United States v. Various Slot MacHines on Guam, and Amanda Guzman Shelton, Claimant-Appellant

658 F.2d 697, 1981 U.S. App. LEXIS 17149, 9 Fed. R. Serv. 197

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 5, 1981
• Docket: 79-4390
• Status: Published

Opinions

DUNIWAY, Circuit Judge:

Appeal from a judgment forfeiting 9 machines alleged to be gambling machines as defined in 15 U.S.C. § 1171(a)(1) and (2) and subject to forfeiture under 15 U.S.C. § 1177 for violation of 15 U.S.C. § 1172, by having been transported to Guam. The government moved for summary judgment and that motion was granted.

I. The Summary Judgment.

Section 1171(a)(1) defines “gambling device” to mean: “any so-called ‘slot machine’ or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property. ...”

Section 1171(a)(2) defines “gambling device” to mean: “any other machine or mechanical device (including, but not limited to, roulette wheels and similar devices) designed and manufactured primarily for use in connection with gambling, and” (A) as above or (B) as above.

The government’s motion is supported by two affidavits. One affidavit, by FBI Agent Leahy, describes the machines as follows:

(a) that the devices were manufactured outside the Territory of Guam and such devices are not now or ever has [sic] been manufactured within the Territory;

(b) the devices are described as follows: coin-activated, mechanically-operated machines. Each device when assembled and ready for use has a verticle [sic] standing cabinet housing three or more narrow cylindrical drums commonly called reels which are marked with numbers or symbols. Vertically disposed on a common axis, the reels are caused to revolve freely when a player activates the machines by pulling a lever affixed in the side of the cabinet. The power is essentially the mechanical impact of spring-loaded reel impellers.... Awards which are recorded automatically are based on the horizontal alighment [sic] of symbols when the reels are at rest. The awards are recorded on a replay register... .

Each machine has a replay register which is a multi-digit counting meter which records the awards or free games won. Free games so recorded may be used by depressing appropriate buttons to activate the mechanism which controls the increase of free games awards thus decreasing the number showing each time by the replay register by one. Additionally the replay register may be cleared by an apparatus or an on/off switch located on the device or by disconnecting the device from its power source.

Within the device are two additional meters, the total plays meter and the replays meter. The former records the number of coins inserted in the device and the number of free plays used in the play of the machine. The replays meter records the total free plays which have been won. Subtracting the total registered on the replay meter and the total of coins in the machine from the total registered on the total plays meter will result in the number of free games eliminated from the machine without being used in play.

All of the said devices were transported into Guam via interstate or foreign commerce after December 17, 1962.

The other affidavit, by FBI Agent Green, states,

5. That based on my personal inspection of the exteriors and interiors of these machines, I can state the following:

(a) Each machine contains slots for insertion of coins of various denominations;

(b) Each machine operates through the use of reels or drums with various insignia on them;

(c) Each machine contains a pay-out tray for the return of jackpots or other awards;

(d) Each machine contains a lever on the side, which when pulled, activates the machines;

(e) Each machine was manufactured outside of Guam;

(f) Each machine contains conspicuous language on the exterior portions referring variously to money awards, jackpots, etc.

This affidavit also placed before the court photographs of four of the machines, stated by the witness to be typical of the nine.

Testimony in another ease by the claimant, one Shelton, states, in reference to the nine machines:

Q ... You did not manufacture these machines; is that correct?

A No, not any of them entirely. Some of them have conversions that were done locally.

Q Were these machines received from outside of Guam by you?

A Yes.

These affidavits and Shelton’s admission are sufficient to sustain a summary judgment, and place upon the claimant the burden imposed by Rule 56(e) F.R.Civ.P.:

his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.

The claimant’s affidavits are insufficient to meet this requirement.

One affidavit, by claimant Shelton, asserts that the machines are not gambling machines but are “Electronic Point-Maker Machines.” He offers no facts to support the assertion. For all that appears, the label “Electronic Point-Maker” is one that applies to the machines described in the FBI affidavits and in § 1171(a)(1) and (2). Next, he says that it is untrue “that such devices are not now nor ever have been manufactured” in Guam, and that “similar” devices have been manufactured in Guam. Significantly, he does not say that any of the 9 machines was manufactured in Guam. Next, he denies that the reels are vertically disposed on a common axis. He does not deny that the reels are vertical and/or that the axis is horizontal.' He simply misreads the affidavits as stating that the reels are stacked on a vertical axis. He denies that the power that causes the reels to turn is mechanical and alleges that it is electrical. He says there is no “replay register,” but also says that “either the player wins or he loses,” and that some of the machines have a “counter,” which can be cleared by a key control. None of Shelton’s denials or allegations sustains his claim that the machines are not gambling devices. The affidavit is 5/2 legal-size pages of pettifoggery.

A second affidavit is by one Pangelinan. He, too asserts, without supporting facts, that the machines are “Electronic Point-Maker Machines.” His affidavit is 2/2 pages of quibble. A supplemental affidavit by Pangelinan is no better. He does, however, make one factual allegation in response to Agent Green’s affidavit:

For example, “each machine” does not contain slots for the insertion of coins of various denominations.” “Each machine” does not have a “return of jackpots or other awards.”

