USA v. 103 Electronic Gambling Devices

• Decision Date: 14 June 2000
• Citation: 223 F.3d 1091
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. 103 ELECTRONIC GAMBLING DEVICES, Located at the Red Fox Casino, Laytonville Rancheria, Mendocino County, California, Defendant, CAHTO TRIBE, SHODAKI COYOTEVALLEY CASINO; GENEVIEVE CAMPBELL; SHARP IMAGE GAMING, INC., Claimants, MULTIMEDIA GAMES, INC., Claimant-Appellee. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1091

223 F.3d 1091 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. 103 ELECTRONIC GAMBLING DEVICES, Located at the Red Fox Casino, Laytonville Rancheria, Mendocino County, California, Defendant, CAHTO TRIBE, SHODAKI COYOTEVALLEY CASINO; GENEVIEVE CAMPBELL; SHARP IMAGE GAMING, INC., Claimants, MULTIMEDIA GAMES, INC., Claimant-Appellee.

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 14, 2000--San Francisco, California

Filed August 29, 2000

[Copyrighted Material Omitted]

Stephen C. Lewis, Catherine J. Depew, Special Assistant United States Attorneys, Tulsa, Oklahoma; Sean Connelly, Attorney, United States Department of Justice, Denver, Colorado, for the plaintiff-appellant.

Layn R. Phillips, Gregory R. Smith, Theodore H. Frank, Irell & Manella, Los Angeles, California, for the claimant-appellee.

Appeal from the United States District Court for the Northern District of California, D.C. No. CV-98-1984-CW; Charles R. Breyer, District Judge, Presiding

Before: Andrew J. Kleinfeld, A. Wallace Tashima and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:

This case poses the question, what is bingo? Cf. Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F. Supp. 116, 117 (S.D.N.Y. 1960) (Friendly, J., sitting by designation) ("The issue is, what is chicken?"). In particular, we determine whether an electronic game called MegaMania, manufactured and sold by Appellee Multimedia Games, Inc. ("Multimedia"), is "bingo" as that term is defined in the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. SS 27012721.

Appellant the United States thinks not. The Government claims that the terminals on which MegaMania is played are "gambling devices" within the meaning of the Johnson Act, 15 U.S.C. SS 1171-1178. The Johnson Act prohibits the possession and operation of any "gambling device", as defined in the Act, id. S 1171(a), on Indian land, see id. S 1175(a), unless authorized by a tribal-state compact, see 25 U.S.C. S 2710(d)(6). Invoking the Johnson Act, the Government brought this forfeiture action against, inter alia, some twenty odd Mega Mania game terminals located at the Red Fox Casino, an Indian gaming facility in Northern California.

Under IGRA, however, bingo and electronic aids thereto are generally permissible in Indian country. See id. SS 2703(7)(A), 2710. Multimedia asserts that MegaMania is a bingo game, and that the use of the games at the casino was therefore legal.

I. The Game

In MegaMania, players compete against each other in a single, interlinked electronic game via a network of individual computer terminals located at tribal gaming facilities throughout the country. At their respective terminals, players may make an initial purchase at 25 cents per card of up to four electronic game "cards," displayed on the video screens of each terminal.¹ A participant may play up to four cards at a time.

MegaMania does not commence until at least twelve people begin playing a minimum of 48 cards collectively. Once the game begins the players start receiving a series of threenumber draws displayed on-screen and announced through audio channels.² For each three-number draw a player must pay 25 cents per card that he or she is playing (e.g., if a player has three cards on her screen, she must pay 75 cents per draw).³ This pay-per-draw style of play is called "ante up" bingo. After a set of numbers is drawn players must press a "Daub Cards" button ("daub button") to "cover " the called numbers on the cards. When a player presses the daub button, the computer automatically covers corresponding numbers on the player's cards. After each three-number draw is displayed a player has eight seconds to decide whether to continue playing the card(s) for another draw.

When a player covers a straight line either horizontally, vertically or diagonally and declares "bingo" (by pressing the daub button) on one or more cards, every player in every facility nationwide is notified of the bingo. Once a player (or players) get(s) bingo, this straight-line game ends. Each player with bingo wins a monetary prize, the amount of which is based on the total number of cards being played in the game, the number of balls drawn since the game began, and the number of players reaching bingo simultaneously. The top jackpot on the straight-line game is $5000, awarded for a bingo achieved after the first four numbers are drawn, the earliest point at which a player can get bingo.

