IS SPOOKING LEGAL? (BLACKJACK HOLE-CARD PLAY AND THE LAW)

First Basing:

Front-loading:

Spooking:

The Las Vegas District Court where Einbinder and Dalben were tried found them not guilty, based on the fact that it was the dealer's sloppy dealing style that enabled them to obtain an advantage over the house. The players were merely using their powers of observation to obtain information that would have been available to any player in Dalben's seat.

The State appealed this decision to the Supreme Court, and the not guilty verdict was ultimately upheld on the appeal.

Tony Dalben was kind enough to send me complete transcripts of the court proceedings. I've been studying these transcripts for some months now — 133 pages in total — to determine exactly what the Nevada Supreme Court found to be legal.

The actual order from the Supreme Court dismissing the State's appeal is brief and to the point:

Respondents were charged with cheating at gambling and other related felonies. The facts of the alleged offenses were essentially undisputed In particular, the evidence showed that respondent Dalben was lawfully seated at his position at the blackjack table, that he did not use any artificial device to aid his vision, and that he was able to see the dealer's "hole" card solely because of the admittedly "sloppy" play of the dealer. Respondent Dalben then communicated his information to respondent Einbinder. The district court ruled that respondents' conduct did not constitute a violation of the cheating statutes. We agree.

Cheating is defined as the alteration of the selection of criteria which determine the result of a game or the amount or frequency of payment. NRS 465.083, see Sheriff v. Martin, 99 Nev.. 336, 662, P.2d 634 (1983). We have considered the briefs and the record, and we have heard the oral arguments of counsel. We conclude that in this case the district court correctly found that respondents' conduct did not constitute cheating at gambling. Accordingly, this appeal is without merit and is hereby dismissed.

This decision indicates that the Supreme Court considered it significant that Dalben "did not use any artificial device to aid his vision, and that he was able to see the dealer's 'hole' card solely because of the admittedly 'sloppy' play of the dealer." (emphasis added) This wording of the decision explains in part why the Nevada Supreme Court may have been prejudiced against Taft and Weatherford (Blackjack Forum VI # 1), who were convicted of using a video device to view the dealer's hole card — though I still believe that Taft and Weatherford should have been found not guilty. At the time of their "crime," April 1, 1984, Nevada had no anti-device law, they were not touching or in any way altering the cards and their potential advantage was also derived from sloppy dealers.

At the time the Nevada Supreme Court upheld the district court conviction of Taft and Weatherford, January 28, 1986, I had not seen the transcripts for the Einbinder/Dalben trial. I was unaware of the fact that the Supreme Court had specifically mentioned that no "artificial device" had been used by Einbinder and Dalben. I can see now the difficulty this must have posed to Taft's and Weatherford's attorneys in defending their clients. The Einbinder/Dalben decision may have provided only weak support, if any, for hole card play as practiced by Taft and Weatherford.

Prior to receiving materials from Tony Dalben, I was also unaware of the fact that Taft's attorney — John Curtas — and Weatherford's attorney — Stephen Minagil — were the same attorneys who had initially represented Einbinder and Dalben, respectively. And although Curtas and Minagil were dismissed from the case prior to the final decision, it is apparent from the preliminary hearing transcript that their arguments in the Einbinder/Dalben case were what ultimately won this case for the defendants. My criticism of Curtas and Minagil (Blackjack Forum Vl #1) for not defending Taft and Weatherford on the basis of the Einbinder/Dalben decision was short-sighted. It's apparent to me now why Curtas' and Minigal's defense of Taft and Weatherford was a brand new ball game.

So, does the Supreme Court's decision in the Einbinder/Dalben case protect hole card players other than "firstbasers"?

Does it protect "front-loaders?"

Does it protect "spooks?"

The Supreme Court decision does not directly refer to spooking, but direct reference to this playing style was made during the District Court preliminary hearing, the transcript of which the Supreme Court used to form their decision. The date of this hearing was February 17, 1984, and at that time Tony Dalben was being represented by Las Vegas Attorney Stephen R. Minagil.

On page 48-49 of the court transcript, Minagil is arguing for his client's defense:

Minagil: " . . . I would use the analogy that two people, a husband and wife, maybe unsophisticated in gambling, and the husband is standing next to the wife and turns to her and says, ‘Gee, I saw she had a ten. Maybe we shouldn't hit this one.' Is that cheating?"

