United States v. Thompson

• Decision Date: 01 April 1976
• Docket Number: No. CR 75-111-BLG.,CR 75-111-BLG.
• Parties: UNITED STATES of America, Plaintiff, v. John W. THOMPSON, Jr., Defendant.
• Court: U.S. District Court — District of Montana

409 F. Supp. 1044

UNITED STATES of America, Plaintiff, v. John W. THOMPSON, Jr., Defendant.

No. CR 75-111-BLG.

United States District Court, D. Montana, Billings Division.

April 1, 1976.

Otis L. Packwood, U. S. Atty., Billings, Mont., for plaintiff.

Wade J. Dahood, Anaconda, Mont., for defendant.

OPINION AND ORDER

RUSSELL E. SMITH, Chief Judge.

The motions for judgments of acquittal made at the close of the Government's case and at the close of all of the evidence, rulings as to which were reserved, are denied.

Defendant was convicted of conducting an illegal gambling business in violation of 18 U.S.C. § 1955. That section requires for conviction proof that the alleged gambling business

(i) is a violation of the law of a State or political subdivision in which it is conducted;

(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

Defendant's motion was based upon a claim that there had been a failure of proof as to each of the required elements.

The business here involved was one in which defendant had printed serially-numbered forecast cards which listed intercollegiate and professional football games to be played on the following Saturday and Sunday. The card, in addition to showing the games, showed a point spread in each game. A player selected three to 12 teams and in effect bet that the teams selected would do better than the point spread shown on the card. If all of the teams selected won (in the sense that they did better than the point spread shown), then the player would be paid some multiple of his bet, which multiple increased with the number of games played. The card showed the multiples, varying from 6 to 300, which would be paid, based on the number of games selected, and, of course, the more games selected, the greater the multiple.

R.C.M.1947 § 94-8-401 prohibits the carrying on or operating of:

. . . any game of monte, dondo, fan-tan, tan, studhorse poker, craps, seven and a half, twenty-one, faro, roulette, pangeni or pangene, hokey-pokey, draw-poker, or the game commonly known as round-the-table poker, or any banking or percentage game, or any game commonly known as surething game, or any game of chance played with cards, dice or any device whatsoever . . . (Emphasis supplied.)

Defendant argues that the football parlay played with the described cards is not prohibited by the Montana law. There is no doubt that betting on the outcome of an athletic event is a "game of chance" (State ex rel. District Court v. Kilburn, 111 Mont. 400, 109 P.2d 1113 (1941)), and the question is whether a football forecast card is "any device whatsoever" within the meaning of the statute.

It has been generally held that where cards, papers, or blackboards are used solely for the purpose of making a record of betting they are not "devices" within the meaning of statutes using the word. See Annot., 1 A.L.R.3d 729 (1965) and Am.Jur.2d Gambling § 83 (1968). Many of the cases supporting this proposition distinguish between things such as a slot machine, which itself determines the result, and a paper, which records a bet with the result determined by some independent and uncontrolled act, such as a horserace. See State v. Shaw, 39 Minn. 153, 39 N.W. 305 (1888), wherein it was said at 307:

The betting is on the races exclusively, and the result is in no way determined by the use of the instrumentalities in question, and no additional element of chance is introduced thereby.

The football parlay card here, however, is more than a record of a bet. It...