U.S. v. Moore

• Decision Date: 21 April 2009
• Docket Number: No. 08-1177.,No. 08-1615.,08-1177.,08-1615.
• Citation: 563 F.3d 583
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darwin P. MOORE and Bruce E. Knutson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

563 F.3d 583

UNITED STATES of America, Plaintiff-Appellee, v. Darwin P. MOORE and Bruce E. Knutson, Defendants-Appellants.

No. 08-1177.

No. 08-1615.

United States Court of Appeals, Seventh Circuit.

Argued January 15, 2009.

Decided April 21, 2009.

Daniel J. Graber, Attorney (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Johanna M. Christiansen, Attorney, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant Darwin Moore.

Erika L. Bierma, Attorney (argued, Federal Defender Services, Madison, WI, for Defendant-Appellant Bruce Knutson.

Before RIPPLE, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

The time: 6 p.m. The place: Ho-Chunk casino in Baraboo, Wisconsin. The event: a drawing to determine who would walk off with $10,000. Undoubtedly, excitement was in the air. Realistically, the average schlemiel had only a .000067 percent chance of winning. But another participant in the drawing had to like his chances: Bruce Knutson had a 30 percent chance of coming up a winner. And when the winning entry form was pulled from the barrel—ta da—the winner was Bruce Knutson! The lucky winner then posed for a publicity picture, signed off on a tax form, received a check for $5,000, and pocketed $5,000 in cash. It was, we suspect, a night to remember. But all was not, as we shall see, quite as it seemed. The rest of the story explains why Knutson and his buddy, Darwin Moore, are here appealing their convictions after they were found guilty of bilking the casino out of $10,000.

This case started with Ho-Chunk's "Tax Time Blues Giveaway," a drawing, which awarded five lucky casino patrons—one every hour starting at 6:00 p.m.—with a $10,000 prize. To earn entry forms, the written rules stated that patrons had to register at the guest service booth, where they would receive their first form. After that, gamblers could get additional entry forms for every 50 points they earned at the slot machines or every hour they spent playing blackjack. Although not explicitly stated, some casino staff could also hand out extra entries at their discretion. The official rules were silent about counterfeiting entry forms. The casino accepted entries for six weeks and the drawing, as the name of the contest suggests, was held the day before the April 15 tax-filing deadline.

Knutson and Moore heard about the drawing and set about to win it. With the help of Moore's then-girlfriend, Grace Hewitt, the two hatched a plan to make their own entry forms and stuff the promotional barrels to up their odds of winning. They purchased orange stock paper to match the forms handed out by the casino and used Moore's copier to produce fake entry forms. But Moore and Hewitt were no Bonnie and Clyde. Weeks before the drawing the two split, and Hewitt decided to exact some revenge. She snitched on Knutson and Moore, telling casino authorities about the scheme, even providing them with a few of the bogus entry forms. The fake forms were easily identifiable because the watermark on the casino's form became pixelated after it was photocopied.

After receiving this tip, an investigator kept an eye on Knutson and Moore when they entered the casino and, over the course of a week, observed both men drop multiple entry forms into the drawing barrels. They would stagger their submissions, depositing the forms at different times throughout the evening.

On the night of the drawing, one of Knutson's entries was the first one pulled from the barrel. He filled out all the necessary paperwork to claim his prize and provided the casino with his social security number and drivers license number. After the drawing, Ho-Chunk's investigator went through the entries and discovered that Knutson (4,710) and Moore (4,645) together submitted 9,355 of the approximately 15,000 entry forms. So together, the two had 62 percent of the total entries in the drawing. The thousands of other participants had the other 38 percent. And according to the casino's data-base, Knutson and Moore "earned" only 23 entries through their gambling.

The Wisconsin Department of Justice eventually stepped in and sent two agents to interview Knutson and Moore. During the interview, both claimed that they had submitted only a couple hundred forms, on several occasions, explaining that they would pick up extra entry forms they found in the casino or submit forms they had received from patrons who came to the casino on tour buses. Since entrants had to be present at the drawing to claim the prize, these out-of-town patrons were presumably willing to give up their entry forms. When asked if they had manufactured their own forms, they denied doing so, emphasizing that they had not submitted any forms that were photocopied.

Knutson and Moore were eventually indicted for conspiring to violate 18 U.S.C. § 1167(b), which penalizes anyone who "abstracts, purloins, wilfully misapplies, or takes and carries away with intent to steal" money that belongs to a gaming establishment run by an Indian tribe. 18 U.S.C. § 371. The defendants waived their right to a jury trial and the case proceeded to a bench trial. The district court found both defendants guilty. Each received a sentence of 10 months. They were also ordered to pay back the $10,000.

Knutson and Moore begin by attacking the indictment. They assert that it is insufficient because, in their view, the allegations that they stuffed the barrels with counterfeit entry forms fail to state an offense. See Fed.R.Crim.P. 7(c)(1); 12(b)(3)(B). They claim they were merely trying to increase their odds of winning, which, they contend, is not illegal. They were unsuccessful in asserting this same argument in a motion to dismiss before the magistrate judge who recommended that the district court deny the motion. Receiving no objections from the defendants, the district court adopted the recommendation. A failure to object to a magistrate judge's recommendations constitutes a waiver, which would ordinarily preclude our review. See United States v. Hall, 462 F.3d 684, 688 (7th Cir.2006). But here, the government has "waived waiver" by asserting that we can review the decision de novo. See United States v. Murphy, 406 F.3d 857, 860 (7th Cir.2005).

Everything we have said so far is prelude to a pretty straightforward conclusion—the indictment is easily sufficient. An indictment need not say much to be deemed sufficient—it must: (1) state all the elements of the crime charged; (2) adequately apprise the defendants of the nature of the charges so that they may prepare a defense; and (3) allow the defendant to plead the judgment as a bar to any future prosecutions. United States v. Castaldi, 547 F.3d 699, 703 (7th Cir.2008). What's more, we look at the indictment as a whole, focusing on a practical, rather than a hypertechnical, reading of the document.

Here, the indictment notes the statutory bases for the conspiracy count, listing the elements of the crime. It also provides, with quite a bit of detail, the factual...