US v. 137 Draw Poker-Type Machines & 6 Slot Mach.

• Decision Date: 14 March 1984
• Docket Number: No. C83-2670.,C83-2670.
• Citation: US v. 137 Draw Poker-Type Machines & 6 Slot Mach., 606 F. Supp. 747 (N.D. Ohio 1984)
• Parties: UNITED STATES of America, Plaintiff, v. ONE HUNDRED THIRTY-SEVEN (137) DRAW POKER-TYPE MACHINES AND SIX (6) SLOT MACHINES, Defendants.
• Court: U.S. District Court — Northern District of Ohio

606 F. Supp. 747

UNITED STATES of America, Plaintiff, v. ONE HUNDRED THIRTY-SEVEN (137) DRAW POKER-TYPE MACHINES AND SIX (6) SLOT MACHINES, Defendants.

No. C83-2670.

United States District Court, N.D. Ohio, E.D.

March 14, 1984.

Emily M. Mirsky, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff.

William L. Summers, Summers, Potts, Kampinski, Tittle & White, Cleveland, Ohio, for Walter Lazuka and Walter Music and Vending Co., Inc. Neil R. Wilson, Asst. Law Director, City of Mentor, Lake County, Ohio, for City of Mentor.

MEMORANDUM OF OPINION

MANOS, District Judge.

On June 27, 1983, plaintiff, the United States of America, filed a complaint in forfeiture against one hundred thirty-seven (137) draw poker-type machines and six (6) slot machines. The government contends that these machines are gambling devices as defined in 15 U.S.C. § 1171 and subject to forfeiture to the United States under 15 U.S.C. §§ 1172, 1173(a)(3), and 1177. The case is currently before the court on the government's motion for summary judgment. Fed.R.Civ.P. 56. For the reasons that follow, the government's motion is granted.

On or about July 14, 1982, the City of Mentor Police Department and agents of the Ohio Bureau of Criminal Investigation seized the defendant machines from Walter Lazuka and Walter Music & Vending Co., Inc., for violation of OHIO REV.CODE ANN. § 2915.02 (Page 1982), which makes it unlawful to possess a gambling device with the purpose of promoting a game of chance conducted for profit.¹ In March 1983, Walter Music & Vending Co., Inc. pleaded no contest to two (2) misdemeanor counts of violating OHIO REV.CODE ANN. § 2915.02(A)(5) (Page 1982) and paid a $10,000.00 fine. When the FBI subsequently learned that the defendant machines were to be returned to Walter Lazuka and Walter Music & Vending Co., Inc., it took possession of the machines from the City of Mentor. The government then instituted this forfeiture action pursuant to 15 U.S.C. § 1177. On August 3, 1983, Walter Lazuka and Walter Music & Vending Co., Inc. filed an answer in which they assert that they "are the sole owners and persons entitled to possession of the defendant machines." Answer at ¶ 1. They also raise three affirmative defenses: (1) that the defendant machines are not gambling devices within the meaning of 15 U.S.C. § 1171(a)(2) that the provisions of Chapter 24 of the United States Code, 15 U.S.C. §§ 1171-1178, do not apply to the defendant machines, and (3) that the defendant machines were seized without probable cause in violation of the Fourth and Fourteenth Amendments. Answer at ¶¶ 8-17. On August 22, 1983, the City of Mentor also filed an answer in which it conceded "that the United States of America has a right to the forfeiture prayed for in its Amended Complaint,"² but claimed that its own interest is superior to the interests of Walter Lazuka and Walter Music & Vending Co., Inc. Answer of the City of Mentor at ¶ 1.

Rule 56(c) of the Federal Rules of Civil Procedure governs the disposition of motions for summary judgment. It provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In addition, Rule 56(e) of the Federal Rules of Civil Procedure provides in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but 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.

See also United States v. Various Slot Machines on Guam, 658 F.2d 697 (9th Cir.1981); Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).

