Your Ticket to the Big House (Part I)
by Thomas B. Duffy, Attorney at Law
(From Blackjack Forum XIV #1, March 1994)
© Blackjack Forum 1994
[Ed. note: Eleven years ago, concealable blackjack computers were legal and growing in popularity. Then, Nevada outlawed them. New Jersey followed suit, passing laws against them, albeit with less harsh penalties. As more states legalized casino gambling, these computers were on the rise again. As we have stated in Blackjack Forum in the past, we believe these anti-computer laws are unconstitutional. That provides little comfort to the blackjack player, however, who may be caught using one of these devices. The cost of getting such a case into the federal courts would be substantial. In 1994, I asked New Jersey attorney Tom Duffy, who specializes in representing professional gamblers, to provide an update on the computer blackjack laws. Since then, California has made use of a concealable gambling computer a misdemeanor. However, some foreign countries still have no cheating statute regarding these devices. Before even considering play with a concealable computer, make sure to get reliable advice on the current legal situation where you are thinking of playing. — Arnold Snyder]
The recent flurry of states seeking to legalize casino gambling presents much opportunity for the skillful player. There is, however, also much risk as the political, legislative and judicial infrastructure of these states must acclimate themselves to the rather unique legal questions posed by legalized gambling. A case in point that has recently come to my attention is some recent Mississippi legislation.
Mississippi passed rather comprehensive anti-cheating statutes on April 20, 1993 (Laws 1993, ch. 488, formerly H.B. 507). For the most part, these statutes were badly needed. Apparently, Mississippi had been charging gambling cheats with ill-suited crimes such as theft and larceny which gave defendants too many avenues to wiggle out of the charges against them. Unfortunately for the readers of this magazine, this backlash includes a new law which relates to the use of computers at blackjack and other games. Additionally, the wording of these statutes calls into question the legality of practices long held to be legal in New Jersey and Nevada.
I will begin with this last point. Paragraph 2(b) of the new law (codified at Miss. Stat. Ann. §75-76-301(b) states, “It is unlawful for any person [t]o place, increase or decrease a bet or to determine the course of play after acquiring knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game….” This paragraph, like all of §301, was taken word for word from Nevada §465.070 titled “Fraudulent Acts.” Obviously, the meaning of this section turns on the word “available.” I assume that this provision was not meant to outlaw card counting; in fact, one could make a good case that the highlighted words were inserted to save card counting, and similar strategies such as handicapping, from being illegal. However, §465.070(2) is extremely inappropriate for wholesale importation to Mississippi. First, in Nevada, this section was mainly meant to address the “fixing” of pari-mutual and sports betting events. Neither of these bets is legal in a Mississippi casino. Second, a 1989 amendment added the words “increase or decrease” and “to determine the course of play” to the Nevada statute. These amendments, while also covering other crimes, were primarily aimed at “spooking” at blackjack. Once again, spooking is not possible in the Mississippi casinos — hole cards cannot be checked by hand.
We must look at the general cheating statute to get a true idea of the havoc §301(b) might wreak. Both Mississippi §75-75-307 and Nevada §465.083, as amended in 1981, provide, “It is unlawful for any person, whether he is an owner or employee of or player in an establishment, to cheat at any gambling game.” “Cheat” is defined in both statutory schemes as meaning “to alter the selection of criteria which determine: (a) The result of a game; or (b) The amount or frequency of payment in a game.” While it is not clear exactly what conduct this does cover, it is clear that there are some cheating schemes not covered by this general statute. That is exactly why there is a more specific statute. There is a theory of statutory construction, especially applicable to more specific statutes such as §301, that every word must have been put there by the legislature to effect some purpose. Many of the issues, however, addressed in §301(b) are inapplicable to Mississippi gaming. What is a judge to do? Tell the truth — that the legislature was asleep at the switch when they pilfered this particular paragraph from Nevada — or give the paragraph some meaning. Most judges will, obviously, choose the latter course of action.
Giving meaning to §301(b) in a casino environment without pari-mutuel and sports wagering broadens the inquiry concerning usually unavailable information about the outcome of a casino game from whether such information was acquired by conspiracy (e.g., spooking) or “by any trick or sleight of hand performance or by fraud or fraudulent scheme” (to quote the New Jersey cheating statute §5.12-113) to whether such information is available to all — an irrelevant inquiry where, as in blackjack, the players do not compete against each other. Furthermore, this inquiry can also be irrelevant where the players do compete against each other: all poker players base their play of the game on their “hole” cards — which are unknown to the other players. A broad interpretation of §301(b), in addition to outlawing poker as we know it, would also call into question practices which are legal in Nevada, such as front loading or even adjusting one’s play to take advantage of a card the dealer exposed in error. (I assume these irregularities cannot be seen from all player positions.)
The “device” section, §75-76-303, was lifted, word for word, from Nevada §465.075, and is likewise over inclusive of unintended activities. It states:
It is unlawful for any person at a licensed gaming establishment to use, or possess with the intent to use, any device to assist:
- in projecting the outcome of the game;
- in keeping track of the cards played;
- in analyzing the probability of the occurrence of an event relating to the game; or
- in analyzing the strategy for playing or betting to be used in the game, except as permitted by the commission.
The problem here centers around the use of the words “any device.” The New Jersey “device” statute reads “an electronic, electrical or mechanical device.” The word “device” is undefined in both the Nevada and Mississippi statutes. “Gaming device” is defined and encompasses “any … contrivance, component or machine.” Webster’s, on the other hand, uses the definition, “that which is planned out or designed; contrivance; stratagem.” Card counting is a “device” within the Webster’s definition but it is not if the Mississippi courts read the “contrivance … or machine” definition into the “device” statute.
