United States v. Larry L. Masino
869 F.3d 1301
| 11th Cir. | 2017Background
- Larry and Dixie Masino owned Racetrack Bingo Inc., which ran bingo games on behalf of local charities in Florida and charged the charities lease/operation fees.
- A federal grand jury indicted the Masinos (and later superseded) on 41 counts including operating an illegal gambling business (18 U.S.C. § 1955), wire fraud, and money laundering; Count Two charged Racetrack Bingo as a gambling business “which was in violation of the laws of the State of Florida,” citing Fla. Stat. §§ 849.01, 849.02, 849.03, and 849.0931.
- The district court partially dismissed Count Two, holding that violations of the Florida bingo statute could not by themselves convert a bingo operation into an “illegal gambling business” under § 1955 for activities occurring before a 2013 amendment to Florida’s Racketeering Act.
- The government appealed the partial dismissal; Larry Masino filed a cross-appeal seeking dismissal in full (which this court later dismissed for lack of pendent appellate jurisdiction).
- The Eleventh Circuit reviewed de novo whether the indictment sufficiently alleged the state-law element of an illegal gambling business under 18 U.S.C. § 1955(b)(1)(i).
- The court concluded that some violations of Fla. Stat. § 849.0931 (e.g., diverting charitable proceeds, allowing charities to be nominal sponsors without direct involvement, or failing to return proceeds to players when required) could make a bingo business unlawful for § 1955 purposes, and reversed the partial dismissal and remanded.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Masino) | Held |
|---|---|---|---|
| Whether the indictment sufficiently alleges that Racetrack Bingo is an “illegal gambling business” under 18 U.S.C. § 1955(b)(1)(i) | The indictment alleges Racetrack Bingo violated Florida bingo and gambling statutes; some violations of Fla. Stat. § 849.0931 can render a bingo business illegal under § 1955 | A violation of the Florida bingo statute cannot convert an otherwise lawful bingo operation into an illegal gambling business; Count Two should be dismissed in full (cross-appeal) | Reversed partial dismissal: the indictment is sufficient because some violations of Fla. Stat. § 849.0931 could make Racetrack Bingo an illegal gambling business; remanded for further proceedings |
| Whether the court should exercise pendent appellate jurisdiction over Masino’s cross-appeal | N/A (government appealed dismissal) | Cross-appeal is inextricably intertwined and should be reviewed | Court declined to exercise pendent jurisdiction and dismissed the cross-appeal for lack of jurisdiction |
| Whether pre-2013 violations of the Florida bingo statute can serve as predicates for federal § 1955 prosecution | Fla. bingo violations can serve as predicate regardless of state Racketeering Act amendment timing | District court: only post-2013 violations could count due to FL racketeering amendment | Eleventh Circuit: state racketeering amendment timing is irrelevant to § 1955; pre-2013 violations can still render a business illegal under federal law |
| Whether the indictment gave sufficient notice of the state-law basis to satisfy Rule/Fourth Amendment concerns | The indictment alleges violations of specific Florida statutes and alleges an illegal gambling business, which is sufficient at the indictment stage | Masino argued insufficiency to state the essential element about state law | Held that the indictment meets the standard for alleging essential elements; government must prove at trial the state-law illegality |
Key Cases Cited
- Flanagan v. United States, 465 U.S. 259 (statutory rule against interlocutory appeals by defendants)
- Sanabria v. United States, 437 U.S. 54 (unit of prosecution under § 1955 is participation in a single illegal gambling business)
- United States v. Miller, 22 F.3d 1075 (discussion of § 1955 elements)
- United States v. Bala, 489 F.3d 334 (Eighth Circuit on when authorized gambling becomes an illegal gambling business)
- Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326 (doctrine of pendent appellate jurisdiction)
- Swint v. Chambers Cty. Comm’n, 514 U.S. 35 (standards for pendent jurisdiction in appellate context)
- Dept. of Legal Affairs v. Bradenton Group, Inc., 727 So. 2d 199 (Florida Supreme Court — interplay between bingo statute and racketeering/lottery statutes)