{"id":4947,"date":"2009-04-25T15:44:12","date_gmt":"2009-04-25T20:44:12","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4947"},"modified":"2009-04-25T15:48:26","modified_gmt":"2009-04-25T20:48:26","slug":"seventh-circuit-criminal-case-of-the-week-when-is-it-a-crime-to-stuff-the-drawing-box","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/04\/seventh-circuit-criminal-case-of-the-week-when-is-it-a-crime-to-stuff-the-drawing-box\/","title":{"rendered":"Seventh Circuit Criminal Case of the Week: When Is It a Crime to Stuff the Drawing Box?"},"content":{"rendered":"

\"\"<\/a>In April 2005, the Ho-Chunk casino in Baraboo, Wisconsin, sponsored a drawing in which one lucky winner would receive $10,000.\u00a0 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.\u00a0 Two participants, however, chose to circumvent the prescribed processes by photocopying thousands of entry forms and stuffing the drawing box.\u00a0 By the time of the drawing, Darwin Moore and Bruce Knutson had their names on more than sixty percent of the entry forms.\u00a0 Knutson won the drawing, but then faced federal criminal charges, thanks to snitching by Moore’s ex-girlfriend.\u00a0 Eventually, Moore and Knutson were both convicted of theft from an Indian gaming establishment, and each received a ten-month sentence.<\/p>\n

On appeal, the two defendants argued that the indictment was insufficient because it failed to state an offense.\u00a0 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.\u00a0 The Seventh Circuit, however, affirmed their convictions in United States v. Moore <\/a><\/em>(Nos. 08-1177 & 08-1615) (Evans, J.).<\/p>\n

The court gave the defendants’ argument short shrift, but it strikes me as a rather close case.\u00a0\u00a0For it cannot be that every\u00a0attempt to exploit a loophole in a privately run contest amounts to\u00a0theft.\u00a0 Rules are often clumsily drafted, and, at some point, the businesses that sponsor\u00a0contests must bear the responsibility when they do not make their intentions clear in writing.\u00a0 (An analogy might be drawn to the\u00a0“puffery” rule in commercial transactions: it is not theft\u00a0when a buyer has been so\u00a0gullible as to\u00a0rely on statements made by a seller that\u00a0would 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.)\u00a0<\/p>\n

It would have been helpful, I think, for the court to have discussed what principle distinguishes lawful loophole-exploitation from criminal theft.\u00a0 Off the top of my head, I would nominate: whether a reasonable <\/em>person who knew what the defendant knew would have understood that his conduct was clearly prohibited <\/em>by the written rules of the game.\u00a0 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.\u00a0 Pursuant to the Rule of Lenity, we demand clarity in a\u00a0legislative 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).<\/p>\n

Judged by this standard, I think it is a close question whether Moore and Knutson were thieves.\u00a0 In upholding their conviction, the court emphasized\u00a0a familiar canon of statutory construction, “expressio unius est exclusio alterius <\/em>— that is, by listing the proper avenues for receiving entry forms, one should logically infer that the casino meant to exclude other avenues.”\u00a0 There is some force to the point, but I’m not sure it can really supply the requisite level of clarity\u00a0for the prohibition.\u00a0 Lawyers and law students will instantly recognize expressio unius <\/em>as an\u00a0ancient maxim, but it is far from clear that laypeople (reasonable or otherwise) actually read language this way.\u00a0 Indeed, one even finds courts from time to time commenting critically on expressio unius <\/em>as among the least reliable tools for divining legislative intent.\u00a0 Moreover, not even the casino itself interpreted its rules so restrictively; the evidence at trial established that\u00a0some casino staff members\u00a0were able to hand\u00a0out entry forms at their discretion, although though the rules said nothing about this possibility.\u00a0\u00a0<\/p>\n

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.\u00a0 But the predrawing sneakiness does not prove knowledge of illegality:\u00a0even if they\u00a0thought they were acting within the rules, they might still\u00a0have wanted to\u00a0avoid attention\u00a0for fear that others would try to exploit the same loophole or that the casino would change the rules\u00a0to close the loophole.\u00a0 The postdrawing deception is troubling, but is not inconsistent with the defendants’ believing\u00a0that their scheme was in a gray area between that which was clearly permitted and that which was clearly prohibited.\u00a0 If so, should the defendants’\u00a0(possibly only after-the-fact) recognition that their conduct might have <\/em>violated the rules be enough to establish their criminal liability?<\/p>\n

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.\u00a0 Would the defendants have committed theft if they had submitted only 100 entries, instead of 9,355?\u00a0 Ten?\u00a0 One?\u00a0 Of course, if the expressio unius <\/em>point is really the basis of the holding, then even one photocopied entry would be a crime.\u00a0<\/p>\n

In addition to Moore<\/em>, the other Seventh Circuit criminal cases of the past week were:<\/p>\n