State v. 825 Elec. Gambling Devices

• Decision Date: 23 December 2016
• Docket Number: 1151024.
• Citation: 226 So.3d 660
• Parties: STATE of Alabama v. 825 ELECTRONIC GAMBLING DEVICES et al.
• Court: Alabama Supreme Court

226 So.3d 660

STATE of Alabama

v.825 ELECTRONIC GAMBLING DEVICES et al.

1151024.

Supreme Court of Alabama.

December 23, 2016

Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen. and John L. Kachelman III, asst. atty. gen., for appellant.

John M. Bolton III, Montgomery; and Charlanna W. Skaggs of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee, Greenetrack, Inc.

PER CURIAM.

The State of Alabama appeals the Greene Circuit Court's judgment denying its petition for forfeiture of certain electronic-gambling devices and records of Greenetrack, Inc., naming as respondents 825 Electronic Gambling Devices, Greenetrack, Inc., Bally Gaming, Inc., Cadillac Jack, Inc., and International Game Technology, Inc. ("IGT"). We reverse the judgment and render a judgment in favor of the State.

Facts and Procedural History

On November 4, 2003, the voters of Greene County ratified Amendment No. 743 (now Local Amendments, Greene County, § 1 (Off. Recomp.)), which provides, in pertinent part, that "[b]ingo games for prizes or money may be operated by a nonprofit organization in Greene County." After the adoption of Amendment No. 743, Greenetrack installed electronic-gaming devices at its facility in Greene County, also known as "Greenetrack."

In December 2008, Governor Bob Riley issued Executive Order No. 44, which created the Governor's Task Force on Illegal Gambling. Agents of the task force conducted an undercover investigation at Greenetrack to determine whether the machines at Greenetrack were illegal gambling devices. The investigation led the task-force agents to believe that the machines constituted slot machines, which are illegal in Alabama, see § 13A–12–27 and § 13A–12–20(10), Ala. Code 1975. Beginning on July 1, 2010, law-enforcement agents removed from Greenetrack 825 gaming machines, the servers to which the machines were attached, and assorted paper and electronic records of gaming activity, including various documents, computers, and manuals related to the operations of Greenetrack. On August 4, 2010, the State filed an amended petition for civil forfeiture seeking forfeiture of the seized items. On April 11 and 12, 2016, the circuit court conducted a bench trial.

At trial, witnesses for the State presented testimony about the investigation and the seizure of the gaming machines, which were manufactured by Bally, Cadillac Jack, and IGT; the servers; and the records. Lieutenant Mike Reese, a former employee of the Alabama Alcohol Beverage Control Board who worked on the task force, testified with regard to the play of the gaming devices seized from Greenetrack. The record provides:

"[Assistant attorney general]: Lt. Reese, with respect to the play of this game, you came up to the machine and you indicated that there [were] certain buttons and other areas on that machine.

"What did you have to do as a player to play this 24 Caret Gold machine?

"[Lt. Reese]: You had to put either cash—cash bills or a voucher into a slot. And it would take it into the machine, it would pull it in, and then it would credit on the screen how much money you put in or depending on whatever you had on the voucher. And the voucher could say $3.40. You slide it in, and it would credit the play for $3.40. And then you would have to start the machine itself.

"[Assistant attorney general]: ....

"Whenever you inserted that into the machine, either the money or the voucher, what did you have to do next to initiate playing on the machine?

"[Lt. Reese]: You had to start the actual play of the machine by hitting a button. It could be ‘daub’ or ‘play.’ It would say sometimes ‘play daub’ on the same button. You'd have to hit it. And then when you did that, the machine would start operating.

"....

"[Assistant attorney general]: Now, during the course of playing this game, did you have to take any action while playing the game in any way, form, or fashion?

"[Lt. Reese]: Well, you didn't have to. Once you started it, if you didn't want to, you didn't have to do anything else. But to actually win, you would have to daub it several times.

"What the screen showed in the video, it would tell you and say, ‘Daub now.’ So you would hit the button again. And then after you hit it, it would then stop, the reels would stop on the lower—what we call the player's plexy. That was where the rails were. It would stop.

"[Assistant attorney general]: Now, at any time, did you have any kind of control or ability to change the game or interact inside that game while it was running?

"[Lt. Reese]: No, you did not.

"[Assistant attorney general]: Was it a game of chance?

"[Lt. Reese]: Absolutely.

"[Assistant attorney general]: Any actions that you took, did it determine any kind of outcome of the game?

