The opinion of the court was delivered by: WEBER
The U.S. instituted this civil forfeiture action against variety of video draw poker machines, alleging that they are gambling devices prohibited by 15 U.S.C. § 1171 et seq. The machines were seized by agents of the FBI from various bars, restaurants and clubs throughout Erie County, Pennsylvania, and from the warehouses of several local distributors.
Several claimants have come forward, asserting ownership of the various seized machines. These claimants contend that their machines are not gambling devices within the meaning of the federal statute, but are in fact intended "for amusement purposes only."
The government has filed a wide-ranging motion for summary judgment with voluminous briefs, an expert's report and deposition transcript, and various and sundry affidavits and exhibits. Not to be outdone, the claimants have filed separate and often repetitive briefs, several reports and a deposition transcript from claimants' expert, and other evidentiary material. Several claimants joined in a cross motion for summary judgment. Even a video industry association has joined the fray as amicus curiae, adding little of consequence. Both sides engage in hyperbole and self righteous rhetoric. The result is a large, complex, poorly organized and often redundant pile of information and argument which we have had the misfortune of reading and re-reading in an effort to resolve this matter. Despite the sheer volume of material, the evidence of record on some matters is so woefully inadequate as to prevent resolution in favor of either side.
A number of the seized machines went unclaimed and the government subsequently moved for a default judgment which this Court granted. Shortly thereafter, claimant Leonard Kaye d/b/a Blackie's Amusement filed an objection to the motion for default and sought to amend its claim to include four of the defaulted machines.
Almost all of the 294 devices may be characterized as video draw poker machines. Although individual machines may vary in name, design or special features, all depict a video game of draw poker, with the exception of several Blackjack machines and one reel-type slot machine which we will discuss later in this Opinion.
The video incarnation of draw poker is a rudimentary game. The machine displays the time honored ranking of poker hands and the number of points the machine will award for the listed hands. The ranking of hands is grounded in laws of statistical probability, and the video draw poker machine awards points based on this scale, although it does not award true odds. The higher the rank of the hand, the higher the amount of points awarded. Of course the machine does not award points for all hands. Ordinarily the machine awards points for a pair of Aces and higher ranking hands, but does not award points for lower ranking hands, e.g., a pair of sevens.
The actual play of a game of video poker is extraordinarily simple, requiring an average of 5 to 15 seconds. Upon insertion of a quarter, the machine displays five cards on a video screen. These five cards are randomly selected by the machine from an ordinary deck of 52 cards in four suits. In an effort to improve the hand dealt to him, the player may then "discard" any of the five original cards by pressing the appropriate buttons on the machine. The machine then displays new cards to replace the ones discarded. The machine automatically evaluates this final array of five cards, ranks it as a poker hand, and awards points as indicated above.
This in all its simplicity is the sum total of the game of video poker. The object of the game is to obtain the best possible poker hand with a ranking of "a pair of Aces" or better. The machine automatically awards points for the various ranks of poker hands, with the greatest reward naturally coming for the rarest hands. Unlike an ordinary poker game, the video version has no raising, no bluffing, no money management skills. Indeed the player has no opponent. He plays only against a set schedule of point awards.
Up to now we have employed the term "points" to describe the units awarded to the player by the machine for winning poker hands. No matter whether an individual machine labels it "score," "credits," or "games," each point entitles the player to one free play of the machine. Each play of the game has one object: the accumulation of additional free games, and these free games may be accumulated from game to game so that, with a run of luck, a player may accumulate a significant number of free games.
When a machine is used as a gambling device, these free games are converted to cash by a bartender or owner of the establishment that houses the machine. A successful player in such an establishment is paid a quarter for each "credit" accumulated on the machine. The bartender or owner, having verified the number of credits and paid the player, then removes or "knocks off" the player's accumulated credits, returning the machine to zero credits to await the next player's coins.
Several of the seized machines employ images of dwarfs, or dominoes or other figures instead of an ordinary deck of cards. Although these machines assiduously avoid using the term "poker," they function just as the typical video poker machines described above. The mere substitution of video images does not change the functional characteristics of the machine. Thus, such machines as "Dwarf's Den" and "Roman Tallies" are properly classed for our purposes as video poker machines.
