US v. Conley

• Decision Date: 22 July 1994
• Docket Number: Crim. No. 91-178.
• Citation: 859 F. Supp. 909
• Parties: UNITED STATES of America, v. John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Joseph A. Devita, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites, and William E. Rusin, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

859 F. Supp. 909

UNITED STATES of America, v.John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Joseph A. Devita, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites, and William E. Rusin, Defendants.

Crim. No. 91-178.

United States District Court, W.D. Pennsylvania.

July 22, 1994.

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Frederick W. Thieman, U.S. Atty., James R. Wilson, Asst. U.S. Atty., W.D. Pa., William D. Braun, Criminal Div., U.S. Dept. of Justice, Washington, DC, for plaintiff.

James Wymard, William Difenderfer, Anthony Mariani, Ellen Viakley, Gary Gerson, Caroline M. Roberto, Joel Johnston, Stanley Greenfield, Martha Bailor, Ray Radokovich, Carmen Martucci, Lee Markovitz, Edward J. Osterman, William Acker, Foster Stewart, Joseph Kanfoush, Carl Max Janavitz, Raymond M. Maloney, John Goodrich, Gary B. Zimmerman, Vincent Baginski, John Zagari, James Andring, Pittsburgh, PA, for defendants.

MEMORANDUM OPINION

LEE, District Judge.

Before the Court are Defendant Phillip M. "Mike" Ferrell's motions to dismiss: (1)Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion To Dismiss on the Basis of Selective Prosecution(DocumentNo. 379, in part); (2)Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion to Dismiss on the Grounds That Video Poker Machines Are De Facto Legal in Pennsylvania (DocumentNo. 379, in part); (3)Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion to Dismiss on the Ground That the Alleged Gambling Activities are De Minimis (DocumentNo. 379, in part); (4)Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion to Dismiss on the Ground that the Alleged Illegal Gambling Activity Was an Exercise of Public Authority (DocumentNo. 379, in part).

Also before the Court are the related motions seeking to assert affirmative defenses: (5)John Francis"Jack" Conley's Omnibus Pretrial Motion: Motion to Assert Good Faith Defense (DocumentNo. 374, in part); (6)Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion for Leave to Assert Affirmative Defense (DocumentNo. 379, in part).

PROCEDURAL BACKGROUND

Defendant Ferrell filed an omnibus pretrial motion, (DocumentNo. 379), which included his four motions to dismiss and his motion to assert an affirmative defense.On March 2, 1993, the Court held a hearing.At the hearing, Counsel for Defendant Ferrell introduced the testimony of Defendant Curtin.Counsel for Defendant Ferrell attempted to introduce further evidence in support of his motions.The Court sustained the Government's objection to the further evidence, holding that Defendant Ferrell's proffer did not constitute a preliminary showing adequate to warrant further evidentiary proceedings on his motions.The Court, however, indicated that Defendant Ferrell could brief the adequacy of his proffer.

Pursuant to General Order of CourtNo. 15, these motions were to have been briefed on or before May 14, 1993.No briefs were filed in the appropriate time frame.After the Government indicated that it would address the merits of the motions when Defendant Ferrell filed briefs, rather than rely on procedural default, (DocumentNo. 688), the Court ordered Defendant Ferrell to state his intentions regarding his motions.(DocumentNo. 689).No response was received by the Court.In a subsequent Order of Court, the Court indicated that Defendant Ferrell's motions "have apparently been abandoned."(DocumentNo. 700).Again, Defendant Ferrell did not respond.Subsequent events revealed an irreconcilable dispute between Defendant Ferrell and his counsel, who was later granted leave to withdraw.

Due to the importance that the Defendants place on the issues raised in Defendant Ferrell's motions, Defendants John F. "Duffy" Conley and William C. Curtin moved to adopt Defendant Ferrell's motions to dismiss, in which they had previously moved to join.(DocumentNo. 709).Over the Government's objections, (DocumentNo. 725), the Court granted in part and deferred in part the motion to adopt.(DocumentNo. 730).The Court limited DefendantsDuffy Conley and Curtin to the record made by Defendant Ferrell, but allowed them to proffer evidence of their connection to the pre-existing record.The Court deferred ruling on the request to file additional materials, pending its ruling upon the proffered evidence.(DocumentNo. 730).