As the court noted, however, the photographs show that the machines have slots to receive coins and trays for payouts or jackpots. In response, all that counsel could come up with is this: “Judge we’re not arguing with the photos. We’re not saying that the photos are wrong. The Government hasn’t done any more than we have done. We’re not saying that these photos don’t accurately portray the machines. But the Government hasn’t shown any type of photographs showing some kind of a cash payout or monies floating out of these machines.” As § 1171(a)(1)(B) demonstrates, that response, too, is mere pettifoggery. Under (B), it is enough that a person may become entitled to receive money or property. It need not come to him in a jackpot tray. And when the court remarked that the mere assertion that the machines are electronic point-makers is a conclusion, and asked, “where in the affidavit[s] do they present facts to the court to convince the court that these are electronic pointmakers?”, counsel’s reply was, “Well, we don’t have a specific description of exactly why they are pointmakers.” If he had omitted the word “exactly,” his response would have been exact.

Both Shelton and Pangelinan state in their affidavits that they have had extensive experience “in the maintenance, repair and operation of coin-operated machines” (Shelton), and training in their “manufacture and characteristics” (Pangelinan). Shelton also says that:

I have attended the National Institute of Coin Machines School in Denver, Colorado and the Texas State Technical Institute School in Waco, Texas and have more than fifteen (15) years experience in the coin-operated machine business.

Pangelinan says:

I am the manager of Leisure Games, Inc., a coin-operated machine business located in Tamuning, Territory of Guam. I was formerly the Manager of Bally Guam Corporation which was a branch of Bally Manufacturing Company, Chicago, the manufacturer of all the machines identified in this case as the nine (9) Defendant machines.

Based upon my extensive managerial experience at Bally Guam Corporation and my more than twenty (20) years experience in the coin-operated machine business, I have reviewed the affidavit of FBI Agent Lawrence L. Leahy concerning the nine (9) machines identified in this case as “Various Slot Machines on Guam.”

We assume, on the basis of the foregoing, that each of them qualifies as an expert on coin-operated machines.

It can be argued that this brings into play rules 702-705, F.R.Evid., which permit an expert to testify “in the form of an opinion” (rule 702), which “is not objectionable because it embraces an ultimate issue to be decided” (rule 704). Rule 705 permits the expert “to testify in terms of opinion . . . without prior disclosure of the underlying facts or data, unless the court requires otherwise.” The conclusion of the argument is that Shelton’s and Pangelinan’s statements that the machines are not gambling machines, and that they are electronic point-makers, are in themselves sufficient to show that there is a “genuine issue as to any material fact” (F.R.Civ.P. 56(c)), thus defeating the motion for summary judgment. To put it in another way, it can be argued that an expert’s conclusion or opinion meets the requirement of Rule 56(e) that the party opposing the motion “must set forth specific facts showing that there is a genuine issue for trial.”

To begin with, we have difficulty with the notion that to state an opinion is to set forth specific facts. Be that as it may, we also think that, in the context of a motion for summary judgment, an expert must back up his opinion with specific facts. This was obviously Judge Dueñas’ view when he asked counsel “where in the affidavits do they present facts?” As we have seen, counsel admitted that they weren’t in the affidavits. Moreover, he made no offer to come forward with such facts by way of a supplemental affidavit or otherwise.

Our view is shared by the Court of Appeals for the D.C. Circuit. In Merit Motors, Inc. v. Chrysler Corp., D.C. Cir., 1977, 569 F.2d 666, Judge J. Skelly Wright, speaking for the court, said:

On appeal appellants attempt to salvage their expert’s opinion by relying on cases applying Rule 703 of the Federal Rules of Evidence, adopted in 1975. This rule was intended to broaden the acceptable bases of expert opinion, but it was not intended, as appellants seem to argue, to make summary judgment impossible whenever a party has produced an expert to support its position. Even Rule 703 requires that the grounds relied on by an expert must be “a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject.” While appellants claim that Staelin has merely applied “standard economic theory” to “a factual basis which is uncontroverted,” it is obvious that Staelin makes unsupported assumptions about the elasticities of demand in various markets and that he virtually ignores the impact of the dominant forces in the automobile market: General Motors and Ford. To hold that Rule 703 prevents a court from granting summary judgment against a party who relies solely on an expert’s opinion that has no more basis in or out of the record than Staelin’s theoretical speculations would seriously undermine the policies of Rule 56. We are unwilling to impose the fruitless expenses of litigation that would result from such a limitation on the power of a court to grant summary judgment. Id. at 672-3 (footnotes omitted).

We have reversed the grant of summary judgment, in reliance on an expert’s affidavit. But in that case, the expert stated facts to back up his conclusion. See Bieghler v. Kleppe, 9 Cir., 1980, 633 F.2d 531.

In short, we hold that the claimant’s affidavits do not comply with Rule 56(e). They do not “set forth specific facts showing that there is a genuine issue for trial.” The conflict between the government photographs and the Pangelinan affidavit is not genuine. Even on a motion for summary judgment, a court is not compelled to give weight to an allegation that is incontrovertibly demonstrated to be false.

It was not error to enter a summary judgment for the government. It would be an imposition on the trial judge, and make a mockery of summary judgment procedure, to hold otherwise.

II. Cost of Storing Seized Property.

The court awarded, as costs, the amount paid by the Marshal for storage of the machines. This is provided for by 28 U.S.C. §§ 1920 and 1921. There was no error.

III. Exemption.

Guam Public Law No. 13-135 provides only a limited exemption to 15 U.S.C. § 1172, and the court correctly concluded that the exemption was not applicable to the machines in this case and that there was no dispute of material fact on this question.

Affirmed.