machines as revealed in the evidentiary material of record.
We should note at the outset that we will deal here with machines in Agent Holmes' Categories 1-4. We will consider Category 5 machines in a separate section later in this Opinion.
C. GAME CHARACTERISTICS
Some relevant characteristics are inherent in the game itself. In relation to most amusement games, the time to play a hand of video poker is extraordinarily short, only 5 to 15 seconds. Also, unlike most amusement games, a video poker player cannot extend the time of play regardless of the player's level of skill. For example, on pinball machines or Pacman, a player's manual dexterity, eye-hand coordination and experience may produce a longer game and greater enjoyment for the player. In video poker, each game has a finite time of play and no amount of skill or experience can extend play beyond that very short limit.
Indeed all the skill elements associated with the ordinary game of draw poker are conspicuously absent in the video version. In video poker there is no raising, no bluffing, no money management skills. The player's only skill is to recognize possible combinations and basic statistical probabilities. In this way a player can maximize his winnings in the short term but he cannot determine or influence the result. Even a player with minimal experience can discard the least desirable cards and retain those cards which provide the greatest likelihood for a winning combination, but the cards drawn are produced at random and only chance determines whether a player wins or loses. Furthermore, even this limited skill element is countered in the long run by what is called a retention ratio. Over time the video poker machine is programmed to retain a set percentage of all credits played, so that over the long haul even the astute player cannot defeat the retention ratio.
Unlike most amusement devices, video poker offers the potential to win incredibly large numbers of free games. Unlike video amusement games such as Pacman, which offer extended play, or pinball games which offer limited numbers of potential free games, all earned through skill in the play of the machine, video poker machines offer up to 400 free games for a single winning hand based solely on luck of the draw. Video poker machines also accumulate credits from game to game, permitting a player to accumulate a maximum of between 899 and 9,999 credits, depending on the setting of a particular machine. Such numbers are more than can realistically be played out (e.g., 900 free games at 10 seconds per game would translate to 2 1/2 non-stop hours of play), and are indicative of some value other than the entitlement to a free game.
The facts described above - the short time of play, the inability to extend play, the absence of skill elements, the existence of a retention ratio, the potential for inordinate numbers of free games - are not in dispute, though claimants may argue their import. We recognize however that various courts have found such factors to be strong indicia of a gambling device. E.g., U.S. v. 137 Draw Poker-Type Machines, 606 F. Supp. 747 (N.D. Ohio 1984), aff'd 765 F.2d 147 (6th Cir. 1985) (free games); U.S. v. Sixteen Electronic Gambling Devices, 603 F. Supp. 32 (D.C. Hawaii 1984) (time of play, free games, retention ratio); U.S. v. Two Coin-Operated Pinball Machines, 241 F. Supp. 57 (W.D. Ky. 1965), aff'd sub nom. U.S. v. H.M. Branson Distributing Co., 398 F.2d 929 (6th Cir. 1968) (free games); U.S. v. One Bally County Fair Pinball Machine, 238 F. Supp. 362 (W.D. La. 1965) (free games); U.S. v. One Bally "Barrel-O-Fun" Coin-Operated Gaming Device, 224 F. Supp. 794 (M.D. Pa. 1963), aff'd sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964) (free games, retention ration); Szybski v. U.S., 220 F. Supp. 806 (E.D. Wisc. 1963) (free games).
D. PHYSICAL FEATURES
Certain physical features of most video poker machines are also relevant to our consideration. One common element is a multiple coin feature. This device permits a player to insert more than one coin, and then wager more than one credit on a hand. For example, instead of inserting one quarter for one play of the machine as with most amusement devices, a player may insert eight quarters and wager all eight credits on one hand. In this way the player can increase his payoff, because the credits awarded for any winning combination will be multiplied by the number of credits wagered. In some machines, inserting a certain number of coins permits the player to invoke special features, such as Jokers, which may or may not improve the player's odds. In any event, multi-coin insertion and wagering allow a machine to make considerably more money in the same period of time. As stated above, such a feature is unusual in amusement devices and many courts have considered the presence of a multi-coin feature to be strong evidence that a machine was designed and intended for gambling. E.g., U.S. v. 137 Draw Poker-Type Machines, 606 F. Supp. 747, 753 (N.D. Ohio 1984), aff'd 765 F.2d 147 (6th Cir. 1985); U.S. v. Sixteen Electronic Gambling Devices, 603 F. Supp. 32 (D.C. Hawaii 1984); U.S. v. Various Gambling Devices, 368 F. Supp. 661 (N.D. Miss. 1973); U.S. v. One Bally "Barrel-O-Fun" Coin-Operated Gaming Device, 224 F. Supp. 794 (M.D. Pa. 1963), aff'd sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964). It appears that all of the subject machines were designed and manufactured with multi-coin capability, although on some machines claimants chose single coin insertion, an option permitted by the machines.
The government has suggested that another feature whose presence is indicative of gambling is a Power Interrupt Circuit (PIC). This is simply a battery pack which may prevent a machine from losing programming instructions or accounting data in the event the machine is unplugged, turned off, or otherwise loses power. The government contends that PIC's are necessary in video poker machines to prevent the loss of accounting data which facilitates payoffs. On the other hand, claimants have advanced evidence that many amusement video and pinball machines contain PIC's and that PIC's in both video poker machines and amusement devices serve perfectly legitimate functions, protecting other non-gambling data and obviating the need to reset optional features each time the machine is turned on. In light of the evidence presented, the government's argument on this point is unpersuasive, but we need not rely on that argument to determine the status of these machines.
