerce’ undeniably applies to at least one antecedent, and
since it makes sense with all three, the more plausible construction here is
that it in fact applies to all three.”). By contrast, the sports-gambling
modifier appears midway through the list, which does not support the
shorthand reference suggested by our 2011 Opinion. In view of these
textual differences, we do not believe that the interstate-commerce modi-
fier helps us to interpret the sports-gambling modifier. If anything, the
textual differences underscore why the sports-gambling modifier does not
apply across the statute.
In sum, the linguistic maneuvers that are necessary to conclude that the
sports-gambling modifier sweeps both backwards and forwards to reach
13
Opinions of the Office of Legal Counsel in Volume 42
all four of section 1084(a)’s prohibitions are too much for the statutory
text to bear. See Lockhart, 749 F.3d at 152–53; Wong, 820 F.3d at 928.
For these reasons, we conclude that the phrase “on any sporting event
or contest” does not extend beyond the second prohibition in section
1084(a)’s first clause to qualify section 1084(a)’s second clause.
C.
Having concluded the text was ambiguous, our 2011 Opinion reasoned
that reading the Wire Act’s prohibitions as limited to sports gambling
“produce[d] the more logical result.” 35 Op. O.L.C. __, at *5; see also id.
at *7 (applying the sports-gambling modifier across all four prohibitions
“made[] functional sense of the statute”). We found it “difficult to discern
why Congress, having forbidden the transmission of all kinds of bets or
wagers, would have wanted to prohibit only the transmission of infor-
mation assisting in bets or wagers concerning sports.” Id. at *5. There is a
logic to this reasoning, but unlike the 2011 Opinion, we view the statutory
language as plain, and, absent a patent absurdity, we must apply the
statute as written. See Dunn v. CFTC, 519 U.S. 465, 470 (1997).
We do not think that applying the Wire Act as written would result in
an interpretation “where it is quite impossible that Congress could have
intended the result . . . and where the alleged absurdity is so clear as to be
most obvious to most anyone.” Pub. Citizen v. U.S. Dep’t of Justice, 491
U.S. 440, 470–71 (1989) (Kennedy, J., concurring in judgment); see
Scalia & Garner at 237 (“The absurdity must consist of a disposition that
no reasonable person could intend.”). Congress may well have had rea-
sons to target the transmission of information assisting in sports gambling.
Unlike lotteries, numbers games, or other kinds of non-sports gambling,
sports gambling has long depended on the real-time transmission of
information like point spreads, odds, or the results of horse races. Indeed,
in concluding that the Wire Act was limited to sports gambling, our 2011
Opinion quoted the legislative history in which Senator Eastland, the
Chairman of the Judiciary Committee, emphasized that illegal bookmak-
ing required the use of the wires, because bookmakers and betters needed
real-time results of horse “races at about 20 major racetracks throughout
the country.” 35 Op. O.L.C. __, at *9 (quoting 107 Cong. Rec. 13,901
(1961)). Moreover, Congress might have been worried that an unfocused
prohibition on transmitting any information that “assisted” in any sort of
gambling whatsoever would criminalize a range of speech-related con-
14
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
duct—concerns that Congress evidently had in mind when it narrowed
section 1084(a)’s prohibitions by excepting transmissions made “for use
in news reporting of sporting events or contests.” 18 U.S.C. § 1084(b).
We need not speculate further. It is sufficient that Congress targeted the
transmission of information assisting in sports gambling in the text, and
that applying the Wire Act as written does not produce an obviously
absurd result.
In our 2011 Opinion, we found it improbable that Congress would have
failed to prohibit “the transmission of information assisting in the placing
of bets or wagers on non-sporting events,” but then, in section 1084(a)’s
second clause, prohibited transmissions “entitling the recipient to receive
money or credit for the provision of information assisting in the placing of
those lawfully-transmitted bets.” 35 Op. O.L.C. __, at *8. 11 But improba-
ble is not absurd, and that anomaly largely falls away if, as we have
concluded, transmitting bets or wagers of any kind is indeed unlawful
under section 1084(a)’s first clause. See supra Part II.A. It was not absurd
for Congress to supplement a broad prohibition on transmitting infor-
mation that assists sports gambling in the first clause with another prohi-
bition on a particular species of transmissions concerning all forms of
gambling: those that entitle a recipient to money or credit for information
that assists in the placing of unlawfully transmitted bets and wagers. Even
if these prohibitions were anomalous, however, that result would simply
reflect the statutory text. It is the job of the Executive to faithfully execute
those words, and that of Congress to fix or improve those laws as it sees
fit. See Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 565 (2005)
(If there is an “unintentional drafting gap,” “it is up to Congress rather
than the courts to fix it. The omission may seem odd, but it is not ab-
surd.”).
