Appeal from the Circuit Court of Lake County; the Hon. William
D. Block and the Hon. William F. Homer, Judges, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Lake County defendants were convicted of syndicated gambling (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(b)) in connection with the operation of a gambling casino at the Green Mill Restaurant near Grayslake. On appeal, they claim that: (1) the receipt of wagers for blackjack and craps is not "bookmaking" within the meaning of the statute; (2) the State failed to prove the required element of a "recording"; (3) the State failed to prove that defendants were engaged "in the business" of bookmaking; (4) the Illinois syndicated gambling statute is vague, uncertain and hence unconstitutional; (5) there was insufficient evidence to prove syndicated gambling and thus the forfeiture of an automobile based upon that offense must fall; and (6) the forfeiture order entered by the court is against the manifest weight of the evidence.
Defendants, Robert F. Dugan, Barbara J. Miller, Sharon L. Skelton, James R. Siegal, Peter R. Lambiris, Bill Anagnostara, Trina M. Brie, Norman P. Roberts, and Edward M. Kahn, were indicted on charges of syndicated gambling following a three-month undercover investigation by the Illinois Department of Law Enforcement (DLE). The investigation revealed that the basement of the restaurant housed a private club called the Northern Illinois Fin & Tail Feather Club in which games of blackjack and craps were played by patrons and conducted by defendants. Members of the club were identified by their possession of membership cards which could be obtained through sponsorship by other members. Access to the club was barred by a steel door with a locking mechanism. The lock was released by a buzzer operated by a doorman who was able to view the patrons through a peephole before allowing them in. Inside the club were two card tables for blackjack, a dice table, a horseshoe-shaped bar and several food tables. Behind this area was a hallway leading to restrooms, a pay telephone, and a wine cellar which housed a large metal safe. On September 10, 1982, the date of the indictment, a number of patrons were in the club.
Patrons of the club purchased poker chips from dealers at the tables and used the chips to bet at the various games. Additionally, patrons who had dinner at the Green Mill Restaurant above the casino could exchange the receipt from the dinner check for chips. In this way, defendants would pay for the patrons' dinners. The chips came in various colors corresponding to different dollar amounts. Underneath one of the blackjack tables was a cash box. When chips were purchased at any of the gambling tables, the cash was deposited into the cash box through a slot in the blackjack table. Defendant Roberts approved each sale of chips by nodding his head at the dealers, after which the chips were dispensed. Periodically, defendant Roberts would remove the cash from the cash box and walk it down the hall towards the wine cellar, sometimes accompanied by defendant Dugan. These defendants, along with the remaining defendants, also dealt the games and took money in exchange for chips. Defendants Dugan, Roberts and Kahn all collected gambling debts from the patrons in addition to their other duties.
The club provided food, drinks, and cigarettes to its patrons free of charge. The employees of the club worked for tips in the form of poker chips. The chips were cashed in at the end of the evening, as were the patrons' chips, by defendants Dugan, Roberts and Kahn.
The testimony at trial established that these operations had been going on at least since March 1982, when the club was raided by deputies of the Lake County Sheriff's office. Despite the raid, gambling continued during the succeeding months. On September 10, 1982, the date specified in the indictment, six DLE agents spent varying amounts of money in the casino, ranging from $100 to $2,200.
Defendants presented no evidence in defense of the syndicated gambling charge, and were subsequently found guilty of the offense. Defendants' post-trial motions to dismiss the indictments and for a new trial were denied. They were sentenced to various terms of supervised probation and imprisonment, and were ordered to pay restitution and fines. Defendants appeal from their convictions.
In a separate action, the Lake County State's Attorney filed a civil complaint for the forfeiture of one 1977 Cadillac Coupe DeVille, which was seized from the parking lot of the Green Mill Restaurant on the evening of the raid. At the hearing on the complaint, State Trooper David Conrod testified that during the raid he identified all vehicles parked in the lot behind the restaurant. Using a flashlight, he observed several decks of cards and a number of Northern Illinois Fin & Tail Feather Club membership cards inside the vehicle in question. He advised the supervising assistant Attorney General of this finding and was instructed to have the car confiscated and towed away for evidence. Following this seizure a search warrant was obtained. Recovered in the subsequent search were numerous membership cards, poker chips, playing cards, gambling table covers, and $30,000 in cash. It was also discovered that this cash included $700 of the money gambled by several of the DLE agents. DLE agent Paul Olsen testified that during his interview of defendant Dugan following his arrest, Dugan stated that he was the owner of the Cadillac.
The defendant presented testimony in the forfeiture action that the Cadillac in question was owned by one Sandra Martinez, although negotiations for its purchase were made by defendant Dugan. Dugan also paid the dealer over $5,000 on August 10, 1982, for the vehicle. Nine days later defendant Dugan returned the vehicle so that certain repairs could be made. Sandra Martinez received the title for the automobile, purchased insurance for the car, but allowed Dugan to borrow the vehicle for an indeterminate period of time. Defendant Dugan kept the car from August 31, 1982, until the raid on September 10-11, 1982. Martinez was unemployed at the time of the purchase and had not earned over $10,000 a year for the two years preceding the raid. She had no bank account, and testified that the $5,000 used to pay for the vehicle came from cash which she kept in her home.
The trial court found that defendant Dugan was the de facto owner of the automobile, and ordered the vehicle forfeited. Appeal is also taken from the forfeiture order.
We first consider defendants' argument that the receipt of wagers on blackjack and craps is not "bookmaking" within the meaning of section 28-1.1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(b)), but rather is the lesser offense of "gambling," as set forth in section 28-1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1981, ch. 38, par. 28-1(a)(1)). Noting that the bookmaking statute has never been applied in a case dealing with the playing of cards and dice for money, defendants maintain that the legislature intended to make "gambling" and "bookmaking" two separate offenses, each proscribing different conduct. Specifically, defendants argue that the offense of "bookmaking" occurs only where wagers are taken from others on events or contests in which neither the bookie nor the bettor is a participant. (See People v. Petrus (1981), 98 Ill. App.3d 514, 424 N.E.2d 755; People v. Smith (1979), 69 Ill. App.3d 752, 387 N.E.2d 1084; People v. Finn (1978), 68 Ill. App.3d 126, 385 N.E.2d 103; People v. Greenman (1976), 38 Ill. App.3d 734, 348 N.E.2d 465; People v. Stavros (1974), 18 Ill. App.3d 1071, 311 N.E.2d 220; People v. Lloyd (1954), 3 Ill. App.2d 257, 121 N.E.2d 329.) The State contends, on the other hand, that the offenses of "gambling" and "bookmaking" are not mutually exclusive, but rather differ only in the extent and degree of the conduct proscribed.
Section 28-1.1(b) of the Criminal Code of 1961 states that "[a] person commits syndicated gambling when he operates a `policy game' or engages in the business of bookmaking." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(b).) The offense is a Class 3 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 28-1.1(f).) "Bookmaking" is defined in the statute as follows:
"(d) A person engages in bookmaking when he receives or accepts more than five bets or wagers upon the result of any trials or contests of skill, speed or power of endurance or upon any lot, chance, casualty, unknown or contingent event whatsoever, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid to such bookmaker on account thereof shall exceed $2,000. Bookmaking is the receiving or accepting of such bets or ...