United States v. 103 Electronic Gambling DevicesUnited States v. 103 Electronic Gambling Devices
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
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“),
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,
Under IGRA, however, bingo and electronic aids thereto are generally permissible in Indian country. See
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 three-number 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
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.”
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, . . . .
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
The NIGC has developed regulations to refine the scope of class II gaming. One such regulation,
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
The Government‘s efforts to capture more completely the Platonic “essence” of traditional bingo are not helpful. Whatever a nostalgic inquiry into the vital characteristics of the game as it was played in our childhoods or home towns might discover, IGRA‘s three explicit criteria, we hold, constitute the sole legal requirements for a game to count as class II bingo.
There would have been no point to Congress‘s putting the three very specific factors in the statute if there were also other, implicit criteria. The three included in the statute are in no way arcane if one knows anything about bingo, so why would Congress have included them if they were not meant to be exclusive?
Further, IGRA includes within its definition of bingo “pulltabs, . . . punch boards, tip jars, [and] instant bingo . . . [if played in the same location as the game commonly known as bingo],”
Moreover,
We briefly address one of the Government‘s specific extratextual arguments as to why MegaMania is not class II bingo. The Government contends that the “ante-up” feature of MegaMania “distinguishes [it] from the game commonly known as bingo, as historically played throughout this country and indeed even today in tribal bingo facilities,” AOB at 18-19, observing that in a traditional (presumably church-hall style) bingo game, players pay a fixed price for a “session pack” of cards, which lets them play for an evening. But the Government invokes nothing other than tradition to explain precisely why the ante-up pricing method is proscribed by IGRA. As the district court noted, “there is nothing in the statute or the regulations that requires a player to pay one price up front to play the entire game.” 103 Elec. Gambling Devices I, 1998 WL 827586, at *7. Given Congress‘s and the NIGC‘s apparent intentions not to supplement IGRA‘s bingo specifications, we reject the Government‘s challenge to the ante-up feature.
All told,
B. “The Game is Won by the First Person”
As stated, IGRA defines bingo as, inter alia, a game “(III) in which the game is won by the first person covering a previously designated arrangement of numbers . . . on such cards.”
Turning to the question of whether MegaMania satisfies
As for the ultimate question of whether MegaMania is “won” by the first person covering a previously designated arrangement, assuming that in a given game of MegaMania players win several rounds of CornerMania before the straight-line game ends, it would appear that each such player has “won” by “covering a previously designated arrangement.” The first focus of this issue is nothing less than the meaning of the word “win“: Can someone “win” a game even though the other players may also “win“? That is, does “win” necessarily mean “beat“?
The answer, according to Webster‘s II New College Dictionary, is that “win” can mean “beat” but need not: That dictionary‘s first definition of “win” is ” ‘[t]o achieve victory over others in a competition or contest,’ ” Webster‘s II New College Dictionary 1264 (1995), while the second is ” ‘[t]o receive [money] as a prize or a reward for performance.’ ” Id.; see also 20 Oxford English Dictionary 361 (2d ed. 1989) (giving as one definition, “[t]o gain by effort or competition, as a prize or reward, or in gaming or betting, as a wager, etc.“). So, for example, in an instant lottery game, everyone whose scratch card entitles them to ten dollars “wins” a prize, with no effect on how many others may win or in what amount.
Because “winning” does not necessarily entail vanquishing one‘s opponents, the meaning of “win” in the statute is at worst ambiguous. In light of that ambiguity, we look for indications that Congress intended to preclude the award of multiple prizes in a single game of bingo.
The record in this case establishes that, in addition to the usual straight-line prize, some traditional live bingo games also make interim payouts to players who cover the corners of their cards; we presume those players believe that they have “won” prizes, even though the game has not ended and others may “win” as much or more. Additionally, as already stated, IGRA explicitly designates instant bingo as a class II game if it is played “in the same location” as a bingo game.
In light of the foregoing considerations, it is telling that IGRA does not state the game has to end when the first person wins anything. Had Congress intended to proscribe interim prizes, the statute could have been drafted to say that “the game ends” instead of “the game is won,” or could have included an express restriction that only one prize be given during the game.9
The sum of the matter is that the IGRA requirement that a “bingo” game be “won” by the “first player” covering a pre-designated pattern does not mean the game must end when one player does so, so that everyone else wins nothing. We conclude, therefore, that MegaMania is “won by the first person covering a previously designated arrangement of numbers . . . on [his or her] cards,”
C. House Banking Game
IGRA‘s implementing regulations designate any house banking game as class III gaming.
In MegaMania, however, the house is not a participant in the game the way it is in blackjack, for example, where the house plays a hand, and the success of the players depends on the success of the house. And the mere fact that the house nets a percentage of the players’ fees for playing certainly cannot define a “house banking” game. In any church-hall bingo game, the “house” regularly nets some portion of the money it takes in, or there would be no point in sponsoring the game. Thus, while the house does indeed earn a fixed percentage of players’ antes over time, that fact cannot shoehorn MegaMania into the definition of a house banking game set forth in § 502.11. Just because the house turns a profit on players’ deposits doesn‘t make the house “a participant in the game” that “takes on all players” and that “can win“.10
V. “Technologic Aid” or “Electronic Facsimile”
Under IGRA, class II gaming includes “the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)“,
The distinction under IGRA between an electronic “aid” and an electronic “facsimile” is one that has been litigated and decided before. When the issue arose in Spokane Indian Tribe v. United States, the court looked to the Senate Report on IGRA to distinguish between the two. See 972 F.2d 1090, 1093 (9th Cir. 1992). The Senate Report states:
[T]ribes should be given the opportunity to take advantage of modern methods of conducting class II games and the language regarding technology is designed to provide maximum flexibility. In this regard, the Committee recognizes that tribes may wish to join with other tribes to coordinate their class II operations and thereby enhance the potential of increasing revenues. For example, linking participant players at various reservations whether in the same or different States, by means of telephone, cable, television or satellite may be a reasonable approach for the tribes to take. Simultaneous games participation between and among reservations can be made practical by use of computers and telecommunications technology as long as the use of such technology does not change the fundamental characteristics of the bingo or lotto games . . . . In other words, such technology would merely broaden the potential participation levels and is readily distinguishable from the use of electronic facsimiles in which a single participant plays a game with or against a machine rather than with or against other players.