The defendant in Sheriff of Clark County v. Anderson, 746 P.2d 643 (Nev. 1987), argued that this lack of a definition of a critical word in the statute made the entire statute constitutionally unenforceable. The trial judge agreed and dismissed the charges against Anderson. The prosecution appealed to the Nevada Supreme Court which considered the case for two years. The court held that, while the statute would be unconstitutionally vague as applied to some hypothetical defendants, it was not vague with regard to Anderson’s conduct of using “computer shoes” at blackjack. Having won a theoretical victory, the prosecutor wisely decided not to proceed with the case against Anderson.
Had Anderson been convicted, it is doubtful the statute could have withstood either direct or collateral attack in the Federal Courts. The Nevada Supreme Court’s analysis was arguably correct on the issue of vagueness. The problem is that statute is so vague it is also “overbroad”‘: a special legal term meaning it infringes on the exercise of expressive and associational rights. These “device” statutes, especially when read with companion legislation making manufacturing, selling or distributing “devices”‘ intended to be used to violate the law, violate the First Amendment right to disseminate information.
As I have stated, Webster’s includes “stratagem” (such as counting) within the definition of “device.” As such, anyone using a strategy is theoretically at risk for prosecution. Furthermore, anyone who intentionally assisted in preparing the strategist for his or her bout with the casino could be liable under the companion legislation. Is Sega at risk if the strategist learned how to count from using a video game it manufactured? Probably not. Is Peter Griffin at risk for distributing the effects of removal — to two decimal places — in his book The Theory of Blackjack? Quite possibly, especially when one considers the argument that these indices must have been intended to be fed into a “device” such as a computer because they are so complicated no human could cope with them. Finally, I leave the question of whether Arnold Snyder could be prosecuted for selling Griffin’s book to the reader to ponder.
Such an overbroad law “hangs over [people’s] heads like a Sword of Damocles.” Obviously, “the value of a Sword of Damocles is that it hangs — not that it drops. See Arnett v. Kennedy, 416 U.S. 134, 231 (U.S. Supreme Court 1972). Such a law has a “chilling effect” on Professor Griffin and Book Seller Snyder, who are both within a class of persons classically protected by the First Amendment. If this chilling effect is substantial, the law is “facially invalid.” Facial invalidity can be argued by any defendant, even someone like Mr. Anderson who was engaged in an activity that clearly could be prohibited if the statute had been properly drafted. The courts use the blunt instrument of declaring laws facially invalid to force legislatures to carefully draft laws to avoid constitutional conflicts. This tool is not significantly different from the “exclusionary rule” which forces the police to obtain evidence through legal means. In sum, I believe that the Federal courts would invalidate the Mississippi and Nevada “device” statutes because the word “device” is overbroad and, at the same time, central to the meaning of the statute — eliminating any possibility the word could be overlooked to save the statute from validity. Still, the prudent course of action, obviously, would be to avoid any activity that might come within these statutes.
I also caution players from taking too much solace from the “except as permitted by the commission” language in §303. I assume the commission has absolved our pad and pencil carrying brethren at baccarat and roulette from any liability under this statute. Given the draconian penalties for violating this section (see below), I cannot make any such assumption about card counting. This is especially true given the counter’s persona non grata status in most, if not all, casinos.
For the entrepreneurs among us, as mentioned above, I note that §75-76-309 and Nevada §465.085(1) state, “It is unlawful to manufacture, sell or distribute any cards, chips, dice, game or device that is intended to be used to violate any provision of this chapter.” The above analysis notwithstanding, it would be extremely unwise to sell computer devices in or mail them to either Mississippi or Nevada. The standard disclaimers on the sale of these devices that they are “just for fun” and “for scientific research” provide no relief. The more powerful, expensive and stealthy a device is, the harder it becomes to deny that it was not “intended” to violate the law. Furthermore, given the harsh penalties involved, no lawyer, myself included, could overlook the possibility of having his or her client testify against the manufacturer in return for a lighter sentence.
Finally, the penalties exacted for violating any of the above sections are extremely harsh. Under §75-76-311(a), first offenders can be sentenced to up to 2 years in the State Penitentiary. Subsection (b) throws the book at recidivists: sentences can run up to 10 years. Both sections provide for fines of not more than $10,000 per offense. The Nevada penalty statute is similarly bifurcated. A first offender can be sentenced to “not less than 1 year nor more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.” A recidivist loses the benefit of the disjunctive clause and must be sentenced to at least one year in the state prison and may also be fined up to $10,000.
Compare these penalties to the New Jersey “device” statute which provides for a maximum sentence of 90 days and a $500 fine for each offense — with a presumption against incarceration for those without prior criminal records. Perhaps most importantly, the New Jersey sentence, if any, would be served in the Atlantic County jail — a reasonably pleasant facility populated by pimps, petty thieves and more serious offenders who can afford good lawyers who keep them out of state prison. The Nevada state prison may provide a slightly more interesting environment. I hear the population is just about evenly divided between death row inmates and gambling cheats. The imagination runs wild thinking about the Mississippi State Penitentiary — maybe John Grisham will enlighten us about it in his next novel. Until these laws regarding blackjack computers and other devices are clarified, either by amendment or judicial interpretation, I highly recommend that one of his stories be as close as any player of even moderate skill come to the Magnolia State.
[Ed. note: Nevada’s anti-device statute has also been copied into Illinois’ and Iowa’s lawbooks.] ♠