"[Lt. Reese]: As I said, the only thing you could do is to begin play. And then once you began play, it was solely up to the machine itself whether you won or lost.

"....

"THE COURT: Now, one last question.

"If you were distracted and not looking at that machine when it said ‘daub,’ you could sleep your win?

"[Lt. Reese]: Yes, you could.

"....

"[Assistant attorney general]: But with respect to these games, I just wanted to differentiate, if I could, any distinctive differences between these games. So if you could tell the Court anything that played differently, that's fine. But if they all played substantially the same, that's fine too. ...

"[Lt. Reese]: Yes, sir. They all—they played the same. You had to start the machine by hitting a button, even the one that you had to hit one time. But you had to start with the action of hitting the button and then they would elicit something of value if you won. And it would exert—not cash, but they would exert vouchers that you would then have to either play on the machines or go cash out. So, characteristically, yes, they all played the same.

"....

"[Lt. Reese]: Every machine that I observed at Greenetrack all had bingo cards on them. Every one of them. They all played the same. And the people that I watched, including other agents, had to insert cash or vouchers into the machines, vouchers having value on it, and then they played the same way. ...

"....

"[Assistant attorney general]: Were you required to look at that 5–by–5 grid in any way to mark it or signify that a number had been called?

"[Lt. Reese]: No, sir, I did not.

"[Assistant attorney general]: Did you hear anyone calling out numbers or values related to the play of the games whenever you were playing these machines?

"[Lt. Reese]: No, I did not.

"[Assistant attorney general]: How quickly did the numbers appear on the screen?

"[Lt. Reese]: Instantaneously. And by ‘instantaneously,’ as soon as you hit the machine, the ball would drop. Second daub, you could do it like (indicating) and the game would be over in a matter of three seconds.

"[Assistant attorney general]: Were you able to respond in any way whenever the numbers appeared there on the game screen?

"[Lt. Reese]: No, sir, you were not.

"[Assistant attorney general]: Did the machines give you any time to react to one number in any way before the next one was drawn?

"[Lt. Reese]: Well, they were instantaneous. The first three fell at the same time, and then the second batch fell, and it could be 15 to 30 balls instantaneous. You couldn't mark it one by one. They all fell at the same time.

"[Assistant attorney general]: Were you required to know what kind of pattern you were looking for in playing this game on this machine?

"[Lt. Reese]: You were not.

"[Assistant attorney general]: Were there any players, or did you ever announce bingo?

"[Lt. Reese]: No, sir, I did not.

"[Assistant attorney general]: Did you hear anyone else whenever you were playing the games in the facility announce that they had bingoed?

"[Lt. Reese]: Never.

"....

"[Assistant attorney general]: ... In playing the game, was there any way to try and signify that you had a bingo, like you had a game-winning pattern when, in fact, you did not?

"[Lt. Reese]: No sir."

On cross-examination, Lt. Reese stated that the bingo balls displayed on the machines were video representations, that the balls were drawn and would fall electronically, and that the claiming of the prizes was done electronically. Lt. Reese also stated that if the machine being played did not win the game, the machine would identify numerically the machine that won the game. He explained that when a person initiated a machine and there were not enough machines engaged to play, the machine would post a message stating "waiting for other players." Lt. Reese further explained that, although the machines of the other players playing the game were identified on a player's machine, a player could not determine who else was involved in the game. Lt. Reese testified that he believed the machines seized at Greenetrack were slot machines.

Greenetrack presented testimony from Richard LaBrocca, Senior Director of Engineering at Gaming Laboratories International ("GLI"). The circuit court certified him as an expert to testify "as to the generally accepted practices, methodologies and protocols for forensic software analysis, compliance testing and classification of electronic games and amusement devices." The following excerpt from LaBrocca's testimony explains the evolution of what he refers to as "electronic marking devices":

[Greenetrack's counsel]: Now, when did [cards] give way, so to speak, to the development of electronic games? When did that occur?

"[LaBrocca]: ... [A]ctually starting late '80s, '90s, you started seeing electronic marking devices making their way into the field. Those devices basically replaced the paper product with a reusable product. That also assisted the players in completing certain aspects of the game.

"[Greenetrack's counsel]: And when you use the term ‘electronic marking device’ how did they first appear in the '80s and '90s, as you described?

"[LaBrocca]: They first appeared as simple portable devices that a player could check out at a bingo hall. Those devices were then given to a player, and

...