Senate Report at 9 (emphases added). Relying on the Senate Report, Spokane Indian Tribe noted that an “electronic aid” “enhance[s] the participation of more than one person in . . . Class II gaming activities.” 972 F.2d at 1093; see also Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 542 (9th Cir. 1995) (“[A]n ‘electronic aid’ to a class II game can be viewed as a device that offers some sort of communications technology to permit broader participation in the basic game being played, as when a bingo game is televised to several rooms or locations.“) (citing Cabazon Band of Mission Indians v. National Indian Gaming Comm‘n, 14 F.3d 633, 637 (D.C. Cir. 1994)). Because the Pick 6 game at issue in the case involved only “a single participant play[ing] against the machine,” the court held that it was an electronic facsimile rather than an electronic aid.
The MegaMania terminal, in contrast, does “link[ ] participant players at various reservations whether in the same or different States [thereby] broaden[ing ] the potential participation levels.” Senate Report at 9; see also Spokane Indian Tribe, 972 F.2d at 1093; Sycuan Band, 54 F.3d at 543. As such, the MegaMania terminal is not a “facsimile of any game of chance,”
The Government urges that in CornerMania players effectively do play against the machine because their winnings do not depend on those of other players. First, in CornerMania players are competing against each other either to be the first to get a corners prize (if the straight-line game has ended), or (if a corners prize has already been awarded) to get a corners prize before another player gets straight-line bingo. Second, while the Government‘s argument could have relevance were CornerMania a free-standing game, one cannot play CornerMania without playing the whole game--MegaMania--and MegaMania requires twelve players to play.
In short, the MegaMania terminal is just an electronic aid to bingo, because it “merely broaden[s] the potential participation levels.” Senate Report at 9. As such, the MegaMania terminal is class II gaming under IGRA. See
VI. The Johnson Act
The Government maintains that the MegaMania terminal, although specifically authorized under IGRA, is nonetheless an illegal “gambling device” under the Johnson Act. The Johnson Act‘s definition of “gambling device” includes slot machines (statutorily defined in painstaking detail, see
The text of IGRA quite explicitly indicates that Congress did not intend to allow the Johnson Act to reach bingo aids. The statute provides that bingo using “electronic, computer, or other technologic aids” is class II gaming, and therefore permitted in Indian country.
In short, while complete, self-contained electronic or mechanical facsimiles of a game of chance, including bingo, may indeed be forbidden by the Johnson Act after the enactment of IGRA, cf.
By so holding, we maintain fidelity to two entrenched canons of statutory construction: (i) courts should give effect to both of two statutes covering related or overlapping subjects, see Boys Markets v. Retail Clerks Union, Local 770, 398 U.S. 235, 249-50 (1970) (“accommodating” the blanket prohibition on federal court strike injunctions in labor disputes contained in § 4 of the Norris-LaGuardia Act,
. . . [T]he Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . .”
Morton v. C.R. Mancari, 417 U.S. 535, 550-51 (1974) (quoting United States v. Borden Co., 308 U.S. 188, 198 (1939)); see also Morales v. Trans World Airlines, 504 U.S. 374, 384 (1992) (“[I]t is a commonplace of statutory construction that the specific governs the general.“); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987), superseded on other grounds by the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
Finally, our decision carries out Congress‘s goal--expressed in the text of IGRA--of providing “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.”
MegaMania is class II bingo. Because the MegaMania terminal is a class II aid to bingo, we conclude that it is not an illicit gambling device under the Johnson Act.
CONCLUSION
For the foregoing reasons, Multimedia scores bingo; the judgment is AFFIRMED.
Notes
(a) Bingo or lotto (whether or not electronic, computer, or other technologic aids are used) when players:
(1) Play for prizes with cards bearing numbers or other designations;
(2) Cover numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined; and
(3) Win the game by being the first person to cover a designated pattern on such cards;
(b) If played in the same location as bingo or lotto, pull-tabs, punch boards, tip jars, instant bingo, and other games similar to bingo . . . .
[Another] commenter questioned whether the definition of bingo in the IGRA limits the presentation of bingo to its classic form. The Commission does not believe Congress intended to limit bingo to its classic form. If it had, it could have spelled out further requirements such as cards having the letters “B” “I” “N” “G” “O” across the top, with numbers 1-15 in the first column, etc. In defining class II to include games similar to bingo, Congress intended to include more than “bingo in its classic form” in that class.
. . . .
. . . Congress enumerated the games that fall within class II except for games similar to bingo. For games similar to bingo, the Commission added a definition that includes the three criteria for bingo and, in addition, requires that the game not be a house banking game as defined in the regulations. The Commission believes that Congress did not intend other criteria to be used in classifying games in class II.
§ 502 Action, 57 Fed. Reg. at 12382, 12387.Likewise, we find it unnecessary to address Multimedia‘s claim that a series of letters and advisory opinions issued by the NIGC dealing with the class II status of MegaMania provide independent grounds for affirming the district court‘s grant of summary judgment. For that reason, we deny MegaMania‘s motion to strike certain portions of the Government‘s reply brief making what MegaMania asserts are selective, misleading references to one of the NIGC letters.