Our 2011 Opinion also relied heavily upon the legislative history of the
1961 Wire Act. Citing the many references in the legislative history to
sports gambling and the dearth of references to other forms of gambling,
11 Similar results would follow even if section 1084(a) were limited to sports gam-
bling. If it were so limited, section 1084(a)’s first clause would allow people to relay
sports bets and wagers so long as they did not use the wires to do so—yet the second
clause would prohibit wire transmissions entitling the recipients to receive money or
credit for those bets and wagers. The primary conduct of betting would not be prohibited
under the Wire Act, yet the wire transmission entitling the bettor to payment would be a
criminal offense under that statute.
15
Opinions of the Office of Legal Counsel in Volume 42
the opinion concluded that “Congress’s overriding goal in the Act was to
stop the use of wire communications for sports gambling in particular.” 35
Op. O.L.C. __, at *8; see id. at *8–10. That may well have been true. But
“statutory prohibitions often go beyond the principal evil to cover rea-
sonably comparable evils, and it is ultimately the provisions of our laws
rather than the principal concerns of our legislators by which we are
governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79
(1998); see also Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134,
1142, 1143 (2018) (declining to attach significance to the fact that the
legislative history of the Fair Labor Standards Act “discusses ‘automobile
salesmen, partsmen, and mechanics’ but never discusses service advi-
sors,” because “[e]ven if Congress did not foresee all of the applications
of the statute, that is no reason not to give the statutory text a fair read-
ing”).
Our 2011 Opinion also emphasized the drafting history of the Wire Act.
As we explained it, an earlier draft of the bill was unequivocally limited
to sports gambling. When the Senate Judiciary Committee substantially
redrafted the provision to change it to its current form, the Committee
removed the commas that had so clearly limited the initial prohibitions to
sporting events and contests. Our 2011 Opinion could not identify evi-
dence in the legislative history that when Congress reworked the provi-
sion, it intended “to expand dramatically the scope of prohibited transmis-
sions from ‘bets or wagers . . . on any sporting event or contest’ to all
‘bets or wagers,’ or to introduce a counterintuitive disparity between the
scope of the statute’s” different prohibitions. 35 Op. O.L.C. __, at *6. The
committee reports, for instance, did not suggest that these changes dra-
matically expanded the Wire Act’s coverage. Given that such substantial
changes “would have significantly altered the scope of the statute,” our
2011 Opinion read the “absence of comment” to be significant. Id. at *7.
But we do not share the 2011 Opinion’s confidence that silence in the
legislative history on those revisions is so probative. As the Supreme
Court recently observed, “if the text is ambiguous, silence in the legisla-
tive history cannot lend any clarity,” and “if the text is clear, it needs no
repetition in the legislative history.” Encino Motorcars, 138 S. Ct. at
1143; see also Avco Corp. v. U.S. Dep’t of Justice, 884 F.2d 621, 625
(D.C. Cir. 1989) (“[S]ilence in legislative history is almost invariably
ambiguous. If a statute is plain in its words, the silence may simply mean
that no one in Congress saw any reason to restate the obvious.”). Here, the
text is clear, and thus, even if so inclined, we would not have a justifica-
16
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
tion for delving into the Congressional Record to ascertain what individu-
al Members of Congress may have thought at the time. It is the words of
the statute that the President signs into law, and in so doing, “it is not to
be supposed that . . . the President endorses the whole Congressional
Record.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384,
396 (1951) (Jackson, J., concurring). As the Supreme Court recently
emphasized, “‘[i]t is the business of Congress to sum up its own debates
in its legislation,’ and once it enacts a statute, ‘we do not inquire what the
legislature meant; we ask only what the statute means.’” Epic Sys. Corp.
v. Lewis, 138 S. Ct. 1612, 1631 (2018) (quoting Schwegmann Bros., 341
U.S. at 396 (Jackson, J., concurring) (some internal quotation marks
omitted)). Congress left the authoritative record of its deliberations in the
text of the statute, and we rely solely upon its plain meaning to govern our
interpretation here. 12
III.
