In April 2005, the Ho-Chunk casino in Baraboo, Wisconsin, sponsored a drawing in which one lucky winner would receive $10,000.  The rules of the drawing identified a number of ways that participants could obtain entry forms, with each new entry increasing a participant’s odds of winning.  Two participants, however, chose to circumvent the prescribed processes by photocopying thousands of entry forms and stuffing the drawing box.  By the time of the drawing, Darwin Moore and Bruce Knutson had their names on more than sixty percent of the entry forms.  Knutson won the drawing, but then faced federal criminal charges, thanks to snitching by Moore’s ex-girlfriend.  Eventually, Moore and Knutson were both convicted of theft from an Indian gaming establishment, and each received a ten-month sentence.

On appeal, the two defendants argued that the indictment was insufficient because it failed to state an offense.  They observed that the drawing rules did not expressly prohibit the submission of photocopied forms and asserted that they were merely exploiting a loophole, rather than committing a crime.  The Seventh Circuit, however, affirmed their convictions in United States v. Moore (Nos. 08-1177 & 08-1615) (Evans, J.).

The court gave the defendants’ argument short shrift, but it strikes me as a rather close case.  For it cannot be that every attempt to exploit a loophole in a privately run contest amounts to theft.  Rules are often clumsily drafted, and, at some point, the businesses that sponsor contests must bear the responsibility when they do not make their intentions clear in writing.  (An analogy might be drawn to the “puffery” rule in commercial transactions: it is not theft when a buyer has been so gullible as to rely on statements made by a seller that would not deceive ordinary buyers; generalizing the point, we might say that putative “victims” must exercise a measure of care on their own behalf before the law will label sharp practices a crime.) 

It would have been helpful, I think, for the court to have discussed what principle distinguishes lawful loophole-exploitation from criminal theft.  Off the top of my head, I would nominate: whether a reasonable person who knew what the defendant knew would have understood that his conduct was clearly prohibited by the written rules of the game.  I think that clarity is important here because punishing a person for violating the rules of a private game has the effect of making those rules a part of the criminal code.  Pursuant to the Rule of Lenity, we demand clarity in a legislative prohibition before punishing a person for its violation; the sort of clarity we demand from privately drafted prohibitions should be no less (and perhaps considerably more).

Judged by this standard, I think it is a close question whether Moore and Knutson were thieves.  In upholding their conviction, the court emphasized a familiar canon of statutory construction, “expressio unius est exclusio alterius — that is, by listing the proper avenues for receiving entry forms, one should logically infer that the casino meant to exclude other avenues.”  There is some force to the point, but I’m not sure it can really supply the requisite level of clarity for the prohibition.  Lawyers and law students will instantly recognize expressio unius as an ancient maxim, but it is far from clear that laypeople (reasonable or otherwise) actually read language this way.  Indeed, one even finds courts from time to time commenting critically on expressio unius as among the least reliable tools for divining legislative intent.  Moreover, not even the casino itself interpreted its rules so restrictively; the evidence at trial established that some casino staff members were able to hand out entry forms at their discretion, although though the rules said nothing about this possibility.  

The court also seemed to rely on the defendants’ sneakiness: they submitted their photocopied forms over a several-day period so as not to attract attention, and they lied about the forms when questioned afterwards by investigators.  But the predrawing sneakiness does not prove knowledge of illegality: even if they thought they were acting within the rules, they might still have wanted to avoid attention for fear that others would try to exploit the same loophole or that the casino would change the rules to close the loophole.  The postdrawing deception is troubling, but is not inconsistent with the defendants’ believing that their scheme was in a gray area between that which was clearly permitted and that which was clearly prohibited.  If so, should the defendants’ (possibly only after-the-fact) recognition that their conduct might have violated the rules be enough to establish their criminal liability?

Another factor that seems intuitively important, but whose legal significance was not made clear in the Seventh Circuit opinion, was the heavy volume of photocopied entries.  Would the defendants have committed theft if they had submitted only 100 entries, instead of 9,355?  Ten?  One?  Of course, if the expressio unius point is really the basis of the holding, then even one photocopied entry would be a crime. 

In addition to Moore, the other Seventh Circuit criminal cases of the past week were:

• United States v. Bermea-Boone (affirming conviction over Crawford objection and affirming use of obstruction-of-justice enhancement at sentencing).
• United States v. Boisture (affirming sufficiency of evidence in mail-fraud prosecution).
• United States v. Hill (vacating sentence because district court erroneously believed defendant was ineligible for mitigating-role adjustment).