United States v. Johnnie Wilson

475 F.2d 108

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 1973
• Docket: 72-1213
• Status: Published

Opinions

PER CURIAM:

Appellant was convicted of transporting two “gambling devices” (coin-operated “Bonanza” and “bead ball” machines) in interstate commerce in violation of 15 U.S.C. § 1172. The judgment is affirmed for the reasons stated in the district court’s findings of fact, conclusions of law, and memorandum opinion reported at 355 F.Supp. 1394.

Dissenting in part, Judge Barnes concludes that the “Bonanza” machine, equipped with the set of coupons constituting Government Exhibit 1, is not a “gambling device” as defined in 15 U.S. C. § 1171. This conclusion rests entirely on the premises that no “element of chance” is involved because the player sees exactly what he is going to get before he invests his 25 cents.

Exhibit 1 consists of 1500 coupons. Of these, 1386 are “merchandise” coupons good for 50 cents credit on a purchase of $10.00 or more at a store other than that in which the “Bonanza” machine was placed. The remaining 114 are “dollar value” coupons redeemable immediately for from 50 cents to $31.00 in cash.

Since the minimum “dollar value” coupon could be exchanged immediately for 50 cents cash, it can be safely assumed that when a player began to play, the coupon he saw, and would receive for his 25 cents, was a “merchandise” coupon good for 50 cents credit on a purchase of $10.00 or more in some other store. However, he would also get a look at the next coupon, which, for another 25 cents, might entitle him to as much as $31.00 cash. The district court could reasonably conclude that most players put their first 25 cents in the “Bonanza” machine because of the “element of chance” that thé next coupon, thus exposed, would entitle them, for another 25 cents, to a guaranteed payment of 50 cents to $31.00.

The ordinary “slot machine” could be readily converted to pay off only if the player dropped in a second coin after the rollers stopped. Since no one would leave a winning combination on the machine in such circumstances, the player would always know exactly what he was going to get when he put in each of the two coins: nothing the first time; and whatever the showing combination entitled him to the second time. Yet clearly playing such a “slot machine” would involve an “element of chance.” This would be so even though the non-paying combinations on such a quarter slot machine gave the player a coupon entitling him to 50 cents credit on a $10.00 purchase from some other local merchant.

Judge Barnes agrees that Marvin v. Sloan, 77 Mont. 174, 250 P. 443 (1926), and Ferguson v. State, 178 Ind. 568, 99 N.E. 806 (1912), “require the result expressed by the district court,” but finds these decisions inapplicable because of a difference in the definition of “gambling devices” in the state statutes involved in these eases. The cases cannot be distinguished on this ground. Both turned on whether playing a device that allowed the player to see what he was going to get before he deposited his money involved an “element of chance” —exactly the question presented here. Both courts answered in the affirmative. As the Supreme Court of Indiana said in Ferguson v. State, 99 N.E. at 807:

“. . . the fact that the machine would indicate the reward before it was played makes no difference. The inducement for each play was the chance that by that play the machine would be set to indicate that it would pay checks on the following play. The thing that attracted the player was the chance that ultimately he would receive something for nothing.”

This is the overwhelming weight of authority. Appellant cites no cases to the contrary. Judge Barnes cites none.

United States v. Five Gambling Devices, 252 F.2d 210 (7th Cir. 1958), and Hannifin v. United States, 248 F.2d 173 (9th Cir. 1957), concern the meaning of the term “insignia,” not “element of chance.”

Affirmed.