In view of our conclusion that the Wire Act applies to non-sports gam-
bling, the Criminal Division has asked us to revisit the question that our
2011 Opinion did not need to answer, namely whether the 2006 enactment
12 Even if we were to consider the legislative history, there are multiple inferences one
could reasonably draw from the progression of the legislation through Congress. The
2011 Opinion quoted concerns expressed by Senator Kefauver (the leader of the Senate’s
1950s investigation into organized crime), who pressed a Department of Justice witness
on why the draft Wire Act did not reach numbers games and other forms of non-sports-
based gambling. 35 Op. O.L.C. __, at *10 n.7. Shortly after that hearing, the Judiciary
Committee added the new language to change the prohibitions of the bill to their enacted
form; in so doing, it removed the commas that had limited the draft prohibitions to
sporting events and contests. Our 2011 Opinion concluded from this chain of events that
Congress did not intend that change to extend the Wire Act’s prohibitions to non-sports
gambling. Id. at *6–7. But one might just as well speculate that the Judiciary Committee
made such changes to respond to Senator Kefauver’s urging that the Wire Act reach non-
sports gambling. Here then, as in other instances, the legislative record provides grounds
for alternative interpretations of what the Members may have intended. See Exxon Mobil,
545 U.S. at 568 (The “investigation of legislative history has a tendency to become, to
borrow Judge Leventhal’s memorable phrase, an exercise in ‘looking over a crowd and
picking out your friends.’” (quoting Patricia Wald, Some Observations on the Use of
Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983));
see also Scalia & Garner at 377 (“With major legislation, the legislative history has
something for everyone.”). Rather than relying upon suppositions concerning Members’
intent, however, we view the relevant record to be the unambiguous words of the statute.
17
Opinions of the Office of Legal Counsel in Volume 42
of UIGEA modifies the scope of the Wire Act. See Memorandum for John
P. Cronan, Principal Deputy Assistant Attorney General, Criminal Divi-
sion, from David C. Rybicki, Deputy Assistant Attorney General, Crimi-
nal Division, Re: The Interaction Between UIGEA and the Wire Act at 2
(Aug. 28, 2018). Specifically, the Criminal Division has asked whether, in
excluding certain activities from UIGEA’s definition of “unlawful Inter-
net gambling,” UIGEA excludes those same activities from the prohibi-
tions under other federal gambling laws. Id. We conclude that it does not.
Congress enacted UIGEA to strengthen the enforcement of existing
prohibitions against illegal gambling on the Internet. 31 U.S.C. § 5361(4).
UIGEA prohibits anyone “engaged in the business of betting or wagering”
from “knowingly accept[ing]” various kinds of payments “in connection
with the participation of another person in unlawful Internet gambling.”
Id. § 5363. UIGEA defines “unlawful Internet gambling” as follows:
IN GENERAL.—The term “unlawful Internet gambling” means to
place, receive, or otherwise knowingly transmit a bet or wager by
any means which involves the use, at least in part, of the Internet
where such bet or wager is unlawful under any applicable Federal or
State law in the State or Tribal lands in which the bet or wager is ini-
tiated, received, or otherwise made.
Id. § 5362(10)(A). That term, however, “does not include” certain enu-
merated activities. Id. § 5362 (10)(B)–(D). 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 accord-
ance with the laws of such State, even if the routing of those wire trans-
missions was done in a manner that involved interstate commerce. Id.
§ 5362(10)(B).
UIGEA’s definition of “unlawful Internet gambling” simply does not
affect what activities are lawful under the Wire Act. This definition ap-
plies only to the “subchapter” in which UIGEA is contained, 31 U.S.C.
§ 5362, and the Wire Act does not use the term “unlawful Internet gam-
bling” in any event. Our conclusion follows from the plain meaning of the
statutory definition, and Congress has confirmed it with a reservation
clause stating that “[n]o provision of this subchapter shall be construed as
altering, limiting, or extending any Federal or State law or Tribal-State
compact prohibiting, permitting, or regulating gambling within the United
States.” Id. § 5361(b). UIGEA therefore in no way “alter[s], limit[s], or
extend[s]” the existing prohibitions under the Wire Act.
