*1 America, STATES UNITED
Plaintiff-Appellee,
v. ON MACHINES SLOT
VARIOUS Defendants,
GUAM, Shelton, Guzman
Amanda
Claimant-Appellant.
No. 79-4390. Appeals, Court
United States
Ninth Circuit. 14, 1981. Jan.
Argued and Submitted 5, 1981.
Decided Oct. Associates, Cronin, & Cronin
Stephen A. Guam, claimant-appellant. P.C., for Agana, C., for Beebe, D. Washington, W. Richard plaintiff-appellee. ALARCON, Cir DUNIWAY
Before BYRNE,* Judge. District Judges, and cuit DUNIWAY, Judge: Circuit forfeiting 9 ma- judgment Appeal from a alleged to be chines (2) and 1171(a)(1) and defined in U.S.C. § 15 U.S.C. § under subject forfeiture having violation of 15 U.S.C. for govern- to Guam. transported been judgment summary ment moved granted. motion was California, by designation. sitting Jr., Byrne, District William Matthew * The Honorable Judge District Central United States *2 I. Summary Judgment. The activate the mechanism which controls games increase of free awards thus 1171(a)(1) Section defines de- decreasing the number each time vice” “any to mean: so-called ‘slot machine’ by the replay register by one. Addition- or any other machine or mechanical device ally replay register may by be cleared part an essential of which is a drum or reel apparatus or an on/off switch located thereon, with insignia (A) which when by disconnecting on the device or may deliver, operated as the result of the power device from its source. application chance, of an element of money or (B) property, by operation Within device are two additional of which person may become entitled to meters, plays the total meter and the receive, as the application result of the replays The meter. former records the chance, an element of any money proper- number of coins inserted in the device ty. ...” and the free plays number of used in the play of the replays machine. The meter Section defines “gambling de- records the plays total free which have vice” to “any mean: other machine or me- Subtracting regis- been won. the total chanical (including, device but not limited replay tered on the meter total of to, devices) roulette wheels and similar de- coins in the regis- machine from the total signed and primarily for use plays tered on the total meter will result in connection with gambling, (A) and” in the number of games free eliminated (B) above or as above. from the being machine without used government’s The by motion is supported play. two affidavit, affidavits. by One FBI All of the transported said devices were Agent Leahy, describes the machines fol- into Guam via com- foreign interstate lows: merce after December (a) that the devices were manufac- tured outside affidavit, Green, Territory by Guam and The other FBI Agent such states, devices are not now or ever has [sic] been manufactured within Territory; my personal inspec- 5. That based on (b) the devices are described as fol- tion exteriors interiors these coin-activated, lows: mechanically-oper- machines, I following: can state the ated machines. Each device when assem- (a) Each in- machine contains slots for bled ready for use has a verticle [sic] denominations; sertion of coins of various standing housing cabinet three or more (b) operates through Each narrow cylindrical commonly drums insig- use of reels or drums with various called reels which are marked with num- them; nia on symbols. bers or Vertically disposed aon (c) Each a pay-out machine contains axis, common the reels are caused to re- tray jackpots for the return of or other volve freely player when a activates the awards; by pulling a lever affixed (d) Each machine contains a lever on side of the cabinet. power is essen- side, pulled, which when activates the
tially the impact spring- mechanical machines; loaded reel impellers.... Awards which (e) Each machine was manufactured are recorded automatically are based Guam; outside of alighment horizontal symbols [sic] (f) conspicuous Each machine contains when the reels are at rest. The awards language portions on the exterior refer- are recorded on a replay register... . awards, jackpots, ring variously money Each machine has a replay register etc. which is multi-digit counting meter which records games the awards placed or free This affidavit also before the court won. games machines, Free so photographs of four of the recorded by depressing used appropriate typical buttons of the nine. witness are not devices. The affidavit the claim- Testimony another ease Shelton, states, legal-size pages pettifoggery. ant, in reference to the one 5/2 machines: nine Pangelinan. one A second affidavit Q You manufacture ... did not facts, He, asserts, supporting too without machines; correct? these is that Point- are “Electronic *3 No, entirely. not them any A is 2/2 Maker His affidavit Machines.” that were of them have conversions Some quibble. supplemental A affidavit pages locally. done does, Pangelinan no better. He how- by is
