The opinion of the court was delivered by: LUONGO
The United States has proceeded by a libel of seizure and forfeiture under 15 U.S.C. § 1171 et seq., against eleven Star-Pack Cigarette Merchandiser Machines, alleged to be gambling devices as therein defined. By stipulation (document No. 5) the libel was amended to include one hundred and one additional such machines. At the hearing, two of the defendant machines were produced and it was stipulated that those two machines are substantially identical to all of the defendant devices and that the court's decision as to one would be applicable to all of the defendant devices.
Upon pleadings and proof, including written stipulations (document No. 6) entered into prior to the hearing and oral stipulations entered into at the hearing, I find the following
1. The United States of America has instituted a libel action, alleging Star-Pack Cigarette Merchandiser Machines are gambling devices as defined in Title 15, Section 1171 of the United States Code.
2. A Star-Pack unit is a metal cabinet, 2' X 1' X 1', which has been designed by claimant with the intent to stimulate sales of its cigarette vending machines, but which can be adapted to fit on top of any vending machine.
3. On the front of each Star-Pack unit, there is a painted glass plate with painted color pictures of eight packs of cigarettes, Viceroy, Winston, Parliament, L. & M., Philip Morris, Pall Mall, Old Gold, Marlboro, and also, a picture of a simulated pack of cigarettes called "Star-Pack."
4. The defendant Star-Pack Cigarette Merchandiser Machines were manufactured and designed to operate so that when coins are inserted into a cigarette machine to which the defendant device is attached, the cigarette machine will dispense a package of cigarettes, then the lights in the defendant device will flash in irregular sequence. If the light remains lit under the Star-Pack picture, the cigarette machine will dispense a free package of cigarettes. Whether or not the light will remain lit under the Star-Pack picture and cause the cigarette machine to dispense a free package of cigarettes is determined by the internal mechanism of the defendant device by a process of random selection. Adjustments may be made on the defendant device to vary both the number of free packages of cigarettes to be delivered as well as the frequency of the occasions on which free packages of cigarettes will be delivered.
5. The defendant Star-Pack Merchandiser Machines were manufactured at the specific direction of David Rosen, Inc. by Midway Manufacturing Corporation, 10136 Pacific Avenue, Franklin Park, Illinois.
6. All of the defendant Star-Pack Cigarette Merchandiser Machines were transported in interstate commerce from Franklin Park, Illinois to Philadelphia, Pennsylvania during the month of June, 1963, and were received at Philadelphia by David Rosen, Inc.
7. All of the defendant Star-Pack Cigarette Merchandiser Machines were seized by or were surrendered to the custody of the United States Marshal for the Eastern District of Pennsylvania on October 17, 31 and November 4, 1963, pursuant to a seizure warrant duly issued by United States Commissioner Edward W. Furia on October 16, 1963.
8. At all times pertinent to this proceeding the claimant, David Rosen, Inc., was not registered with the Attorney General of the United States as a person engaged in the business of manufacturing gambling devices, or as a person engaged in the business of repairing, reconditioning, buying, selling, leasing, using, or making available for use by others any gambling device.
9. At the time of manufacture and at the time of shipment of the defendant devices from Franklin Park, Illinois to Philadelphia, Pennsylvania, each defendant device did not have permanently affixed thereto, so as to be clearly visible, any number, the name and/or trade name of ...