Court: "We don't have a husband and wife here that we know about. Let's say someone is sitting on the other side of the pit, slouched down in the chair and when the dealer looked at the dealer's card, the person sitting there could see the card and the person flashed the signal to the person. Is that cheating?"

Minagil: "I think so in that you have a person behind the table. That would be cheating. But these gentlemen, they sat where they are supposed to sit. They didn't use devices. And this dealer made a mistake."

Does this reference in the hearing transcript make it ill-advised for a player arrested for spooking to cite this Supreme Court decision as a legal defense of his action? Nowhere does the Nevada Supreme Court state that having an agent behind the dealer is illegal. And it could certainly be argued that such an agent, like Tony Dalben, might be "lawfully seated at his position" — albeit at a different table from the dealer, and that such an agent may be using no devices other than his powers of observation.

It seems to me that a "front-loader," who obtains his information to play his own hand, or to signal information to another player or players at his table, would likely be protected by the Einbinder/Dalben decision, assuming no "devices" — mirrors, "shiners," video, etc. — were being used to obtain hole-card information.

A front-loader who was not seated at the table, however, acting as a "spook," could be a different story. What about a front-loader who is seated at the table, but who is obviously slouching, or laying his head on the table to peek at the dealer's hole card? Part of the testimony considered by the Nevada Supreme Court, from the same hearing transcript, contained this line of questioning of Golden Nugget Director of Surveillance, William McDonnell (p. 34-35):

Minagil: "Mr. Dalben, who I believe you testified was sitting at the first base position, to observe the hole card of the dealer, he just sat there, didn't he?"

McDonnell: "That's correct."

Minagil: "He didn't get up and make any physical movement to peak at the card, did he?"

McDonnell: "Not on this occasion, no."

Minagil: "All he was using was the power of observation; is that right?"

McDonnell: "That's correct."

Minagil: "You're not aware of any rule that requires players to look away from the dealer when she's looking at the hole card, are you?"

McDonnell: "No."

Minagil: "So it's the dealer's responsibility to shield that hole card, is it not?"

McDonnell: "That's correct."

Minagil: "And if the dealer allows a player to see a hole card, she's making a mistake; is she not?"

McDonnell: Yes."

I called Dalben's former attorney, Stephen Minagil, and asked him, as a Nevada attorney, exactly how he would expect the courts to interpret the Supreme Court's Einbinder/Dalben decision, and just what obstacles this decision might present to an attorney who had to defend a player who was arrested for either spooking or front-loading.

I taped Minagil's response, and have transcribed it here with his permission:

Steven Minagil: I'm concerned that there is not much protection provided by the Einbinder/Dalben decision with regards to "spooking," i.e., employing agents not at the table. Each decision rendered by the Supreme Court is limited to its facts. In the Einbinder/Dalben decision the facts were that they were lawfully seated at the table and used no artificial devices to aid their vision. I believe those are the key facts upon which the decision is based. I see the Court making a distinction between those facts and a situation where a person is assisting a player, and the assisting person is not at the table. I'm concerned that the Court would use the rationale of Taft and Weatherford, wherein they said that using the equipment put the player in a position of superior knowledge, and therefore altered crucial characteristics of the game.

As to "front-loading," that is a person you have defined as obviously slouching or laying his head on the table to feign drunkeness, etc., in order to see the dealer's hole-card. That is a tougher question. Even though one is obviously slouching, I believe that those facts are within the parameters of Einbinder and Dalben, because that person would be lawfully sitting at the table and not using artificial devices. I'm concerned about a court still using the rationale of Taft and Weatherford, that is, by doing something in addition to merely sitting and playing, that the player is placed in a position of superior knowledge, thereby altering the crucial characteristics of the game. But I think the front-loading question is a lot tougher, that is, that the possibility of the Einbinder/Dalben decision applying to front-loading is greater. I have a real problem with the spooking example, but not so much with the front-loading example. I think the defense counsel would have a much easier time in getting the Court to sit down and think about applying the Einbinder decision in a front-loading situation than in a spooking situation.

So, if you're under the impression that the Einbinder/Dalben decision protects you as a hole-card player, be aware of the limitations of that protection. Cheating is a felony in Nevada. Don't take unnecessary chances. ♠

For more information on hole-card play and the law, see the following articles in the Blackjack Forum Gambling Library:

Professional Gamblers At Work: Interview with the Legendary Hole Card Player RC, by RWM

It's Not Paranoia If..., by James Grosjean, about his successful lawsuit against Imperial Palace Casino for backrooming.

For information on other professional gambling techniques, see the Professional Gambling Library.

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