Q these received from ever, Were allegation in re- make one factual by you? outside of Guam sponse to affidavit: Agent Green’s Yes. A not For “each machine” does example, the insertion of coins of contain slots for affidavits admission These and Shelton’s various “Each machine” denominations.” summary judg- to a are sufficient sustain jackpots not “return of does have a ment, the place upon and claimant bur- the other awards.” 56(e) imposed by Rule F.R.Civ.P.: den response, noted, however, affidavits or otherwise photo- his As the the court rule, spe- in this set forth provided must graphs show that the machines have slots there is a jack- cific facts that trays payouts receive coins and If so respond, issue for trial. he does not could pots. response, all that counsel summary judgment, appropriate if shall “Judge not up come is this: we’re with against be entered him. arguing photos. saying We’re not with the photos wrong. Govern- that are The claimant’s are insufficient affidavits any more we have ment hasn’t done than requirement. meet photos that saying We’re not these done. Shelton, affidavit, by One claimant But accurately portray machines. don’t asserts that are not any type hasn’t shown the Government are machines but “Electronic Point-Maker showing some kind of a cash photographs to support Machines.” He facts offers no floating out these ma- payout monies appears, the assertion. For all that demonstrates, 1171(a)(1)(B) As chines.” § label “Electronic is one that Point-Maker” too, pettifoggery. mere response, that applies to the in the machines described (B), enough person that a it is Under (2). FBI affidavits and in and proper- to receive become entitled Next, says he that untrue “that such it is jackpot to him in a ty. need not come devices are not now nor ever have been that court remarked tray. And when the Guam, manufactured” in that “similar” are the machines mere assertion devices have been in Guam. manufactured conclusion, and is a point-makers electronic he Significantly, say does not they asked, do in the “where affidavit[s] the 9 machines was in Guam. court to convince present facts to the Next, vertically he denies are that the reels pointmak- electronic these are court disposed on a He does not common axis. was, “Well, ers?”, we don’t reply counsel’s deny reels that the are vertical and/or why exactly specific description have a simply the axis is horizontal.' He misreads If he omitted had they pointmakers.” are affidavits as stating reels response would have “exactly,” his the word on a denies that stacked vertical axis. He exact. been power that causes the reels turn state Both Shelton mechanical and it is electrical. alleges that they had exten- have affidavits their says register,” He there is but “replay maintenance, repair experience “in sive wins he says player also that “either the machines” coin-operated operation of loses,” machines have and that some of the in their “manufac- training (Shelton), and “counter,” key be cleared a can (Pangelinan). characteristics” ture control. None of denials alle Shelton’s that: says also gations sustains his the machines Shelton claim with, have begin I attended the National Institute of To we difficulty have with Denver, Coin Machines School in Colorado opinion notion that to state an set and the Texas State Technical Institute specific forth may, facts. Be that as it we Waco, School Texas and have more that, also think the context of motion (15) than years experience fifteen in the summary judgment, expert must coin-operated machine business. up back specific his with facts. Pangelinan says: This obviously Judge was Dueñas’ view Games, Inc., am manager I of Leisure when he asked “where counsel affi- coin-operated machine business located they present davits do we facts?” As have Tamuning, Territory of Guam. I was seen, counsel admitted that weren’t formerly Manager Bally Guam Moreover, the affidavits. he made no offer Corporation which was a of Bally branch come forward with such way facts Manufacturing Company, Chicago, *4 a supplemental affidavit or otherwise. manufacturer of all the machines identi- Ap- Our view is shared the Court of (9) fied in this case as the nine Defendant peals Motors, for the D.C. Circuit. In Merit