Are Blackjack Computers Legal? (Part II)
FROM ET FAN:
Blackjack Computers: Your Ticket to the Big House (Part II)By Thomas B. Duffy, Attorney at Law
(From Blackjack Forum XIV #2, June 1994)
© Blackjack Forum 1994
In the first part of this article, I discussed the laws of Nevada, Mississippi (which are verbatim from the Nevada Statute) and, to a lesser extent, New Jersey on the topic of playing blackjack with the assistance of a computer. In all three states, it is illegal. In Nevada and Mississippi, however, the statute's use of the word "device" without any descriptive adjectives or definition causes the law to suffer from two serious constitutional infirmities: vagueness and overbreadth.
The law affecting blackjack computers is vague because it fails to put a person of reasonable intelligence on notice about exactly what is prohibited. (Recall Webster's includes "stratagem," like Basic Strategy, within the definition of "device.") It is also overbroad because it could possibly apply to activities protected by the First Amendment like publishing information and books about blackjack strategies.
To refresh, let's take another look at Miss. §75-76-303 and Nevada §465.075 (hereinafter "Nevada-type statute" will be used to describe this law):
The New Jersey Statute §5:12-113.1, which is not constitutionally infirm, reads:
The differences are easy to see. First, the New Jersey Statute describes the kinds of devices that are prohibited. Using your brain seems to be "O.K."
Second, the device must also be "specifically" designed for "obtaining an advantage." So using the calculator in your watch or a pad and pencil will not land you in the county jail.
Third, a warning must be posted to warn potential device users of their possible criminal liability. This is especially critical in a state, like New Jersey, where there was no law against devices until about three years ago.
Fourth, the user must be "playing a game" to offend the statute. Fifth, in a related vein, mere possession of a device, even with intent to use it, is not an offense. Finally, there is a serious question, probably unintended by the drafter, of whether the state must prove the device could actually have gained the user "an advantage."
At roulette and baccarat, the casinos seem only too happy to have the players use pad and pencil to play fallacious systems. Many casinos even use electronic devices that display the last 50 to 100 numbers at the roulette table so players can find a "pattern."
If a device were programmed with one of these fallacious systems, it would seem to be outside the statute. (In fact, if it were my casino, I would supply free batteries for these devices at the tables.) Based on this open acceptance of some "devices," it seems only fair that the state should have to prove that the algorithm used had a statistical edge over the house.
Device Laws in Other States
The statutes from the states not covered in Part I, unfortunately for them, follow the Nevada-type statute. Colorado §12-47.1-824 is another exact duplicate. Illinois §230-10/18(d)(3) and Indiana §4-33- 10-2(3) substitute the word "a" for "any" before "device." Still, these two statutes are virtually identical to the Nevada statute.
Iowa §99F.15(4)(c) begins, "Uses a device to assist in any of the following ...." and then lists the identical four subsections. This change is probably not as significant as it might seem. Possession with intent to use is very difficult to prove. As a practical matter, even under the "possession with intent" statutes, the state would probably not initiate prosecution unless they could also prove the defendant used the device. Still, the Iowa law gives defense attorneys more room to maneuver.
Furthermore, all of these Nevada-type statutes fail to define the word "device." Although they do usually define "gambling device," that definition is clearly inappropriate, having been meant to apply to slot machines, dealing shoes, playing cards and the like. The easiest way for these states to repair these constitutionally infirm statutes would be to define "device" using some of the New Jersey wording.
The penalties under these statutes are the only differences between them. Colorado imposes a 6-18 month term of imprisonment or $500- $5000 fine or both. The Illinois law carries a term of 1-3 years. Indiana imposes a sentence of at least 1 year and a fine of up to double the gain from the offense. Iowa imposes up to 5 years in prison and a fine of up to $7500 or both.
I am not admitted to practice in any of these states so I am only attempting to give you a general idea of the time you might face for using a computer in these jurisdictions. Most states have a presumption against incarceration for first offenders so you may be able to pay a (large) fine and the sentence will be suspended.