18
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
IV.
For the reasons explained, we conclude that our 2011 Opinion conflicts
with the plain language of the Wire Act. We emphasize, however, that we
employ considerable caution in departing from our prior opinions, and we
therefore think it appropriate to explain in detail why reconsideration is
warranted here. This Office, exercising authority delegated by the Attor-
ney General, provides binding legal advice within the Executive Branch.
See 28 U.S.C. § 511; 28 C.F.R. § 0.25(a); Memorandum for the Attorneys
of the Office, from David J. Barron, Acting Assistant Attorney General,
Office of Legal Counsel, Re: Best Practices for OLC Legal Advice and
Written Opinions at 1 (July 16, 2010) (“2010 Best Practices Memo”),
https://www.justice.gov/sites/default/files/pages/attachments/2014/07/11/
olc-best-practices-2010.pdf; Memorandum for the Attorneys of the Office,
from Steven G. Bradbury, Principal Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Best Practices for OLC Opinions at 1 (May
16, 2005) (“2005 Best Practices Memo”), https://www.justice.gov/sites/
default/files/pages/attachments/2014/07/11/olc-best-practices-2005.pdf.
Although the Judicial Branch’s doctrine of stare decisis does not itself
apply to the Executive Branch, we embrace the long tradition of general
adherence to executive branch legal precedent, reflecting strong interests
in efficiency, institutional credibility, and the reasonable expectations of
those who have relied on our prior advice. This tradition of respect for
Department precedent predates the establishment of this Office and re-
flects the longstanding practice of Attorneys General in providing legal
advice. 13
13 See, e.g., Import Duties—Warehoused Goods, 21 Op. Att’y Gen. 23, 24 (1894) (“A
[definitional] question once definitely answered by one of my predecessors and left at rest
for a long term of years should be reconsidered by me only in a very exceptional case,”
and “reconsideration” would only be appropriate if predicate assumptions on which the
past advice relied were no longer correct); Camel’s Hair Noils—Drawback, 24 Op. Att’y
Gen. 53, 55 (1902) (“[Attorney General] Olney’s opinion, although brief, is evidently
based on careful consideration of all aspects of the case. It is not perhaps accurate, . . . but
I concur in the principle of my predecessor’s ruling, and perceive no sufficient reason to
revise the same. A question once definitely answered by one of my predecessors and left
at rest for a long term of years should be reconsidered by me only in a very exceptional
case.” (internal citations omitted)); see also Trevor W. Morrison, Stare Decisis in the
Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1471–74 (2010) (discussing the
historical practice of stare decisis within the Department of Justice).
19
Opinions of the Office of Legal Counsel in Volume 42
Reconsidering past opinions without considering these interests “could
easily lead to requests for reconsideration of earlier Opinions on other
subjects,” thereby undermining the value of our legal advice. Memoran-
dum for the Attorney General, from Malcolm R. Wilkey, Assistant Attor-
ney General, Office of Legal Counsel, Re: Gifts from Foreign Govern-
ments, CP-58-80 of May 14, 1958, at 3 (May 15, 1958). Accordingly, we
“should not lightly depart from such past decisions, particularly where
they directly address and decide a point in question.” 2010 Best Practices
Memo at 2; accord 2005 Best Practices Memo at 2.
We nevertheless have recognized that, “as with any system of prece-
dent, past decisions” of our Office “may be subject to reconsideration and
withdrawal in appropriate cases and through appropriate processes.” 2010
Best Practices Memo at 2. We have departed from our prior advice for a
range of reasons. In many instances, we have withdrawn precedents when
intervening developments in the law appear to cast doubt upon our con-
clusions. 14 We have also modified earlier advice where the factual predi-
cates have shifted or we have come to a better understanding of them. See,
e.g., Scope of Treasury Department Purchase Rights with Respect to
Financing Initiatives of the U.S. Postal Service, 19 Op. O.L.C. 238, 238,
243, 244 (1995) (upon being asked to “reconsider and rescind” a 1993
opinion, we “reaffirmed and clarified” that opinion but, after gathering
information from the agencies and learning that one agency was not
operating in the manner anticipated by the statute or by us, we modified
one of its conclusions).