machines. Chrysler Cir., 1977, Inc. v. Corp., D.C. 666, Judge Skelly Wright, F.2d J. speaking upon my Based managerial extensive ex- court, said: perience at Bally Corporation Guam my (20) more twenty years than experi- appeal appellants attempt On to sal- ence in the coin-operated machine busi- vage opinion expert’s by relying their on ness, I have reviewed the affidavit cases applying Rule 703 of the Federal FBI Agent Lawrence L. Leahy concern- Evidence, Rules adopted in 1975. This ing (9) the nine machines identified in rule was to accepta- intended broaden the this case as “Various on Slot Machines ble of expert opinion, bases but it was not Guam.” intended, appellants argue, seem to assume, We on the foregoing, basis of the summary judgment impossible make that each of qualifies them expert an on party a produced expert whenever has an coin-operated machines. support position. its Even Rule 703 It can argued that brings into requires grounds relied on an play 702-705, F.R.Evid., rules permit expert type reasonably must be “a relied expert an to testify “in the form of an upon experts particular in a field opinion” (rule 702), objection- which “is not opinions forming upon or inferences able because it embraces an ultimate issue subject.” appellants While claim that to be (rule 704). decided” permits Rule 705 merely has applied Staelin “standard eco- expert “to testify in opinion terms of theory” nomic to “a factual basis which . prior . . without disclosure of underly- uncontroverted,” it is obvious that Staelin ing data, facts or unless requires the court unsupported assumptions makes about otherwise.” The argu- conclusion of the elasticities demand in various mar- ment is that Pangelinan’s Shelton’s and virtually ignores kets and that he statements that the gam- not impact of the dominant forces in the machines, bling and that are electronic automobile market: General Motors and point-makers, are in themselves sufficient prevents Ford. a To hold that Rule 703 to show that “genuine there is a issue as to granting summary judgment court from (F.R.Civ.P. material 56(c)), fact” thus against solely a an party who relies on defeating the summary motion for judg- expert’s that has no more basis put ment. To way, it another it can be of the out record than Staelin’s theo- argued expert’s that an opin- conclusion or speculations seriously retical un- ion would meets the requirement 56(e) of Rule party policies dermine of Rule 56. We are opposing the motion “must set forth specific unwilling impose expenses facts the fruitless that there is genuine a issue for trial.” litigation that would result from such exemption applicable to was not power a court to on the limitation there judgment. at 672-3 in this grant summary Id. the machines case omitted). (footnotes on this dispute fact was material question. summary grant We have reversed
judgment, affida- expert’s in reliance Affirmed. case, expert vit. But in that Biegh-
facts up to back his conclusion. See BYRNE, Jr., District WM. MATTHEW Cir., 1980, ler v. 633 F.2d Kleppe, Judge, dissenting: short, we hold the claimant’s that the respectfully I dissent. I believe 56(e). comply Rule affidavits do not with the motion district court should have denied show They specific “set forth facts do not judgment the Govern summary because ing is a for trial.” that there issue present not to establish ment did evidence pho the government conflict between were within the machines and the affidavit tographs statutory “gam either of the definitions genuine. not Even on motion for summa least, bling very At the the affi device.” ry compelled judgment, a court not presented to the court raise davits district give weight allegation to an is incon whether genuine issue of material fact as to trovertibly demonstrated be false. of either each meets element each summary error to was not enter a of the definitions. *5 judgment government. It would be the trial and make imposition judge, I mockery summary judgment proce- a of “gam within the of To come definition dure, to hold otherwise. must, 1171,-a under machine bling device” § Storing II. Property. of Seized Cost matter, ma either a “slot as an initial awarded, costs, The court the as 1171(a)(1)) (§ “any other chine” storage paid by amount the Marshal for of designed or mechanical device . . . provided the machines. This for 28 in connec use primarily for manufactured
U.S.C.
1920 and 1921.
was no
There
§§
(§ 1171(a)(2)). The
gambling”
tion with
error.
court,
motion for
granting
in
the
district
“there can
judgment,
that
summary
Exemption.