Conversely, most states also have repeat offender statutes which, in a worst case scenario, allow for life imprisonment given sufficient offenses. While not going that far, most of these statutes do have harsher penalties which are reserved for repeat offenders.
In case the reader believes that constitutional issues these Nevada-type statutes raise are the legal equivalent of 15th Century discussions about the number of angels on the head of a pin, at least one Illinois casino seems to instruct its dealers to tell players to put away basic strategy cards. I will note that, under the plain words of all these Nevada-type statutes except for Iowa's, putting away the card does not end the player's liability. He or she still "possesses" the card and has demonstrated an "intent" to use it.
Even if the player is allowed a warning, refreshing one's recollection of the card in the bathroom or the restaurant could lead to liability because the player is still "using" the device "to assist" him or her while "at a licensed gaming establishment."
This situation came to my attention via the following letter written by a subscriber to this magazine:
Indeed, I guess the casino would confiscate the young lady's shirt, lending new meaning to the term "lose your shirt." Mainly, I think this shows how stupid these vague and overbroad laws are. If it were my casino, I'd hand out (accurate) basic strategy cards at the door and at every table. Most players don't mind losing, they just don't want the other players laughing (or shouting) at them for not knowing how to play.
This kind of rude treatment of novice players is just plain bad business. Even a new player who eventually memorizes the Basic Strategy probably has a 1% (at most) chance of becoming a winning card counter, a 75%-85% chance of becoming a recreational losing player and a 10%-20% of becoming a compulsive gambler who will lose his or her life's savings, house, car, etc. to the casino.
These are odds a card counter would take any day of the week — yet the casinos chase away the player with a strategy card. At the same time, the casinos moan and groan that young people don't gamble as much as their parents or grandparents. Well, they've got to get their feet wet somewhere and, barring the outbreak of World War III, I doubt young people are going to get interested in gambling in the armed services, as prior generations did.
Computer Play in Louisiana and Other Foreign Places
Louisiana does not have an explicit statutory provision prohibiting the use of devices. La. §4:559 (for riverboats) and §4:664 (land casino), however, do contain the cheating statute, virtually identical to N.J. §5:12-113, prohibiting the use of a "fraudulent device" to win or attempt to win money.
I do not believe that Louisiana has a prayer of convicting a device user under this statute. After all, this provision was pilfered from New Jersey which had to pass the much more explicit §113.1, above, to outlaw devices. Furthermore, all of its sister states have passed specific, albeit defective, statutes in an attempt to outlaw devices. Given this great weight of authority, a general cheating statute cannot be used against predictive devices.
With all due respect to the residents of Louisiana, the state does have a reputation for putting politics before justice. I predict the political influence of the casinos in Louisiana will surpass the influence the casinos enjoy in Nevada in the near future. If the casinos want you convicted, you will probably be convicted.
Adding to this uncertainty is that "fraudulent" may not have the same meaning in Louisiana as in the other 49 states because its system of law is based on the French civil code. Still, their courts have to follow the U.S. Supreme Court and including a merely predictive device within the meaning of "fraudulent" is too vague to pass constitutional muster.
The main risk of being arrested under a general cheating or fraud statute (when there is no "device" statute), then, would be in foreign countries. While this risk would be less pronounced in a Common Law jurisdiction (any place such as the U.S., Canada, The Bahamas and Australia that follows the English system of law which is based on cases rather than civil codes), I have heard of players being charged with "fraud" for using computers in Common Law jurisdictions. Under the Common Law, fraud or deceit had 5 elements: 1) a false representation; 2) knowingly made by the defendant; 3) intended to induce reliance on the part of the victim; 4) reasonable reliance on the falsity by the victim; 5) loss to the victim from the reliance. For a criminal conviction, all 5 elements must be proven beyond a reasonable doubt.
Although a good argument could be waged for the defendant on all 5 elements, Elements 2, 3 & 5 will be conceded: the player knows about the use of the computer; such use is intended to create the impression, given the unusual plays computers often make, that the player is a sucker and not a winning player; if the player wins, the casino has lost money. On Element 1, the state will claim that the player walks up to the table and presents himself as a human being when he is, in fact, a virtual automaton.
