State v. Rousseau
| Decision Date | 26 December 2000 |
| Citation | 34 S.W.3d 254 |
| Parties | (Mo.App. W.D. 2000) . State of Missouri, Appellant, v. Markland S. Rousseau, Respondent. WD58158 Missouri Court of Appeals Western District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. Justine E. Del Muro
Counsel for Appellant: Rebecca Martin Rivers
Counsel for Respondent: Thomas J. Bath, Jr.
Opinion Summary: The State appeals the circuit court judgment dismissing the three-count felony indictment against Markland S. Rousseau, charging him with three instances of giving false testimony before the Missouri Gaming Commission concerning his involvement in the development of a riverboat casino in Kansas City, Missouri, in violation of section 313.550.3.
AFFIRMED.
Division IV holds:
The State claims the trial court erred in dismissing the indictment as being fatally defective for failing to allege an essential element of the crime of giving false testimony before the Commission in violation of section 313.550.3, because to establish such a violation the court erroneously interpreted that section as requiring proof that Rousseau gave false testimony before the Commission concerning horse racing, rather than excursion gambling boats. The State relies on the current definition of "commission" found in section 313.500(2), RSMo Cum. Supp. 1995, to contend that the legislature intended that false testimony before the Commission on any matter would be a violation of section 313.550.3. Section 313.550.3, RSMo 1994, reads: "Any person who testifies falsely under oath in any proceeding before, or any investigation by, the commission, its secretary, or the stewards, upon conviction, shall be guilty of a class D felony." This statute is part of a statutory scheme within Chapter 313 to separately regulate the four gaming activities allowed in Missouri.
While some of the statutes comprising Chapter 313 have been amended since their enactment, the legislative scheme of grouping the licensing and regulatory statutes and penalty provisions by the gaming activity involved nevertheless remained intact every time they were changed. At the time section 313.550.3 was enacted, there can be no dispute that, given the title of the act of which it was a part, "AN ACT . . . for the purpose of regulating pari-mutuel wagering on horse racing . . .," and the then definition of "commission" in section 313.500(2), RSMo 1986, as the "Missouri horse racing commission or its designate," it applied only to false testimony before the Missouri Horse Racing Commission concerning matters of horse racing. Section 313.550.3 has never been amended. The only amendment affecting its application was the 1995 amendment to the definitional section, section 313.500(2), RSMo Cum. Supp. 1996, amending the definition of "commission" to the "Missouri gaming commission." However, this same definition was previously enacted in 1993 for bingo, section 313.005(3), and excursion gambling boats, section 313.800(4), as part of legislation creating the Commission, section 313.004, RSMo Supp. 1994. Thus, it appears that these definitional amendments were intended by the legislature to simply reflect the creation of the Missouri Gaming Commission and the extent of its powers and were not done to extend the application of section 313.550.3 to matters other than horse racing, as the State contends.
Next, this Court notes a clear intent by the legislature in section 313.802 that the provisions concerning excursion gambling boats are to be separate and distinct from similar provisions affecting the other gaming activities. This Court further notes that section 313.550.1 authorizes the Commission to issue subpoenas, as do sections 313.325 and 313.805(10). Because there was no need for three separate statutes governing the same power, the legislature did not intend any overlap among the various statutory provisions within each type of gaming activity.
Last, this Corut is convinced of the correctness of this holding due to the legislature's passage of Senate Bill 902 this past session, wherein it amended section 313.830.4(15) to provide that: "A person commits a class D felony, and in addition, shall be barred for life from excursion gambling boats under the jurisdiction of the commission, if the person . . . [k]nowingly makes a false statement of any material fact to the commission, its agents, or employees." This, of course, covers the alleged criminal acts with which the State charged the respondent under section 313.550.3. Thus, if, as the State contends, section 313.550.3 already covered Rousseau's alleged acts, there would have been no reason for the legislature to have enacted section 313.830.4(15). Because this Court interprets section 313.550.3 as only applying to false testimony before the Missouri Gaming Commission concerning matters of horse racing, the trial court was correct in dismissing the indictment as failing to allege facts essential to establishing a violation of section 313.550.3 as charged.