III.
are
that
no
these
devices,”
un
indicating
without
gambling
pro
Public Law
Guam
No. 13-135
ma
it
The
which definition
so found.2
only
exemption
vides
a limited
der
to 15 U.S.C.
finds,
however,
the
1172,
apparently
that
jority,
and the court correctly concluded
§
support
statutory
1171(a)(1)
Agent Leahy’s
Special
1.
Affidavit
The
definitions of
§
Complaint,
that
the machines
1171(a)(2)
Opinion
he states
Majority
of the
are set forth
§
at
and avers certain
§
in violation
1171
at
are
698.
“[ejach
that would
machine”
characteristics
(a)(2).
(a)(1)
place
within either
them
may
failure
The district court’s
to so indicate
Judgment,
Summary
for
In its Motion
from the
vacilla-
have resulted
Government’s
are
the machines
states that all of
Government
(a)(2)
(a)(1)
tion between definitions
however,
(a)(1), arguing,
from
within definition
“gambling
contending
that
machines were
1962,
Gambling
No.
Devices
Pub.L.
Act of
Forfeiture,
Complaint
devices.”
In the
for
1075,
87-840,
only
defi-
affected
Stat.
76
apparently proceeding under
Government was
(a)(2).
nition
1171(a)(2)(B).
alleges
It
§
that
the machines
memorandum,
Reply
the Government
In its
devices,”
meaning
“gambling
within the
contending
apparently
the machines
that
was
1171(a),
they
designed
§
“because
have been
(a)(1).
pointed
out
fell within definition
primarily
in connec-
for use
“slot,”
pay-off or
a
a
machine contained
each
oper-
tion
and are
with
devices
coins,
tray
and a drum
jackpot
return of
person may
entitled to
ation of which
become
operation
pivotal
its
and underscored
or reel
money
property.”
receive ...
(a)(1).
portions
emphasis
certain
“gambling
machines are
Kotz,
devices” within Western Bank & Trust v.
532 F.2d
(a)(1).3
definition
1252,
(9th
1976). Summary judg-
Cir.
proper “only
genu-
ment is
when
there is
The first element of
§
ine issue of
when
any material fact or
view-
‘slot
any
“so-called
machine’ or
other ma
ing the evidence and the inferences which
have,
chine” must
part,”
as an
“essential
may
light
be drawn therefrom in the
most
“drum
insignia
or reel with
thereon.” The
favorable to the
party,
adverse
the movant
Affidavit of Special Agent Leahy states
prevail
clearly
entitled to
as
each machine
a matter
has “reels which are
761,
Haughton,
marked with
law.”
symbols.”
numbers or
Gaines v.
645 F.2d
Al
though
(9th
Gross,
1981),
affidavits submitted
Austin J.
citing
Cir.
Smith v.
Shelton II
and John
challenge
(9th
1979).
604 F.2d
Cir.
There-
alignment
reels,
of the
deny
fore,
do not
the Government
had the burden
presence
on each machine of reels with
establishing
that there was no
issue
insignia. Therefore,
it
is uncontroverted
of fact as to whether the machines were
satisfy
the threshold re
“gambling
and,
evaluating
devices”
quirement of
1171(a)(1).4
whether the Government carried that bur-
den, the Court must examine the materials
II
presented in the manner most favorable to
For a “slot
machine” to be a
the claimant.
device,” however, must,
addition,
it
fall
within
one
two statutory alternatives.5
A
requires
statute
the machine ei
“(A)
deliver,
ther
... when operated may
(A),
As to
nothing
alternative
there is
result
application
of the
of an ele
affidavits,
the Government
nor elsewhere
chance,
ment
property,”
Record,
indicate,
nor do the
would
“(B) by
operation
person
of which a
demonstrate,
photographs of the machines
receive,
become entitled to
re
so
operate
machines could
sult of
application
of an element of
deliver,
out,
awards,
actually
pay
coins or
*6
chance, any money
property.”
or
15 U.S.C. which
“money
would be
or property.” The
1171(a)(1), (a)(2) (1976).