In addition to the traditional straight-line game, there is a "corners game" (dubbed "CornerMania"). In the corners game, each player who covers two, three, or four corners of a card gets a prize. The corners game is played continuously until the straight-line game ends, so there can be one or more CornerMania winners on each draw after the first. If no corners game prize has been awarded before the straight-line game ends, additional numbers are drawn three at a time until at least one corner prize is given out.

II. IGRA and its Implementing Regulations

In 1988, Congress adopted IGRA to provide "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. S 2702(1). IGRA places games played on Indian land into three classes: class I consists of traditional Indian games or social games played for prizes of minimal value; class II includes bingo and games similar to bingo, plus certain card games; class III is comprised of all games not in classes I or II. See id. SS 2703(6)-(8). Only if a tribe has negotiated a tribal-state compact may it run class III games on its land. See id. at S 2710(d)(1)(C). At the time the Government brought this forfeiture action, no such compact was in place between the Cahto Tribe and the State of California. Thus, for our purposes the critical question is whether MegaMania and the MegaMania terminals are class II gaming under IGRA.

IGRA defines class II gaming in relevant part as follows:

(i) the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)--

(I) which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,

(II) in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and

(III) in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards, including (if played in the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo, . . . .

Id. S 2703(7)(A). IGRA, however, explicitly excludes from Class II gaming "electronic or electromechanical facsimiles of any game of chance or slot machines of any kind. " Id. S 2703(7)(B)(ii).

As part of its initiative to deal with tribal gaming, Congress created the National Indian Gaming Commission ("NIGC") to regulate tribal gaming. The NIGC's broad powers include inspecting tribes' books and records, approving tribal-state pacts, levying and collecting civil fines, monitoring and even shutting down games, and promulgating regulations and guidelines it deems appropriate to implement IGRA. See 25 U.S.C. SS 2705-06, 2713.

The NIGC has developed regulations to refine the scope of class II gaming. One such regulation, 25 C.F.R.S 502.3, set out in the margin, for the most part adopts the language of S 2703(7)(A).⁴ Another defines "a game similar to bingo" as "any game that meets the requirements for bingo under [25 C.F.R. S 502.3(a)] and that is not a house banking game under [25 C.F.R. S 502.11]." 25 C.F.R.S 502.9. A "house banking game" is "any game of chance that is played with the house as a participant in the game, where the house takes on all players, collects from all losers, and pays all winners, and the house can win." 25 C.F.R. S 502.11.

III. Procedural History

The Government filed two in rem civil forfeiture actions: one in the Northern District of Oklahoma, and five months later, this one.

The Government filed this in rem action in May of 1998, proceeding against 103 electronic game machines located at the Red Fox Casino, Laytonville Rancheria, Mendocino County, California, including 20 MegaMania machines. The Government's complaint alleged that the games were subject to forfeiture as illegal gambling devices under the Johnson Act. Multimedia, inter alia, filed a claim and answer for the MegaMania machines. Shortly thereafter, the Government and Multimedia each filed motions for summary judgment. The district court granted Multimedia's motion, concluding that the MegaMania terminal is not a gambling device under the Johnson Act, but, instead, is a class II technologic aid to the game of bingo under IGRA. See United States v. 103 Elec. Gambling Devices, No. C 98-1984 CRB, 1998 WL 827586, at *8, *10 (N.D. Cal. Nov. 23, 1998) ["103 Elec. Gambling Devices I"].

We now consider the Government's appeal. Reviewing the district court's interpretation of IGRA and its grant of summary judgment de novo, see Alexander v. Glickman, 139 F.3d 733, 735 (9th Cir. 1998); Balint v. Carson City , 180 F.3d 1047, 1050 (1999), and viewing the evidence in the light most favorable to the Government, see Balint, 180 F.3d at 1050,⁵ we conclude, in agreement with the district court, that under IGRA, MegaMania is a legal class II bingo game, and that the MegaMania terminal is a legal class II electronic aid to bingo.

IV. The Game of Chance Commonly Known as Bingo

A. Bingo in the Abstract

Before considering whether MegaMania satisfies the three criteria for a class II bingo game set forth in 25 U.S.C. S 2703(7)(A)(i)(I)-(III), we turn to the Government's argument that these three factors are not the only criteria a game must meet to be an IGRA class II bingo...