The State of Missouri appeals from the judgment of the Circuit Court of Jackson County dismissing the three-count felony indictment against the respondent, Markland S. Rousseau, charging him with three instances of giving false testimony before the Missouri Gaming Commission (Commission) concerning his involvement in the development of a riverboat casino in Kansas City, Missouri, in violation of section 313.550.3.1
In its sole point on appeal, the State claims that the trial court erred in dismissing the indictment against the respondent as being fatally defective for failing to allege an essential element of the crime of giving false testimony before the Commission in violation of section 313.550.3, because, to establish such a violation, the court erroneously interpreted that section as requiring proof that the respondent gave false testimony before the Commission concerning horse racing, rather than excursion gambling boats.
We affirm.
In November 1992, the Port Authority of Kansas City, Missouri, solicited offers from gaming companies interested in building a riverboat casino on one of two sites located within the city limits of Kansas City on property controlled by the Port Authority, designated as site A and site B. Three gaming companies, Promus Corporation (Promus), Boyd Gaming Corporation (Boyd), and Hilton Hotels Corporation (Hilton), responded to the Port Authority's solicitation.
In his capacity as vice president in charge of gaming development for Hilton, the respondent was dispatched to Kansas City in December 1992 to evaluate gaming opportunities and develop a gaming proposal to present to the Port Authority. The proposal was to include, inter alia, an outline of "Hilton's commitment to minority participation in the construction and operation of the [proposed] casino, minority ownership in the casino, and the funding of social minority grants in Kansas City to assist problem gamblers, minority businesses and other organizations actively assisting minorities." With respect to such grants, the respondent met with numerous members of the minority business community, including Elbert Anderson, the president of the Port Authority.
After much research and consideration, Hilton submitted a proposal for site B, but not site A. Both Promus and Boyd proposed building a casino on site A, but not site B. On January 12, 1993, the Port Authority, in a four-to-three decision, voted to accept Hilton's bid. The deciding vote in favor of Hilton was cast by Anderson. Thereafter, the respondent and Hilton's attorneys began negotiating the specific terms of the development agreement with the Port Authority. However, it soon became apparent that site B was unsuitable for construction due to various concerns, such as hazardous wastes, underground electrical conduits, and delicate brick-lined sewers. After Hilton proposed changing their gaming development from site B to site A, Boyd and members of the Kansas City city council became concerned that Hilton had executed a "bait and switch" with respect to its proposal for site B. Consequently, negative publicity and media coverage ensued, and talks between Hilton and the Port Authority began to break down, as Anderson became concerned that Hilton did not have the necessary leadership to continue with the project.
In light of the problems with the project, the respondent met with Bill Black, a prospective minority investor in Hilton's casino project, and Anderson at a restaurant in Kansas City in early February 1993 to discuss their respective concerns. According to the State, at this meeting, the respondent thanked Anderson for helping Hilton acquire the Kansas City bid and asked him what he personally wanted in return for his continuing support. Anderson stated that he wanted Hilton to fund a seminar/fashion tour in the amount of $1,000,000 to be conducted in conjunction with the Black Expo, to which the respondent agreed. As a result of this agreement, Anderson understood that his vote on any future developments as to Hilton's casino, including a change to site A, had been "financially secured."
On February 4, 1993, Black sent a letter to the respondent setting forth a proposal for a seminar/fashion tour called Savoir Faire2 to be funded by a "corporate sponsorship fee" commitment by Hilton of $250,000 per year for five years. Accordingly, on February 25, 1993, at the direction of the respondent, a provision was placed in the Development Agreement concerning funding of "social/minority grants" in the amount of $250,000 per year for five years, subject to Hilton's being licensed in Missouri and construction of the riverboat casino on site A. Shortly thereafter, before the Development Agreement was finalized,3 the respondent left his employment with...
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