In other instances, however, we have reconsidered our advice after
identifying errors in the supporting legal reasoning. 15 We have, for exam-
14 See, e.g., Memorandum for the Files, from Steven G. Bradbury, Principal Deputy
Assistant Attorney General, Re: Status of Certain OLC Opinions Issued in the Aftermath
of the Terrorist Attacks of September 11, 2001, at 2 (Jan. 15, 2009) (“Bradbury Memo on
9/11 Opinions”) (withdrawing certain post-9/11 opinions because, among other things,
their legal reasoning had “been overtaken by subsequent decisions of the Supreme Court
and by legislation passed by Congress and supported by the President”); Authority of the
Department of the Interior to Provide Historic Preservation Grants to Historic Religious
Properties Such as the Old North Church, 27 Op. O.L.C. 91, 117 (2003) (“Perhaps more
important, recent Supreme Court decisions have brought the demise of the ‘pervasively
sectarian’ doctrine that comprised the basis . . . the 1995 Opinion of this Office.”).
15 See, e.g., Application of Anti-Nepotism Statute to Presidential Appointment in White
House, 41 Op. O.L.C. __, at *9–14 (Jan. 20, 2017) (describing our past opinions as legally
erroneous as an initial matter and overtaken by subsequent developments in the law);
20
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
ple, modified our position regarding whether the Appointments Clause
applies to private entities who perform functions on behalf of the federal
government. 16 And we have revisited precedents that themselves had
reversed established positions of the Executive Branch. 17
Several factors justify reconsideration here. Although the 2011 Opinion
directly addressed the question now before us, we believe that the 2011
Opinion devoted insufficient attention to the statutory text and applicable
canons of construction, which we believe compel the conclusion that the
prohibitions of the Wire Act are not uniformly limited to sports gambling.
Furthermore, the 2011 Opinion is of relatively recent vintage and departed
Definition of Torture under 18 U.S.C. §§ 2340–2340A, 28 Op. O.L.C. 297, 304 n.17
(2004) (“We do not believe [these statutory sources] provide a proper guide for interpret-
ing ‘severe pain’ in the very different context of the prohibition against torture in sections
2340–2340A.”); Reconsideration of Applicability of the Davis-Bacon Act to the Veteran
Administration’s Lease of Medical Facilities, 18 Op. O.L.C. 109 (1994) (reversing the
conclusions reached in Applicability of the Davis-Bacon Act to the Veterans Administra-
tion’s Lease of Medical Facilities, 12 Op. O.L.C. 89 (1988)); Authority of the Federal
Bureau of Investigation To Override International Law In Extraterritorial Law Enforce-
ment Activities, 13 Op. O.L.C. 163 (1989) (disapproving the conclusion reached in
Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B Op. O.L.C. 543
(1980), that the FBI lacked authority to apprehend a fugitive in a foreign state in a manner
contrary to customary international law).
16 Compare The Constitutional Separation of Powers Between the President and Con-
gress, 20 Op. O.L.C. 124, 146 n.65 (1996) (“disapprov[ing of ] the Appointments Clause
analysis and conclusion of an earlier opinion of this Office,” and finding that the Ap-
pointments Clause does not apply to private entities), with Officers of the United States
Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 121 (2007) (reversing
the 1996 opinion’s conclusion that the Appointments Clause does not apply to private
entities).
17 See, e.g., Validity of Statutory Rollbacks as a Means of Complying with the Ineligi-
bility Clause, 33 Op. O.L.C. __, at *1 (May 20, 2009) (reconsidering 1987 OLC opinion
that “was not in accord with the prior interpretations of this Clause by the Department of
Justice and has not consistently guided subsequent practice of the Executive Branch” and
did not “reflect[] the best reading of the Ineligibility Clause” of the Constitution); Memo-
randum for the Files, from Steven G. Bradbury, Principal Deputy Assistant Attorney
General, Office of Legal Counsel, Re: October 23, 2001 OLC Opinion Addressing the
Domestic Use of Military Force to Combat Terrorist Activities at 2 (Oct. 6, 2008) (over-
turning post-9/11 precedent that had departed from “the longstanding interpretation of the
Executive Branch,” under which “any particular application of the Insurrection Act to
authorize the use of the military for law enforcement purposes would require the presence
of an actual obstruction of the execution of federal law or a breakdown in the ability of
state authorities to protect federal rights”).