§
district court found that the machines have
designed
“reels or drums and
collect
brought by
An action
the United States
coins,”
photo
and payout
and that
the
for
subject
forfeiture is
to a motion under
graphs show that
the nine ma
Federal Rule
“each of
of Civil Procedure 56. See 6
chines do
jackpot
Moore’s Federal
contain such slots and
156.17[26],
Practice
at 56-
(2d
1980).
such,
trays,- along
863 to 64
ed.
with reels or drums.6 That
As
the burden
moving
finding,
on the
party
well as the statement
in the
to establish that
there is no
Special Agent
triable issue
Affidavit of
of material
Green
fact.
Co.,
See Adickes v. S.H. Kress
a pay-out tray
&
398
contains
for
U.S.
“[e]ach
144, 157,
1598, 1608,
142,
awards,”
90 S.Ct.
jackpots
L.Ed.2d
return of
or other
(1970).
In reviewing
grant
merely
or
that which
deni
restate
is evident from
al of a motion for summary judgment,
photographs
themselves:
the ma
Court applies the same
jackpots
test
is em
trays
chines have
in which
could be
ployed initially by
received,
machines,
operated,
the trial court.
if
Great
when
majority
“trays
necessary
3. The
requirement
discusses
and
“slots”
for
5. This
additional
also
payouts
jackpots”
or
“gambling
on the machines and cites
for machines to be
devices” under
Majority Opinion at 699.
1171(a)(1)(B).
1171(a)(2).
See
§
definition §
is, therefore,
too,
relies,
majority,
apparently
part,
4. There
no need to reach
6. The
in
the issue
of
photographs
whether the
machines
were “de-
on the
to conclude that
the ma-
signed
primarily
Majority
and
“gambling
for use in
chines are
devices.” See
gambling,”
connection with
so as to fall within
Opinion at 699.
1171(a)(2).
§
purposes of recordation and cancellation
or
mere
money
property.
deliver
The
could
trays
possible
and
does not estab
the re-
presence
games,
of slots
of free
that makes
internal
of the ma
operation
lish that
money.
demption
plays
of free
capable
dispens
of
would make them
chines
Gambling
legislative history of the
The
therein as winn
ing
property
coins or other
1962,
Devices Act of
which substituted
therefore,
Government,
ings.7
The
failed
present
1171(a)(2)
predecessor,10
for its
§
carry
burden of
its
be capable
a machine must
makes clear that
(A) of ei
are within alternative
machines
having
plays
of
redeemable
cash.11
free
(a)(1)
(a)(2).8
ther definition
1828,
H.R.Rep.
explained the
No.
which
only free
concede that
ceive ...
whereby
delivering
chines do
lated can
relied
Consequently,
machine.9
"a
person may
games,
not
money
alternative
number
recorded
have the
the Government
Where,
there
property”
B
become entitled to
of free
majority
property, but award
capability
must
(B),
a meter. As
which
games
be
here,
mechanisms
appears
must have
operating
the ma
accumu
requires
actually
Spe
re
the House Committee focused
committee bill that became the
controlled
forded the
were
Act
See
slots. & Ad.News
2d
not
subject
Sess., reprinted
indirectly,
coin-operated,
new
principally
sorts of
by
to the
players
H.R.Rep.
syndicated
and did not have drums
“pinball
provisions
an
did not
3811. Those machines
No.
[1962]
opportunity to
machines” that af
crime, which
1828,
pay
devices, possibly
U.S.Code
of
on the need
the Johnson
87th
off
directly
“regis
Cong.,
Cong.
were
Act,
great
games,”
of free
ter
number
Agent
explains,
it is
Leahy’s
cial
Affidavit
whereby
had a mechanism
meters,
usually
plays
through
operation
total
changed
meters,
the odds could be
number
replays
registers, which
replay
by inserting
played
balls
could be increased
proprietor
plays,
enable a
calculate total
off,
awarded,
replays
free
plays played
money.
games
and free
more
The
could
9. See
7.