DefendantDuffy Conley filed two briefs, including proffers of evidence, and Defendant Curtin moved to join in those briefs.(DocumentNos. 348-50).The Government filed a response brief.(DocumentNo. 760).

The subject of these motions arose again at a status conference held by the Court on January 27, 1994.As a result of the status conference the Court issued its Summary Order of Court dated February 3, 1994, (DocumentNo. 821), which reiterated and modified the Court's rulings from the bench at the status conference.Paragraph (4) of the Court's Summary Order of Court granted leave to any Defendant who had originally joined Defendant Ferrell's motions to dismiss to file a brief and a proffer of evidence in support of reopening the record on these motions.

DefendantDuffy Conley supplemented his previous filings, (DocumentNo. 834), and Defendant Goodwin filed his Motion to Reopen the Record.(DocumentNo. 835).The Government responded to these supplemental filings.(DocumentNo. 843).

The record before the Court consists of a Stipulation of Facts with respect to Pretrial Motions of Defendant Phillip M. "Mike" Ferrell, (DocumentNo. 509), Defendant Curtin's testimony and Defendant Ferrell's proffer at the March 2, 1993 hearing, the additional proffer made in the submissions of DefendantsDuffy Conley, Curtin, and Goodwin, and the Indictment.Although the stipulated facts are undisputed and the equivalent of found facts, the motions are being adjudicated without a hearing.The relevance of this procedural fact to the light in which the Court must view the facts in deciding the different motions will be discussed with respect to each motion.

DefendantsDuffy Conley and Curtin have indicated that three of the motions to dismiss should be treated as one motion: Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion to Dismiss on the Grounds That Video Poker Machines Are De Facto Legal in Pennsylvania (DocumentNo. 379, in part); Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion to Dismiss on the Ground That the Alleged Gambling Activities are De Minimis (DocumentNo. 379, in part); Pretrial Motions Filed on Behalf of Defendant Phillip M. "Mike" Ferrell: Motion to Dismiss on the Ground that the Alleged Illegal Gambling Activity Was an Exercise of Public Authority (DocumentNo. 379, in part).The issues raised by these motions are therefore reduced to three issues: (1) Whether gambling with video poker machines is de facto legal in Pennsylvania; and the related issue of (2) Whether the Defendants are entitled to assert a good faith defense; and (3) Whether the Government exercised impermissible selectivity in prosecuting the Defendants.

THE RECORD

Stipulated Facts

The stipulated facts, which cover the period from January 1, 1984 through September 30, 1991, are set forth as follows:

3.During the aforesaid time frame, video poker machines were present in the United States Judicial District known as the Western District of Pennsylvania, including, but not limited to the following counties: Allegheny, Beaver, Washington and Westmoreland.

4.During the aforesaid time span, these video poker machines were found most frequently, but not exclusively, in bars, lounges, taverns, restaurants, coffee shops, social halls or fraternal and veterans' organizations, laundromats and other places visited by members of the public or members of fraternal and veterans' organizations (hereinafter, collectively referred to as the "locations").

5.During the aforesaid time span, the vast majority of cities, boroughs, townships and other municipalities (hereinafter collectively, the "local governments"), imposed an annual fee or charge on all amusement devices, including video poker machines, that were placed in any location within the local government's borders.

6.The annual charge for each video poker machine for which a fee or charge was required ranged from approximately $100 to $500 in most instances.

7.The authority under which the local governments imposed the fees or charges arose from an ordinance or ordinances enacted by the governing body of each local government.

8.For the purpose of imposing such fees or charges, most of the local governments classify video poker machines as mechanical or video devices, although some local governments impose the fee or charge on the video poker machine as such.

9.To comply with an ordinance imposing such a fee or charge, the person in control of a video poker machine, or of the location in which a video poker machine is placed, normally completes an application for a video or mechanical device license or permit.The local government then collects the requisite fee or charge for each license or permit that is issued.

10.Often, the local government issues a permit or license to evidence that the annual fee or charge has been paid, which permit or license is affixed to the video poker machine itself or is posted in the location where the video poker machine has been placed.

11.During the time frame covered by this Stipulation, some of the defendants, including, but not limited to, Ferrell have paid the aforesaid

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