Summary: Defendants renewed their motion to dismiss the indictment, which included a charge under 18 U.S.C. § 1955. Defendants alleged that they were only engaged in account wagering. However, even if they only were engaged in account wagering, North Dakota law still requires the involvement of a charity. Since the Court had no evidence that a charity was involved in any of the gambling transactions, it denied the renewed motion to dismiss.
Case Name: USA v. Racing Services, Inc.
Case Number: C3-03-112
Docket Number: 75
Date Filed: 12/22/04
Nature of Suit: 000
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
United States of America,
Racing Services, Inc., Susan Bala, Global Contact, Inc., and Raymundo Diaz, Jr.,
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) ) MEMORANDUM OPINION ) AND ORDER DENYING ) SECOND MOTION TO DISMISS ) ) ) Criminal File No. C3-03-112 ) ) ) |
Before the Court is a second motion from Defendants Racing Services, Inc. (RSI) and Susan Bala (Bala) to dismiss the indictment (doc. #71). The United States filed a brief in opposition (doc. #73).
ANALYSIS
I. Statutory Interpretation
Before reaching the merits of Defendants’ renewed motion to dismiss, the Court will address an issue raised in the government’s brief. In the Memorandum Opinion and Order on the previous motion to dismiss, the Court noted that section 53-06.2-10.1 of the North Dakota Century Code allowed RSI to accept “account wagers.” The United States disagrees with this interpretation of the statute. The government argues that the 2001 amendment to section 53-06.2-10.1 was done to “allow account wagering of parimutuel racing by the charities.” (United States’ Resp. Def. Susan Bala’s Renewed Mot. Dismiss at 4)
In construing statutory provisions, a court’s duty is to ascertain the intent of the Legislature. Dist. One Republican Comm. v. Dist. One Democrat Comm., 466 N.W.2d 820, 824 (N.D. 1991). A court must first look at the statutory language to determine the Legislature’s intent. Id. If the statutory language is clear and unambiguous, a court cannot then disregard that language under the pretext of pursuing the legislative intent because the intent is presumed to be clear from the face of the statute. Id. at 824-25.
Unless the Legislature has defined the words used in a statute, a court must give those words their plain, ordinary, and commonly understood meaning. Reed v. Hillsboro Pub. Sch. Dist., 477 N.W.2d 237, 240 (N.D. 1991) (citing N.D. Cent. Code §§ 1-02-02 and 1-02-03). A court may rely on dictionary definitions to determine the plain meaning of words. See Kim-Go, H.K. Minerals, Inc. v. J.P. Furlong Enters., 460 N.W.2d 694, 696 (N.D. 1990) (relying on Webster’s New World Dictionary for the plain meaning of the word “proportion”).
Statutory provisions must be considered as a whole with each provision harmonized, if possible. Dist. One, 466 N.W.2d at 824. Every effort must be made to give each word, phrase, clause, and sentence meaning and effect. Id. When a statute is enacted, it is presumed that it is in compliance with the North Dakota Constitution. N.D. Cent. Code § 1-02-38(1).
The relevant portion of the statute states: “An account wager made on an account established in this state may only be made through the licensed simulcast service provider authorized by the commission to operate the simulcast parimutuel wagering system under the certificate system.” The government concedes that “the licensed simulcast service provider” was RSI during the period of time covered in the Indictment.
“Only” means “without others or anything further; alone; solely; exclusively.” Random House Webster’s Unabridged Dictionary 1354 (2d ed. 1997). “Make” means “to produce; cause to exist or happen; bring about; to do.” Id. at 1161. “Through” means “by the means or instrumentality of.” Id. at 1977. The plain meaning of the phrase “only be made through” is exclusively bringing about a transaction or event. Placing it in the context of the entire sentence, the plain meaning of this statutory provision is that RSI exclusively brings about or does the account wagers. Therefore, an “account wager” may not be made through a charitable organization. Since there is no ambiguity in this statutory provision, the Court may not consider legislative intent. Dist. One, 466 N.W.2d at 824-25.
The United States appears to have interpreted the Court’s Memorandum Opinion and Order on the motion to dismiss as indicating that no charity had to be involved in any manner whatsoever when it came to account wagering. This interpretation would be clearly incorrect in light of Article XI, section 25 of the North Dakota Constitution. While the Legislature only allows account wagers to be made through the licensed simulcast service provider, this statutory provision must still be construed in harmony with the constitution. See N.D. Cent. Code § 1-02-38(1) (stating that a statute is presumed to be enacted in compliance with the constitutions of the state).
Article XI, section 25 states, in relevant part, that the entire net proceeds of games of chance must be devoted to “educational, charitable, patriotic, fraternal, religious, or other public-spirited uses.” Therefore, to harmonize section 53-06.2-10.1 of the North Dakota Century Code with the constitution, the licensed simulcast service provider must be associated in some way with a charitable organization such that the entire net proceeds of the account wagers are devoted to public-spirited uses. By only allowing the licensed service provider to handle the account wagers, the Court must presume that the Legislature did not also intend to allow the licensed service provider to operate a non-charitable gaming operation since that would be unconstitutional.
Section 12.1-28-02 of the North Dakota Century Code is an enforcement provision of Article XI, section 25 of the North Dakota Constitution. Under subsection 3 of this statute, it is a class C felony to engage or participate in the business of gambling. To be consistent with the constitution, an essential element of this crime has to be that the net proceeds of the games of chance were not devoted to a public-spirited use. N.D. Const. art. XI, § 25. In the context of this case, if the entire net proceeds from the account wagers made through RSI were not devoted to charitable uses, there would be a criminal violation under North Dakota law.
II. Second Motion to Dismiss
“Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government’s evidence.” United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000) (citing United States v. Knox, 396 U.S. 77, 83 n.7 (1969)). There is no corollary in criminal cases to a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id. at 661. The government is entitled to present all of its evidence at trial and then have its sufficiency tested by a motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Id.
Defendants RSI and Bala have submitted evidence of, allegedly, the entire transactions that took place at the 1318 23rd Street site, and they allege that all of these transactions were “account wagers.” There is no stipulated record in this case. Therefore, the United States is entitled to present evidence that more than just “account wagers” were made through this site. DeLaurentis, 230 F.3d at 661. Additionally, the government has alleged that somehow Global Contact and Diaz were involved in this operation. Since neither one of them is the licensed service provider, account wagers could not be made through them. While RSI and Bala assert that Global Contact had no involvement in handling the account wagers, the government is entitled to present its evidence on that issue. Id. Finally, there is the issue of what happened to the “entire net proceeds” of these account wagers. While Diaz alleges that the entire net proceeds went through the charitable organization Fair Circuit Horse Racing Association, the government is entitled to present its evidence on the disposition of the net proceeds. Id.
DECISION
Based on the foregoing, Defendants’ second Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Dated this 22nd day of December, 2004.
_________________________
Ralph R. Erickson, District Judge
United States District Court