Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 94-CR-30014 Richard Mills, Judge.
Before BAUER, FLAUM, and RIPPLE, Circuit Judges.
Defendants were tried before a jury for participating in an illegal gambling business in violation of 18 U.S.C. sec. 1955. The jury found all of the defendants guilty, and the defendants moved for a new trial, arguing that the government had failed to prove a violation of state gambling law, as required by sec. 1955. The government responded by contending that the evidence adduced at trial demonstrated that the defendants aided and abetted a state gambling violation. The district court granted the defendants' motion, holding that, because the jury instructions did not adequately communicate the aiding and abetting theory to the jury, it would be fundamentally unfair to convict the defendants on that theory. After the case was set for retrial, the defendants moved to dismiss the charge against them on the ground that a retrial would violate the Fifth Amendment's prohibition against double jeopardy. The district court denied the motion to dismiss, and the defendants appealed. We affirm.
The defendants were tried on the sec. 1955 charge by a jury beginning on December 6, 1994. *fn1 The trial evidence, viewed in the light most favorable to the government, established that All-star Music, Inc. ("Allstar") leased video poker and video slot machines to various locations, mostly taverns, where the devices were used for gambling. The taverns would pay their patrons who won on the machines, and All-star and the taverns would split the profits reaped by the machines. The individual defendants are current or former employees of All-star who were involved in the gambling business. *fn2
Section 1955 makes it a crime to "conduct, finance, manage, direct or own all or part of an illegal gambling business." 18 U.S.C. sec. 1955(a). To prove the existence of an illegal gambling business, the government must demonstrate that the business violated "the law of [the] State or political subdivision in which it is conducted." 18 U.S.C. sec. 1955(b)(1)(i). *fn3 Count I of the indictment charged defendants with violating Illinois law, specifically 720 ILCS 5/28-1. Subsection (a)(1) of this provision provides that a person commits the offense of gambling when he "[p]lays a game of chance or skill for money or other thing of value." 720 ILCS 5/28-1(a)(1). Subsection (a)(3) provides that a person commits the offense of gambling when he "[o]perates, keeps, owns, uses, purchases, exhibits, rents, sells, bargains for the sale or lease of, manufactures or distributes any gambling device." 720 ILCS 5/28-1(a)(3). The government initially represented to the district court that it intended to prove a state law violation under subsections (a)(1) and (a)(3) of that section. During the trial, however, the government informed the district court and the defendants that it was relying exclusively on proving a violation of subsection (a)(1). In accordance with the government's theory of liability, the jury was instructed that "under the laws of the State of Illinois the offense of gambling occurs whenever a game of chance or skill is played for money or other things of value." The jury was also given a general aiding and abetting instruction, but this instruction was never linked to the alleged violation of state law. *fn4 In its closing argument, the government presented an aiding and abetting theory, but only with respect to an unrelated count.
On January 18, 1995 the jury found all of the defendants guilty of violating sec. 1955. The defendants then moved for a new trial pursuant to Fed. R. Crim. P. 33, arguing that, because the tavern patrons and not the gambling business "played a game of chance or skill for money," the gambling business did not violate subsection (a)(1). In response, the government conceded that the gambling business did not play a game of chance or skill for money within the meaning of 720 ILCS 5/28-1(a)(1). The government contended, however, that the gambling business violated state law by aiding and abetting the patrons' violation of subsection(a)(1). In other words, the gambling business intentionally facilitated the violation by providing the gambling devices and paying patrons who won on them. *fn5 The district court granted the defendants' motion for a new trial with respect to the sec. 1955 charge. The court held that the government could not fairly rely on the aiding and abetting theory to uphold the conviction, summarizing its reasoning as follows:
In viewing the jury instructions in the context of the trial as a whole, the Court notes, and the Government concedes, that the Government's theory of conviction was never argued to the jury in the opening statement or closing argument. This fact, coupled with the fact that the issue was not fully and fairly communicated by the jury instructions, leads us to conclude that the interests of justice mandate a new trial on count I.
The district court thereafter set the sec. 1955 count for retrial.
Soon after the sec. 1955 count was set for retrial, the defendants moved to dismiss the count on double jeopardy grounds, arguing that the district court had found that there was insufficient evidence to support the theory of conviction that was actually communicated to the jury. The court denied the motion to dismiss, reasoning that it granted a new trial because of trial error, i.e., the failure of the instructions to adequately communicate the aiding and abetting theory to the jury. The district court further stated that "there was overwhelming evidence supporting the Government's [aiding and abetting] theory of conviction." *fn6 On appeal, the defendants once again interpret the district court's granting of a new trial as a finding of insufficient evidence to convict them.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The Supreme Court has consistently held that the Double Jeopardy Clause "does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside . . . because of some error in the proceedings leading to conviction." Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (citing United States v. Ball, ...