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Thursday, November 14, 2002
Experts say indictment likely in Pick Six scandal

By Matt Hegarty
Daily Racing Form

NEW YORK - Criminal law experts said Wednesday they expected a grand jury to hand down an indictment in the next 30 days against the three men accused of conspiring to alter pick six and pick four bets.

The experts said that a high-profile United States attorney such as James Comey rarely files a criminal complaint without being confident that the evidence will sway a grand jury, which must issue an indictment to bring a federal case to trial. In many cases getting an indictment is something of a formality.

"You technically have to show a preponderance of evidence, but that's easy if you sit the agent down and he says, 'We know points 1 through 12,' and you just read the complaint," said James Cohen, a professor at Fordham University who specializes in criminal law.

Comey, the U.S. Attorney for the Southern District of New York, filed a criminal complaint against the three suspects last Friday. The complaint was made public on Tuesday after the three men, the former fraternity brothers Chris Harn, Derrick Davis, and Glen DaSilva, surrendered to the F.B.I. that morning. Through their lawyers, all three have have said they are innocent. Each was released on $200,000 bail.

The complaint alleged that Harn, a former computer programmer for Autotote, altered pick six and pick four tickets that Davis and DaSilva placed through a phone account at Catskill Off-Track Betting Corporation in upstate New York. The winning wagers were worth more than $3.2 million, but the $3.1 million payout on the disputed Breeders' Cup pick six ticket that triggered the investigation has been withheld.

At a district court hearing Tuesday in White Plains, N.Y., Judge Mark D. Fox gave prosecutors until Dec. 17, or 30 days from the surrender, excluding holidays, to issue an indictment. Comey said that prosecutors intend to pursue a variety of fraud and conspiracy charges.

"I would expect a grand jury indictment," said Richard Uviller, a professor emeritus of law at Columbia University. "It doesn't seem like a very complex case, and they seem to have all the facts in hand."

Proceedings of a grand jury are secret. The grand jury that will hear the case will be convened in either Manhattan or White Plains, the site of Comey's office, an official for the U.S. attorney's office said.

If the grand jury returns an indictment, the defendants will be formally charged and arraigned within 30 days. Pre-trial motions would follow, and at the same time the U.S. attorney's office would continue to collect evidence to build a stronger case, the legal experts said.

Cohen said that he would expect plea discussions to take place as the grand jury is convened, citing the "staggering coincidences" in the case that were listed in the complaint and his belief that investigators will not have a hard time proving the allegations.

Lawyers for the suspects would not comment on specifics of the case on Friday.

Cohen said that if the suspects were eventually charged and found guilty, they would likely face prison sentences of seven to eight years under the sentencing guidelines for conspiracy to commit wire fraud. If the defendants pleaded guilty as part of a plea bargain, they could shave two or more years off the sentence, Cohen said. If one or more of the defendants agreed to testify against the others, then his sentence could be reduced even further.

Investigators are focusing on computer records that could indicate whether Harn altered the bets, people involved in the investigation said. The records include security logs and back-up data tapes at Autotote's headquarters in Delaware and at Catskill OTB. In the complaint, Harn was said to have had access to Catskill's hub in Poughkeepsie, N.Y., through a modem connection at his office in Delaware.

Some people involved in the investigation have said that the evidence collected so far does not adequately build a case, in part because of poor security controls at Autotote and Catskill.

One former prosecutor who has examined the complaint and followed the investigation said that the complaint does not include anything other than circumstantial evidence.

"It doesn't take much to get an indictment, but proof beyond a reasonable doubt is not an easy standard to meet," the former prosecutor said. "If I was a trial lawyer, I would be saying, 'Show me the courtroom.' "

Both Davis and DaSilva tested positive for cocaine after surrendering on Tuesday morning as part of the routine procedures of surrender, which includes being fingerprinted and submitting a urine sample. The judge warned them that if they tested positive while on bail they could be put in jail.