Before MAJOR, SWAIM and SCHNACKENBERG, Circuit Judges.
The defendants were convicted, under one count of failing and refusing to register as dealers in gambling devices in violation of Section 1173, Title 15 U.S.C.A.; and, under another count, the defendant Ansani was also convicted of shipping and causing to be transported in interstate commerce certain gambling devices in violation of Section 1172, Title 15 U.S.C.A. Each of the defendants was sentenced to imprisonment for one year and one day and fined $1,000.00. The decision of the District Court is reported in United States v. Ansani, D.C.N.D.Ill., 138 F.Supp. 454.
Numerous points are raised by defendants, the most substantial of which is whether the devices in question, i.e., certain "trade boosters," are gambling devices as defined in 15 U.S.C.A. § 1171(a)(3).
The trade booster is an electrically operated device. It consists of a steel cabinet containing various electrical circuits and two control units. Functionally the device is useless unless employed in conjunction with another appliance, which in the instant case was a slot machine. The slot machines on which trade boosters were used were altered or modified by removing the slots into which coins were inserted to activate the machines and the slots from which money was discharged from the machines. In this denuded condition the slot machine was mechanically inoperable. After these mechanical modifications, the trade booster and the slot machine were connected and the various electrical circuits permitting joint operation were put in place. The trade booster enabled the slot machine to be operated by remote control and thus eliminated the necessity of coin activation. One of the control units was placed either next to or inside of the slot machine; the other unit was placed within reach of the custodian. One who wished to play the machine paid the custodian for the number of games he desired. The custodian pressed a "credit" button on the control unit which registered the number of games purchased and the game was then played as it was before the conversion. Games won were merely registered on the machine, as the pay off mechanism had been removed. The games won could be cashed in, the player receiving his pay off from the custodian. A cancel push button removed the games that were cashed in from an indicator on the front of the machine and registered them on the control unit inside the slot machine. After it was altered to operate with the trade booster, the slot machine was inoperable without the trade booster.
The Johnson Act defines gambling device as follows:
"As used in this chapter -
"(a) The term 'gambling device' means -
"(1) any so-called 'slot machine' or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and (A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or (B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or
"(3) any subassembly or essential part intended to be used in connection with any such machine or mechanical device." 15 U.S.C.A. § 1171.
Defendants contend that a trade booster transforms a slot machine into a nongambling device for amusement only. They argue that after the slot machine has been altered in such a way that its slot is so obstructed as to prevent the insertion of a coin to activate it, and its pay off mechanism has been removed, it is no longer a slot machine; and, therefore, a trade booster is not a subassembly or essential part of a slot machine. The difficulty with this argument is that it dwells on nonessentials and completely ignores the fact that after the trade booster is attached, the machine performs precisely the same function as an unconverted slot machine, i.e., it is a machine or device "an essential part of which is a drum or reel with insignia thereon * * * by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property * * *." Section 1171 does not require that a slot machine be a coin activated device nor that winnings be delivered automatically. The statute is clear on these points for "gambling device" is defined as "any so-called 'slot machine' or any other machine or mechanical device * * * by the operation of which a person may become entitled * * *." A slot machine is not a gambling device merely because it has coin slots or an automatic pay off mechanism. It is a gambling device because its function and design are to allow one to stake money or any other thing of value upon the uncertain event of achieving the winning combination of insignia. Essentially the game is played as it was before the alteration or modification; and we cannot believe that a player would classify the machine differently after the conversion. Defendants' advertising literature recognized this fact when it stated:
"Convert your game and STOP being fouled up with laws on gambling devices the complete game [slot machine and trade booster] have been thoroughly location tested and the playing public love it and play it like they used to play a standard bell machine."
Defendants have attempted to accomplish, or rather, permit others, i.e., owners of slot machines, to accomplish, by indirection that which they cannot accomplish directly. The Johnson Act clearly encompasses a slot machine equipped with a trade booster. ...