This argument would carry some weight if the casino had the player sign a statement that he or she was unaided. Posting a sign that computers were prohibited by house rules would not help because disregarding unilaterally imposed rules does not create a "false representation."
On Element 4, the state faces a very uphill fight. The casinos know about the existence of computers that can beat their games. Further, they know these devices can be concealed so that it is virtually impossible to tell a person is wearing one. Given these facts, it is not reasonable for the casino to assume that every person who sits down at a table is unaided by a device.
Be warned, though, that any jurisdiction, including Common Law jurisdictions, could have different elements for this offense. Under other systems of law, these elements could be totally different or the prosecutor may not have to prove the case beyond a reasonable doubt.
Frequent variations are the elimination of reasonable reliance on the part of the victim or substituting a negligence standard for the knowledge requirement in Element 2. The former variation is particularly significant because I have identified it as the best argument for the device user in the above analysis.
Blackjack Computers and Other Devices on the Indian Reservations
I make no representation about being expert about Indian law. I have read a (large) book on the subject in which the author kept emphasizing how confusing and uncertain the law in this area is.
If I recall, the U.S. Supreme Court has made three major flip-flops about the extent of Native American jurisdiction on their reservations. What I can tell you is that the Federal Indian Gaming Act does not prohibit such devices, but then it does not prohibit cheating at the games either.
This messy area of jurisdiction over the games was left to be ironed out in gaming compacts between the Native American Tribes and the state in which their casino is located. My impression is that all the tribes turn cheats over to the state for prosecution under state law.
Most, if not all, of these states have not passed anti-cheating statutes, like N.J. §5:12-113, let alone anti-device statutes. As a result, the state would probably charge the device user with theft by deception (which does not include Element 4, above) or some other fraud analog.
I believe most prosecutors and judges would laugh this charge out of court. They would ask: Where's the misrepresentation? Did the casino at least put a sign up that computers were prohibited? (On this point, I would like to hear from readers about any such signing at Indian casinos.) Still, there is a risk of prosecution and conviction, mainly due to political factors à la Louisiana.
I have tried to put most of the applicable caveats in the body of this article. The main issue I wish to warn the reader about is that I have not studied the casino regulatory body's rules for any of the jurisdictions above with the exception of New Jersey, Nevada and Mississippi.
These rules (as opposed to laws) can have the force of law if the legislature so chooses. It is possible the legislature has granted regulators the power to define some offenses in these rules. See, e.g., Colorado § 12-47.1-302(g) (can define "[a]ctivities which constitute fraud, cheating, or illegal or criminal activities"). I can tell you that in the three states I have studied, the regulators have no such power to define criminal offenses.
As for using "devices" on Indian reservations and in foreign countries, there are just so many possibilities no general rule could apply. I highly recommend a consultation with a gaming attorney who is familiar with these issues. If you go to a general practitioner, you will end up paying hundreds of dollars for attorney's time just to get the attorney up to speed.
Even if a gaming attorney is not familiar with the jurisdiction in question, he or she will be able to direct a research attorney from that jurisdiction to relevant sources of law, saving time and money. Furthermore, the research attorney will typically do the work at a professional courtesy rate (yes, I've heard all the shark jokes), saving the client additional money. If you would like me to provide such a consultation, feel free to call me at (609) 646-4100.
If you do not play for high enough stakes to make such a consultation worthwhile, my best advice is to leave the blackjack or other type of gambling computer at home when abroad.
First, you can still play with your brain and win a goodly fraction of what you could win with the computer. Second, you will be free from risk of arrest and prosecution, allowing you to enjoy your vacation. Third, you won't have the nosy customs people thinking the computer contains accounting information for the Colombian Drug Cartel. In any case, good luck with or without a "device."
Thomas Duffy is a New Jersey attorney who specializes in representing players versus casinos. ♠
|© 2004-2005 Blackjack Forum Online, All Rights Reserved|