United States v. Darwin Moore ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1177 & 08-1615
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ARWIN P. M OORE and B RUCE E. K NUTSON,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 25—Barbara B. Crabb, Chief Judge.
A RGUED JANUARY 15, 2009—D ECIDED A PRIL 21, 2009
Before R IPPLE, M ANION, and E VANS, Circuit Judges.
E VANS, Circuit Judge. The date: April 14, 2005. The
time: 6 p.m. The place: Ho-Chunk casino in Baraboo,
Wisconsin. The event: a drawing to determine who
would walk off with $10,000. Undoubtedly, excitement
was in the air. Realistically, the average schlemiel had
only a .000067 percent chance of winning. But another
participant in the drawing had to like his chances: Bruce
2 Nos. 08-1177 & 08-1615
Knutson had a 30 percent chance of coming up a winner.
And when the winning entry form was pulled from the
barrel—ta da—the winner was Bruce Knutson! The
lucky winner then posed for a publicity picture, signed off
on a tax form, received a check for $5,000, and pocketed
$5,000 in cash. It was, we suspect, a night to remember.
But all was not, as we shall see, quite as it seemed. The
rest of the story explains why Knutson and his buddy,
Darwin Moore, are here appealing their convictions
after they were found guilty of bilking the casino out of
$10,000.
This case started with Ho-Chunk’s “Tax Time Blues
Giveaway,” a drawing, which awarded five lucky casino
patrons—one every hour starting at 6:00 p.m.—with a
$10,000 prize. To earn entry forms, the written rules
stated that patrons had to register at the guest service
booth, where they would receive their first form. After
that, gamblers could get additional entry forms for
every 50 points they earned at the slot machines or every
hour they spent playing blackjack. Although not
explicitly stated, some casino staff could also hand out
extra entries at their discretion. The official rules were
silent about counterfeiting entry forms. The casino ac-
cepted entries for six weeks and the drawing, as the
name of the contest suggests, was held the day before
the April 15 tax-filing deadline.
Knutson and Moore heard about the drawing and set
about to win it. With the help of Moore’s then-girlfriend,
Grace Hewitt, the two hatched a plan to make their own
entry forms and stuff the promotional barrels to up their
Nos. 08-1177 & 08-1615 3
odds of winning. They purchased orange stock paper to
match the forms handed out by the casino and used
Moore’s copier to produce fake entry forms. But Moore
and Hewitt were no Bonnie and Clyde. Weeks before
the drawing the two split, and Hewitt decided to exact
some revenge. She snitched on Knutson and Moore,
telling casino authorities about the scheme, even pro-
viding them with a few of the bogus entry forms. The
fake forms were easily identifiable because the water-
mark on the casino’s form became pixelated after it was
photocopied.
After receiving this tip, an investigator kept an eye on
Knutson and Moore when they entered the casino and,
over the course of a week, observed both men drop multi-
ple entry forms into the drawing barrels. They would
stagger their submissions, depositing the forms at dif-
ferent times throughout the evening.
On the night of the drawing, one of Knutson’s entries
was the first one pulled from the barrel. He filled out all
the necessary paperwork to claim his prize and provided
the casino with his social security number and drivers
license number. After the drawing, Ho-Chunk’s investiga-
tor went through the entries and discovered that
Knutson (4,710) and Moore (4,645) together submitted
9,355 of the approximately 15,000 entry forms. So
together, the two had 62 percent of the total entries in
the drawing. The thousands of other participants had the
other 38 percent. And according to the casino’s data-
base, Knutson and Moore “earned” only 23 entries through
their gambling.
4 Nos. 08-1177 & 08-1615
The Wisconsin Department of Justice eventually
stepped in and sent two agents to interview Knutson and
Moore. During the interview, both claimed that they
had submitted only a couple hundred forms, on several
occasions, explaining that they would pick up extra entry
forms they found in the casino or submit forms they
had received from patrons who came to the casino on
tour buses. Since entrants had to be present at the
drawing to claim the prize, these out-of-town patrons
were presumably willing to give up their entry forms.
When asked if they had manufactured their own forms,
they denied doing so, emphasizing that they had not
submitted any forms that were photocopied.
Knutson and Moore were eventually indicted for con-
spiring to violate 18 U.S.C. § 1167(b), which penalizes
anyone who “abstracts, purloins, wilfully misapplies, or
takes and carries away with intent to steal” money that
belongs to a gaming establishment run by an Indian tribe.
18 U.S.C. § 371. The defendants waived their right to a
jury trial and the case proceeded to a bench trial. The
district court found both defendants guilty. Each re-
ceived a sentence of 10 months. They were also ordered
to pay back the $10,000.
Knutson and Moore begin by attacking the indictment.
They assert that it is insufficient because, in their view,
the allegations that they stuffed the barrels with counter-
feit entry forms fail to state an offense. See Fed. R. Crim. P.
7(c)(1); 12(b)(3)(B). They claim they were merely trying
to increase their odds of winning, which, they contend,
is not illegal. They were unsuccessful in asserting this
Nos. 08-1177 & 08-1615 5
same argument in a motion to dismiss before the magis-
trate judge who recommended that the district court
deny the motion. Receiving no objections from the defen-
dants, the district court adopted the recommendation.
A failure to object to a magistrate judge’s recommenda-
tions constitutes a waiver, which would ordinarily pre-
clude our review. See United States v. Hall, 462 F.3d 684,
688 (7th Cir. 2006). But here, the government has “waived
waiver” by asserting that we can review the decision
de novo. See United States v. Murphy, 406 F.3d 857, 860
(7th Cir. 2005).