In the present case, the government contends that the defendant machines are subject to forfeiture under 15 U.S.C. § 1177. 15 U.S.C. § 1177 provides in pertinent part:

Any gambling device transported, delivered, shipped, manufactured, reconditioned, repaired, sold, disposed of, received, possessed, or used in violation of the provisions of this chapter i.e., 15 U.S.C. §§ 1171-1178 shall be seized and forfeited to the United States. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violation of the customs laws ... shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter....

The term "gambling" device is defined in 15 U.S.C. § 1171(a) as:

(1) 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; or

(2) 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) 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; or

(3) any subassembly or essential part intended to be used in connection with any such machine or mechanical device, but which is not attached to any such machine or mechanical device as a constituent part.

(Emphasis added). The government contends that the six slot machines are gambling devices under subsection 1171(a)(1)(A), and that the 137 draw poker-type machines are gambling devices under subsection 1171(a)(2)(B). Under 15 U.S.C. § 1172, it is unlawful "knowingly to transport any gambling device to any place in a State ... from any place outside of such State" unless the state has enacted a law exempting itself from the provisions of this section.³ Furthermore, under 15 U.S.C. § 1173(a)(3) it is unlawful "for any person ... to engage in the business of repairing, reconditioning, buying, selling, leasing, using, or making available for use by others any gambling device, if in such business he buys or receives any such device knowing that it has been transported in interstate or foreign commerce ..., unless ... such person has registered with the Attorney General." Thus, the government contends that the defendant machines are gambling devices with the meaning of 15 U.S.C. § 1171 and subject to forfeiture for violation of both 15 U.S.C. § 1172 and 15 U.S.C. § 1173(a)(3).

The burden of proof in a forfeiture action is set forth in 19 U.S.C. § 1615,⁴ as incorporated by 15 U.S.C. § 1177. Under this provision, once the government has met its burden of showing probable cause to institute the forfeiture action, the burden then shifts to the claimant to show by a preponderance of the evidence that the property was not subject to forfeiture. United States v. $22,287.00, United States Currency, 709 F.2d 442, 446 (6th Cir.1983). The probable cause that the government must show is "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. $22,287.00, United States Currency, supra, 709 F.2d at 446-47 (quoting United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980)).

As indicated previously, only gambling devices within the meaning of 15 U.S.C. § 117(a) are subject to forfeiture under 15 U.S.C. § 1177. Clearly, the six conventional slot machines constitute gambling devices within the meaning of section 1171(a)(1) since this provision specifically includes "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."⁵ See United States v. Various Gambling Devices, 368 F.Supp. 661 (N.D.Miss.1973); United States v. Three Trade Boosters, 135 F.Supp. 24 (M.D.Pa.1955). Even if a slot machine is altered so that it cannot accept coins, does not dispense coins, or is not used for gambling, it still remains a gambling device under section 1171. United States v. Three Trade Boosters, supra.

A slot machine is not a gambling device merely because it has slots—it is a gambling device because it is designed and manufactured to be used as such. A device manufactured and designed to be used as a gambling device continues to be a gambling device within the contemplation of the law even though, in fact, the device is never used for gambling purposes.

135 F.Supp. at 27 (emphasis in original). See also United States v. Various Slot Machines on Guam, 658 F.2d 697, 699 (9th Cir.1981) (§ 1171(a)(1)(B) does not require that a slot machine deliver winnings automatically). Thus, the six conventional slot machines constitute gambling devices within the meaning of 15 U.S.C. § 1171(a).

The government also contends that the 137 draw poker-type machines are gambling devices within the meaning of 15 U.S.C. § 1171(a). The defendant draw poker-type machines are electronic video devices, each of which is controlled by a computer called a microprocessor. The computer takes the place of the person who would serve as the dealer in a game of draw poker. Although the 137 machines were manufactured by several companies and bear different names such as Draw Poker, Tarok, or Castles, the internal operations are the same.

The images that appear on the video screen are those of a deck of fifty-two (52) cards containing four (4) suits—hearts, spades, diamonds, clubs—numbered ace through ten (10), and jack,...