21
Opinions of the Office of Legal Counsel in Volume 42
from established Department practice, which included successful prosecu-
tions under a broader understanding of the Wire Act and repeated repre-
sentations to Congress about the Department’s views. See supra Part I.
The Department’s position prior to our 2011 Opinion, indeed, may have
informed Congress’s action in 2006 in enacting the UIGEA, which pro-
hibited the acceptance of payment in connection with “unlawful Internet
gambling,” but expressly declined to alter, limit, or extend any federal
laws “prohibiting, permitting, or regulating gambling within the United
States.” 31 U.S.C. § 5361(b).
Reaching a contrary conclusion from our prior opinion will also make it
more likely that the Executive Branch’s view of the law will be tested in
the courts. We have sometimes relied on that likelihood in considering
whether the Executive should decline to enforce or defend unconstitution-
al statutes. See Presidential Authority to Decline to Execute Unconstitu-
tional Statutes, 18 Op. O.L.C. 199, 201 (1994); Recommendation that the
Department of Justice Not Defend the Constitutionality of Certain Provi-
sions of the Bankruptcy Amendments and Federalist Judgeship Act of
1984, 8 Op. O.L.C. 183, 193–94 (1984). We likewise believe it relevant in
determining whether to depart from our precedent. Under our 2011 Opin-
ion, the Department of Justice may not pursue non-sports-gambling-
related prosecutions under the Wire Act. But under the conclusion we
adopt today, such prosecutions may proceed where appropriate, and courts
may entertain challenges to the government’s view of the statute’s scope
in such proceedings. While the possibility of judicial review cannot sub-
stitute for the Department’s independent obligation to interpret and faith-
fully execute the law, that possibility does provide a one-way check on
the correctness of today’s opinion, which weighs in favor of our change in
position.
We acknowledge that some may have relied on the views expressed in
our 2011 Opinion about what federal law permits. Some States, for exam-
ple, began selling lottery tickets via the Internet after the issuance of our
2011 Opinion. 18 But in light of our conclusion about the plain language of
18 See, e.g., John Byrne, Quinn Says Online Lottery Sales Could Start in Spring, Chi.
Tribune (Dec. 27, 2011), http://www.chicagotribune.com/news/local/politics/chi-quinn-
says-online-lottery-sales-could-start-in-spring-20111227-story.html (explaining that
“following a U.S. Justice Department ruling that the Internet sales [of state lottery tickets]
are legal,” the Governor of Illinois planned to move forward with plans to sell lottery
tickets on the Internet); State of Illinois, Office of Management and Budget, Illinois
22
Reconsidering Whether the Wire Act Applies to Non-Sports Gambling
the statute, we do not believe that such reliance interests are sufficient to
justify continued adherence to the 2011 opinion. 19 Moreover, if Congress
finds it appropriate to protect those interests, it retains ultimate authority
over the scope of the statute and may amend the statute at any time, either
to broaden or narrow its prohibitions.
V.
We conclude that the prohibitions of 18 U.S.C. § 1084(a) are not uni-
formly limited to gambling on sporting events or contests. Only the sec-
ond prohibition of the first clause of section 1084(a), which criminalizes
transmitting “information assisting in the placing of bets or wagers on any
sporting event or contest,” is so limited. The other prohibitions apply to
non-sports-related betting or wagering that satisfy the other elements of
section 1084(a). We also conclude that section 1084(a) is not modified by
UIGEA. This opinion supersedes and replaces our 2011 Opinion on the
subject.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
Performance Reporting System, Agency Performance Metric Reports FY18 Quarter 4
(Aug. 14, 2018 3:53 PM), https://www.illinois.gov/gov/budget/IPRS%20Reports/458_
Department_of_the_Lottery.pdf (“Internet sales” of Illinois lottery tickets were about $20
million in FY 2017 and in FY 2018).
19 An individual who reasonably relied upon our 2011 Opinion may have a defense for
acts taken in violation of the Wire Act after the publication of that opinion and prior to the
publication of this one. See, e.g., United States v. Pa. Indus. Chem. Corp., 411 U.S. 655,
673–74 (1973); Cox v. Louisiana, 379 U.S. 559, 568–69 (1965). The reliance interest
implicit in any such defense, however, does not bear upon our reconsideration of the 2011
Opinion.
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