Everything we have said so far is prelude to a pretty
straightforward conclusion—the indictment is easily
sufficient. An indictment need not say much to be
deemed sufficient—it must: (1) state all the elements of
the crime charged; (2) adequately apprise the defendants
of the nature of the charges so that they may prepare a
defense; and (3) allow the defendant to plead the judg-
ment as a bar to any future prosecutions. United States
v. Castaldi, 547 F.3d 699, 703 (7th Cir. 2008). What’s
more, we look at the indictment as a whole, focusing on
a practical, rather than a hypertechnical, reading of the
document.
Here, the indictment notes the statutory bases for the
conspiracy count, listing the elements of the crime. It also
provides, with quite a bit of detail, the factual backdrop
of the scheme. It explained how gamblers could earn
forms and how Knutson and Moore took “steps to win
the Tax Times Blues Giveaway by cheating, that is, by
stuffing the promotion barrels with counterfeit entry
6 Nos. 08-1177 & 08-1615
forms.” The indictment also explains that Knutson and
Moore purchased bright orange paper from a local Office
Max, stuffed the drawing with over 9,000 fake forms,
and recruited two others (two unsuspecting Knutson
relatives) to help submit bogus entries. This factual back-
drop gave the defendants plenty of ammunition to
prepare their defense and was specific enough to avoid
any later double jeopardy concerns.
But the defendants still urge that the indictment was
defective, since, in their view, they had only exploited a
loophole in the rules—they note in particular that the
rules did not specifically prohibit their behavior and
that casino staff members handed out entry forms in
ways not enumerated in the rules. But when evaluating
the sufficiency of an indictment, we focus on its allega-
tions, which we accept as true. United States v. Vitillo, 490
F.3d 314, 320-21 (3d Cir. 2007); United States v. Todd, 446
F.3d 1062, 1067 (10th Cir. 2006); United States v. Sharpe, 438
F.3d 1257, 1258-59 (11th Cir. 2006); United States v. Boren,
278 F.3d 911, 914 (9th Cir. 2002). “Challenging an indict-
ment is not a means of testing the strength or weakness
of the government’s case, or the sufficiency of the govern-
ment’s evidence.” Todd, 466 F.3d at 1067. The precise
wording of the rules and the casino’s enforcement of
those rules were not mentioned in the indictment.
Whether Knutson and Moore broke the rules or just
took advantage of a technicality is a question of fact that
could not be decided without a trial.
At this stage, our inquiry is narrow. We must decide
whether it’s possible to view the conduct alleged as an
Nos. 08-1177 & 08-1615 7
agreement to steal $10,000 from the casino. And we have
no problem concluding that Knutson’s and Moore’s
behavior—stuffing the promotional barrels with over
9,000 fake entries, exponentially increasing their odds of
winning—can only be construed as a tricky scheme to
dupe the casino out of its money. The “Tax Time Blues
Giveaway” created incentives for gambling. The drawing
rewarded patrons who spent a lot of time (presumably
losing money) at the slots or blackjack tables with an
increased chance of winning the prize money. By
stuffing the barrels with counterfeit entries, Knutson and
Moore subverted this purpose and deprived Ho-Chunk
of a fundamental right of ownership—that is, the right
to give away its money the way it wanted to do.
To the extent that Knutson and Moore rely on facts
outside of the indictment, they are really arguing that
there was insufficient evidence to support their convic-
tions. This argument is an uphill battle—we review the
evidence in the light most favorable to the government
and will reverse only if no rational trier of fact could
have found the defendants guilty beyond a reasonable
doubt. United States v. Knox, 540 F.3d 708, 719 (7th Cir.
2008). To find the defendants guilty, the government had
to prove that Knutson and Moore agreed to abstract,
purloin, or take away with intent to steal the casino’s
money. 18 U.S.C. §§ 371, 1167(b); United States v. Soy,
454 F.3d 766, 768 (7th Cir. 2006).
Under this deferential standard, Knutson and Moore’s
challenge fails. It is true that the rules do not specifically
prohibit the submission of fake (especially thousands of
8 Nos. 08-1177 & 08-1615
them!) entry forms, but that does not mean the casino
condoned counterfeiting. As the Latin lovers might say,
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 others
avenues. The defendants note that the rules had some
wiggle room: additional entry forms could be handed
out by the casino’s staff. But in all instances the forms
came from the casino, they were not bogus forms. By
counterfeiting thousands of entry forms, Knutson and
Moore set out, by trickery, to take $10,000 of the casino’s
money, and such chicanery is prohibited by § 1167(b). See,
e.g., Bell v. United States, 462 U.S. 356, 360 (1983) (holding
that 18 U.S.C. § 2113(b), which prohibits taking and
carrying away, with intent to steal or purloin money
from a bank, includes theft by false pretenses, i.e., acquir-
ing title to property through trickery).
The defendants maintain that they were open and
honest about their behavior—they used their real names
on the forms and Knutson gave the casino his real name
and social security number to claim the prize—which,
they contend, belies any intent to steal from the casino.
But the duo had to accurately provide this information
to collect the prize money, so this honesty says little
about their intentions. Meanwhile, their other behavior
suggests that they knew they were up to no good. They
furtively staggered the submission of the fake forms
over multiple days and asked two other people to help
stuff the barrels. During the investigation they con-
tinued to obfuscate their conduct by denying that they
had created the entries. Instead, they claimed to have
Nos. 08-1177 & 08-1615 9
submitted forms that they found lying around or had
received from other casino patrons who weren’t going
to be present for the drawing. Looking at this evidence
in the light most favorable to the government, it is
enough to sustain its burden.
Accordingly, we A FFIRM the judgment of the district
court. The stays of the defendants’ sentences are dis-
solved and the case remanded to the district court so it
can set a date for the defendants to report for the service
of their sentences.
4-21-09