A realistic look at the question would also lead to the same conclusion. At the hearing the Government called as its principal witness a Mr. Wayne Neyens, who qualified as an expert in the field of coin-operated amusement and gambling devices. He testified that normal amusement devices return only three free plays per game and will accumulate no more than ten to fifteen at a time. On the other hand, the machines before the Court can return up to 100 free games for each game played and will accumulate 295 at one time. This feature is more compatible with gambling than with amusement. Moreover, amusement devices, unlike the machines involved here, contain no knock-off mechanism and each game won must be played off separately to return the machine to zero.
In the recent case of Szybski v. United States, 220 F.Supp. 806 (E.D.Wisc.1963), the Court in considering this feature stated:
'In addition, the number of free games obtainable was so great that to assume that they were the sole reward for proficiency on the machines would have been unrealistic. It was far more reasonable to assume that free games won but not played were redeemable in cash, since players leaving the machines without having played all the free games they had won would be abandoning something of value.'
This is the assumption and conclusion we make here.
This feature, in conjunction with the fact that these machines had knock-off circuits operable at the time of the confiscation; that they had buttons that could be used to release free plays, and the fact that both contained two bolts similarly placed and spaced which would 'knock-off' the machine if proper contact was made, leads inescapably to the conclusion that they were designed and constructed in such a way that they might entitle the person playing them to receive some cash, premiums, merchandise or tokens. The machine itself is designed to conduct or control a gambling transaction with its patrons.
The Government's expert, Mr. Neyens, was questioned about the coin divider in the machine and testified that in his opinion the purpose of the coin divider was 'to divide the money in such a ratio so the storekeeper can pay off to the player the amount of money the player has coming.' He stated that a coin divider is a substitute for a meter to record the number of games knocked off. However, Mr. Edward Drouse, one of Mr. Brozzetti's employees who installed and serviced the machines, testified that the coin dividers 'were on the machines when we bought them, but we never used them.' He said that he personally blocked the dividers on these two machines by the insertion of a wad of paper and that this made the dividers inoperable. There is nothing in the record that would warrant disbelief of this contention. Thus, although the coin dividers may normally satisfy the functions suggested by the Government, since they were inoperable here, their physical presence is of little consequence and, as a result, was not considered in the determination of the questions involved here.
The claimants attempt to explain away the bolts on the side of the machines by testimony that people playing the machines drill holes in the side of the machines and insert wires to trip the scoring mechanisms and thereby win free games in that manner. Claimants contend that the bolts were merely inserted to block up holes so drilled by a player. If persons are willing to drill holes into machines of this type in order to win free games and the mechanism must be protected by metal plates, the Government contends, and properly so, that this is evidence that the machines are gambling devices. No one is apt to perform an elaborate drilling operation to operate a five-cent amusement machine free, whereas, if cash payoffs are being given, a strong incentive to beat the machine is easily understandable.
From a consideration of all the evidence presented and based on the arguments presented by both sides, it is my conclusion that the features, characteristics and functions of these machines are such that they may deliver or entitle the players to receive cash, premiums, merchandise or tokens. Thus they are gambling devices as defined by 26 U.S.C. § 4462(a)(2)(A), and since the tax imposed on gambling devices by 26 U.S.C. § 4461(a)(2), has not been paid, they are properly condemned and forfeited to the United States pursuant to 26 U.S.C. § 7302.
It would seem now that the only question left to be answered is whether the machines were illegally seized and, if so, whether this would have any effect on their forfeiture. Under the holding of the United States Court of Appeals for the Third Circuit in United States v. Plymouth Coupe, 182 F.2d 180 (1950), there might have been some problem. However, on October 7, 1963, the Third Circuit expressly overruled the Plymouth Coupe case in United States v. $ 1,058.00 in United States Currency, Nathan Granoff, Claimant, 323 F.2d 211 (3d Cir. 1963), where it was held that 'Contraband, although unlawfully seized, may nevertheless be forfeited.' In so holding, the Circuit Court quoted the doctrine pronounced in the case of the United States v. One Ford Coupe, 272 U.S. 321, 47 S. Ct. 154, 71 L. Ed. 279 (1926), where the Supreme Court, in addressing itself to an analogous question, stated:
'It is settled that where property declared by a federal statute to be forfeited because used in violation of federal law is seized by one having no authority to do so, the United States may adopt the seizure with the same effect as if it had originally been made by one duly authorized.'
The overwhelming weight of authority in the Circuits holds that a warrant is unnecessary in the enforcement of an action for forfeiture. See, e.g., Interbartolo v. United States, 303 F.2d 34 (1st Cir. 1962); United States v. Carey, 272 F.2d 492 (5th Cir. 1959); United States v. One 1956 Ford Tudor Sedan, 253 F.2d 725 (4th Cir. 1958); Sanders v. United States, 201 F.2d 158 (5th Cir. 1953); United States v. Pacific Finance Corporation, 110 F.2d 732 (2d Cir. 1940); Bourke v. United States, 44 F.2d 371 (6th Cir. 1920). These cases are but a sampling, Circuit by Circuit, of many others to the same effect.
Accordingly, having concluded that the machines involved herein are gaming devices subject to seizure and forfeiture, the relief prayed for by the Government will be granted.
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