We turn now to what some consider to be the indispensable elements of a gambling device -- the knock off switch and meter. Most video poker machines are equipped with a knock off switch which permits an attendant to quickly eliminate any number of accumulated credits, returning the machine to zero credits to await the next player's coins. This device may take many forms, from a remote control, or elaborately concealed switches, to simply unplugging the machine, but in any form it serves the simple function of permitting the operator of the establishment to quickly remove large numbers of free games from the machine in a matter of seconds.
The knock off switch is often accompanied by a meter or series of meters which tell the owner of the machine how many credits have been knocked off. In some machines the mechanical meters have been supplanted by computerized accounting features programmed into the machine's circuitry.
These features facilitate the use of video poker machines for gambling. Indeed they appear to have no other function. If a successful player exchanges his accumulated credits for cash, ordinarily being paid by the bartender, the bar owner or bartender can then remove the credits from the machine. The knock off meter or other accounting device automatically records the number of credits knocked off. When the machine's owner makes his periodic stop to empty the coin box, he can read the knock off meter or other accounting device to determine how much the bar owner paid out in winnings and to reimburse him for that amount.
These features have no parallel among most amusement devices. Ordinary amusement games do not permit a player to accumulate large numbers of credits, so there is little need for a knock off switch. The knock off meter is even more obviously related to gambling. Unless a bar owner is paying cash to players for accumulated credits and is expecting reimbursement from the machine's owner, there is no purpose in counting knocked off games. Thus the presence of one or both devices is strong evidence that a player may exchange credits for cash, i.e., that the machine is intended for gambling. E.g., U.S. v. 137 Draw Poker-Type Machines, 606 F. Supp. 747, 753 (N.D. Ohio 1984), aff'd 765 F.2d 147 (6th Cir. 1985); U.S. v. Sixteen Electronic Gambling Devices, 603 F. Supp. 32 (D.C. Hawaii 1984); U.S. v. Various Slot Machines on Guam, 658 F.2d 697 (9th Cir. 1981); U.S. v. Two Coin-Operated Pinball Machines, 241 F. Supp. 57 (W.D. Ky. 1965), aff'd sub nom. U.S. v. Branson Distributing Co., 398 F.2d 929 (6th Cir. 1968).
Although in some machines the knock off switch is as obvious as a red button on the cabinet, in others it is disguised in a more or less elaborate manner. Some machines are equipped with radio remote control. Some machines are built so that a magnet passed over a particular part of the machine will cause two wires to make contact and activate the knock off function. Other machines are equipped with a "slam switch," and the cabinet must be struck to cause two terminals to make contact. On some machines, several play buttons on the front of the cabinet must be pressed in a predetermined sequence. Other machines are equipped with what appears to be two bolts projecting from the cabinet. These bolts are wired inside the cabinet and when a quarter is used to span the gap between them, the electrical circuit is completed and the knock off function activated. Computerized accounting devices may also be disguised. Some machines require the insertion of an electrical component carried by the owner to activate the display of the accounting function.
Such elaborate disguises are unusual in most amusement games. Indeed, unless credits have some monetary value, there is little reason to disguise these features. Thus the effort to disguise these features, considered in the context of other evidence, is evidence that the subject machines are gambling devices. Cf., U.S. v. One Bally "Barrel-O-Fun" Coin-Operated Gaming Device, 224 F. Supp. 794 (M.D. Pa. 1963), aff'd sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964).
Thus, video poker machines with their inherent characteristics (i.e., short time of play, large number of potential free games, etc.) when equipped with knock off switches and meters are indisputably gambling devices in violation of the statute. See, U.S. v. 137 Draw Poker-Type Machines, 606 F. Supp. 747 (N.D. Ohio 1984), aff'd 765 F.2d 147 (6th Cir. 1985); U.S. v. Sixteen Electronic Gambling Devices, 603 F. Supp. 32 (D.C. Hawaii 1984). However, not all the machines seized in this case are equipped with knock off switches and meters. Defendants argue quite strenuously that without knock off switches and meters, the government must present evidence of actual payoffs on each machine to prove it is a gambling device.
We disagree. To accord such determinative weight to knock off switches and meters would be reverting to the talismanic approach specifically disavowed in the passage of the 1962 amendment of the Act. As discussed above, we must consider all relevant characteristics and features of the machines to determine whether they were "designed and manufactured primarily for use in connection with gambling." 18 U.S.C. § 1171(a)(2).
Several courts have held that the absence of such components is not determinative. In U.S. v. One Bally "Barrel-O-Fun" Coin-Operated Gaming Device, 224 F. Supp. 794, 798 (M.D. Pa. 1963), aff'd sub nom. Brozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964), the District Court stated:
Although these machines have no meters for recording the free plays released, a meter is not essential for the carrying on of the gambling operation. It is merely a measure employed by the owner for his protection, keeping a check on the amount the proprietor had to pay out in cash, premiums or tokens.