United States v. 103 Electronic Gambling Devices

223 F.3d 1091, 2000 Daily Journal DAR 9627, 2000 Cal. Daily Op. Serv. 7261, 2000 U.S. App. LEXIS 22025, 2000 WL 1218766
Court of Appeals for the Ninth Circuit·Decided August 29, 2000·No. No. 99-15675·Published·Cited by 5 cases

Opinion

BERZON, Circuit Judge:

This case poses the question, what is bingo? Cf. Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp., 190 F.Supp. 116, 117 (S.D.N.Y.1960) (Friendly, J., sitting by designation) (“The issue is, what is chicken?”). In particular, we determine whether an electronic game called MegaMania, manufactured and sold by Appellee Multimedia Games, Inc. (“Multimedia”), is “bingo” as that term is defined in the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721.

Appellant the United States thinks not. The Government claims that the terminals on which MegaMania is played are “gambling devices” within the meaning of the Johnson Act, 15 U.S.C. §§ 1171-1178. The Johnson Act prohibits the possession and operation of any “gambling device , as defined in the Act, id. § 1171(a), on Indian land, see id. § 1175(a), unless authorized by a tribal-state compact, see 25 U.S.C. § 2710(d)(6). Invoking the Johnson Act, the Government brought this forfeiture action against, inter alia, some twenty-odd MegaMania game terminals located at the Red Fox Casino, an Indian gaming facility in Northern California.

Under IGRA, however, bingo and electronic aids thereto are generally permissible in Indian country. See id. §§ 2703(7)(A), 2710. Multimedia asserts that MegaMania is a bingo game, and that the use of the games at the casino was therefore legal.

I. The Game

In MegaMania, players compete against each other in a single, interlinked electronic game via a network of individual computer terminals located at tribal gaming facilities throughout the country. At their respective terminals, players may make an initial purchase at 25 cents per card of up to four electronic game “cards,” displayed on the video screens of each terminal.1 A participant may play up to four cards at a time.

MegaMania does not commence until at least twelve people begin playing a minimum of 48 cards collectively. Once the game begins the players start receiving a series of three-number draws displayed on-screen and announced through audio channels.2 For each three number draw a player must pay 25 cents per card that he or she is playing (e.g., if a player has three cards on her screen, she must pay 75 cents [1094]*1094per draw).3 This pay-per-draw style of play is called “ante up” bingo. After a set of numbers is drawn players must press a “Daub Cards” button (“daub button”) to “cover” the called numbers on the cards. When a' player presses the daub button, the computer automatically covers corresponding numbers on the player’s cards. After each three-number draw is displayed a player has eight seconds to decide whether to continue playing the card(s) for another draw.

When a player covers a straight line either horizontally, vertically or diagonally and declares “bingo” (by pressing the daub button) on one or more cards, every player in every facility nationwide is notified of the bingo. Once a player (or players) get(s) bingo, this straight-line game ends. Each player with bingo wins a monetary prize, the amount of which is based on the total number of cards being played in the game, the number of balls drawn since the game began, and the number of players reaching bingo simultaneously. The top jackpot on the straight-line game is $5000, awarded for a bingo achieved after the first four numbers are drawn, the earliest point at which a player can get bingo.

In addition to the traditional straight-line game, there is a “corners game” (dubbed “CornerMania”). In the corners game, each player who covers two, three, or four corners of a card gets a prize. The corners game is played continuously until the straight-line game ends, so there can be one or more CornerMania winners on each draw after the first. If no corners game prize has been awarded before the straight-line game ends, additional numbers are drawn three at a time until at least one corner prize is given out.

II. IGRA and its Implementing Regulations

In 1988, Congress adopted IGRA to provide “a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. § 2702(1). IGRA places games played on Indian land into three classes: class I consists of traditional Indian games or social games played for prizes of minimal value; class II includes bingo and games similar to bingo, plus certain card games; class III is comprised of all games not in classes I or II. See id. §§ 2703(6)-(8). Only if a tribe has negotiated a tribal-state compact may it run class III games on its land. See id. at § 2710(d)(1)(C). At the time the Government brought this forfeiture action, no such compact was in place between the Cahto Tribe and the State of California. Thus, for our purposes the critical question is whether MegaMania and the MegaMa-nia terminals are class II gaming under IGRA.

IGRA defines class II gaming in relevant part as follows:

(i) the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)—
(I) which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,
(II) in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and
(III) in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards,
including (if played in the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo,....

[1095]*1095Id. § 2703(7)(A). IGRA, however, explicitly excludes from Class II gaming “electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.” Id. § 2703(7)(B)(ii).

As part of its initiative to deal with tribal gaming, Congress created the National Indian Gaming Commission (“NIGC”) to regulate tribal gaming. The NIGC’s broad powers include inspecting tribes’ books and records, approving tribal-state pacts, levying and collecting civil fines, monitoring and even shutting down games, and promulgating regulations and guidelines it deems appropriate to implement IGRA. See 25 U.S.C. §§ 2705-06, 2713.

The NIGC has developed regulations to refine the scope of class II gaming. One such regulation, 25 C.F.R. § 502.3, set out in the margin, for the most part adopts the language of § 2703(7)(A).4

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United States v. 103 Electronic Gambling Devices, 223 F.3d 1091, 2000 Daily Journal DAR 9627, 2000 Cal. Daily Op. Serv. 7261, 2000 U.S. App. LEXIS 22025, 2000 WL 1218766 (9th Cir. 2000).

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