248 F.2d
tation of
dise,
guishing, in context of tax
have the
within
of 1962 and the cases
legislative history
any
that award a few free
money
Code
awards.’
least,
amusement which offered the
chines” from “machines
are awarded
87th
nan, moreover,
accumulated).
States
averment
does not
1099, 1102,
event,
appears
that, therefore,
Cong.,
or tokens’
Cong. Ad.News
Majority
Supplemental
this controverts
v.
” [emphasis
1171(a)
capability
receiving
have
Korpan,
property.
be
1 L.Ed.2d
&
2d
from the
solely
within
Opinion
Sess.,
”);
if
states that
‘return of
owner
354
(9th
‘cash,
machines,
Hannifin v. United
Affidavit of John
alternative
1337,
See
returning jackpots.
reprinted
affidavits
make
games
U.S.
the form
at 699.
Special
Cir.
3809,
Gambling
original].
pays player
premiums,
H.R.Rep.
played purely
271, 276,
“
jackpots
1957) (machine
clear
statute,
‘[e]ach
player
do not “deliver”
3811;
Agent
(A).
(1957)
could
that devices
Devices
At the
[1962]
free
group,
No.
cf. United
no
merchan-
“slot-ma-
winnings
machine’
Both the
or other
77
Pangeli-
Green’s
(distin-
States,
not,
expec-
points
plays
1828,
S.Ct.
very
U.S.
Act
all
11. The discussion
10. Prior to its
228,
(9th
how a machine
ble
guage
927,
entitlement
read
have
parts
tical
lished
the same
general
to
showing
U.S.C.
defined
“the same words
Doyon,
[emphasis
citing
(a)(2)(B).
what is
(a)(1)
statute with
230
Cir.
the same
to that of
of a statute.”
United States
of alternative
principle
§
apply
Ltd.,
means
S.Ct.
presumption
to
(9th
1171(a)(2)
phrases
1957); Sampsell
required
have a
is in
588
Therefore, congressional
original].
Congress
Cir.
761,
meaning
could be
amendment,
(a)(1)(B).
*7
(a)(1)(B).
F.2d
manifestly
1951);
not §
devices” as
in the
ed from the machine actually without hav- establishing there were no triable ing played been off. The Leahy Affidavit issues every as to whether each and ma- states that each machines has a “to- (A) (B) chine satisfies either alternative meter,” tal plays meter,” “replays and “re- (a)(2). of definition § Because play register” and that games free can be was, therefore, summary judgment inappro- eliminated, having without been used in priate, I would reverse. play, by using either buttons that control games increase of free so awards as to decrease the number on the replay
register, or apparatus with an that clears
the replay register. Special Agent Leahy that,
states meters, through these the num-
ber of games free so eliminated can be facts, uncontroverted,
calculated. These if
would have been sufficient to find that the
Government carried its burden of demon-
strating that the machines were within al- (B).
ternative Supplemental 56(e). majority Affidavit Fed.R.Civ.P. Because the models, comprising states that three of the four four of the nine machines “expert” concludes that neither facts seized, not have support do his that the machines were not replay registers, other similar device. devices,” it holds that there *8 appears, therefore, the machines should fact,” “genuine issue as to material within grouped purposes not have been meaning 56(c). Although I of Fed.R.Civ.P. finding, court, as did the district that “there can express any decline to expert view to whether gam- be no that these unsupported by facts can create bling purview devices under the U.S.C. fact, genuine majority approach, a along issue of seq.” 1171 et court, ignores the with that of the district clearly dispute presence factual majority 13. holds that there is no registers requisite absence of the meters Pangeli- issue of fact because Shelton and each machine. forth, best, experts’ opin- nan Affidavits set at ions, facts,” “specific contemplated and not