In the course of this litigation, the government's expert sorted the subject machines into 5 Categories, as follows:
1. Devices that were fully operational and contained knockoff meters and switches. (71 machines).
2. Devices that were fully operational and contained knockoff switches and provisions for knockoff meters. (57 machines).
3. Devices that were fully operational and contained provisions for knockoff switches and meters. (102 machines).
4. Devices that were not operational but contained knockoff meters and switches or provisions for knockoff meters and switches. (22 machines).
5. Devices which were not operational, different stages of disassembly, but may contain knockoff meters and switches or provisions for knockoff switches and meters. (42 machines).
While the parties have argued over whether particular machines belong in one category or another, both sides have employed these categories in their motions and briefs.
The government has alleged that the subject machines violate the Gambling Devices Act of 1962, 15 U.S.C. § 1171 et seq. in several respects and are therefore subject to forfeiture under § 1177 of that Chapter.
We are of course mindful of the distribution of the burden of proof under this statute. The government has the burden of establishing probable cause to believe that the subject articles are gambling devices as described in the Act. The claimants then have the burden of proving by a preponderance of the evidence that the various items are not subject to forfeiture. U.S. v. 137 Draw Poker-Type Machines, 606 F. Supp. 747, 751 (N.D. Ohio 1984), aff'd 765 F.2d 147 (6th Cir. 1985).
When the material facts are undisputed, resolution by summary judgment may well be appropriate. Id., 606 F. Supp. at 749-750; U.S. v. Various Slot Machines on Guam, 658 F.2d 697, 699-700 (9th Cir. 1981).
Claimants have argued strenuously that summary judgment is not appropriate in the present case because claimants' expert contradicts the opinions of the government's expert. Claimants argue that this battle of the experts must be waged before a factfinder at trial.
We have carefully reviewed the reports and deposition of claimants' expert and we find nothing which will preclude summary judgment. The primary facts -- the nature of the game, the presence or absence of particular features -- are virtually undisputed. Moreover, claimants' expert not only contradicts the government's expert but established law as well. For example, claimants' expert states that, in his opinion, no machine is a gambling device absent evidence of actual payoffs. (Snyder depo. at pp. 110-111, 114, 116-117, 120, 168; Warner Coin's brief at p. 25.) This is clearly contrary to established law as we will see below. Mere gainsaying by an expert, contrary to law and unsupported by fact, will not avoid summary judgment where otherwise appropriate. See, U.S. v. Various Slot Machines on Guam, 658 F.2d 697, 700-701 (9th Cir. 1981), quoting Merit Motors v. Chrysler Corp., 187 U.S. App. D.C. 11, 569 F.2d 666, 672-673 (D.C. Cir. 1977). Likewise, where the facts are undisputed, arguments over the law will not preclude summary judgment. Much of the expert opinion in this case is merely legal argument better left to counsel.
The statute defines "gambling device" at § 1171:
As used in this chapter --
(a) the term "gambling device" means --
(1) any so-called "slot machine" or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or
(2) any other machine or mechanical device (including, but not limited to, roulette wheels and similar devices) designed and manufactured primarily for use in connection with gambling, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or
(3) any subassembly or essential part intended to be used in connection with any such machine or mechanical device, but which is not attached to any such machine or mechanical device as a constituent part.
The original Act of 1951, represented by § 1171(a)(1), was aimed quite specifically at slot machines, or "one-armed bandits." This caused some difficulty in enforcement, as numerous courts held the statute to be inapplicable to those acknowledged gambling devices which simply lacked the distinguishing element of a drum or reel with insignia. E.g., U.S. v. Five Gambling Devices, 252 F.2d 210 (7th Cir. 1958); U.S. v. Three (3) Gambling Devices, Known as Jokers, 161 F. Supp. 5 (W.D. Pa. 1957); U.S. v. McManus, 138 F. Supp. 164 (D.C. Wyo. 1952). The 1962 amendment of the Act added § 1171(a)(2) and reflects Congress' intention to expand the scope of the prohibition to anticipate the continuing ingenuity of gambling device designers who had developed machines which did not fit the narrow definition of § 1171(a)(1) but which nevertheless fleeced the public with ...