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United States v. Masino

United States Court of Appeals, Eleventh Circuit

September 7, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross Appellee,
LARRY L. MASINO, Defendant-Appellee-Cross Appellant, DIXIE L. MASINO, Defendant-Appellee.

         Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 3:16-cr-00017-MCR-1

          Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and MOORE, [*] District Judge.


         We must decide whether an indictment that alleges that a business was in violation of the Florida bingo and gambling house statutes, Fla. Stat. §§ 849.01, 849.02, 849.03, 849.0931, sufficiently alleges one of the essential elements needed to obtain a conviction under the federal gambling statute: that the business "is a violation of" state law, 18 U.S.C. § 1955(b)(1)(i). Larry Masino and his ex-wife Dixie Masino own a Florida business called Racetrack Bingo Inc. Although Florida law generally prohibits gambling, it allows bingo to be conducted under stringent regulations. See Fla. Stat. § 849.0931. The government alleges a scheme in which the Masinos, through Racetrack Bingo, operated illegal bingo games on behalf of several charities, defrauded those charities as to the legality of their operation, charged the charities unlawfully excessive fees, and then laundered the profits. Count Two of the indictment charges the Masinos with violating the federal gambling statute, 18 U.S.C. § 1955. To establish a violation of that statute, the government must prove, among other things, that the business is an "illegal gambling business, " which in turn requires proof that the business "is a violation" of state law, id. § 1955(b)(1)(i). The district court dismissed part of Count Two on the ground that a violation of the Florida bingo statute could never convert a bingo business into an illegal gambling business. The government appealed, and Larry Masino filed a cross-appeal. Because we decline to exercise pendent appellate jurisdiction over Larry Masino's interlocutory cross-appeal, we dismiss the cross-appeal. And because a gambling business that violates the Florida bingo statute, Fla. Stat. § 849.0931, could be "a gambling business which is a violation of the law of a State, " 18 U.S.C. § 1955(b)(1)(i), we reverse the dismissal of the indictment and remand.

         I. BACKGROUND

         Former spouses Larry and Dixie Masino and their children own Racetrack Bingo Inc., a Florida corporation that conducted bingo games on behalf of several charities in Fort Walton Beach, Florida. Each charity sponsored two bingo sessions a week. The charities collectively formed Ft. Walton Beach Charities LLC to manage and distribute proceeds of the bingo games. At the direction of the Masinos, each charity entered into annual lease agreements with Racetrack Bingo. The leases provided that Beach Charities would pay Racetrack Bingo a fee that ranged from $1, 050 to $1, 770 a bingo session. The lease fee did not cover electronic bingo equipment rental, paper bingo supplies, bank fees, and set up and cleanup costs.

         In February 2016, a federal grand jury returned a 41-count indictment against Larry and Dixie Masino for conspiracy to commit wire fraud, operating an illegal gambling business, conspiracy to commit money laundering, and money laundering. 18 U.S.C. §§ 1343, 1349, 1955, 1956(h), 1957. In June 2016, a federal grand jury returned a superseding indictment that added predicate offenses to Count Two, operating an illegal gambling business. Count Two states as follows:

Between on or about January 1, 2006, and on or about July 31, 2015, in the Northern District of Florida, the defendants,
Larry L. Masino and Dixie L. Masino,
did conduct, manage, supervise, direct, and own all or part of an illegal gambling business, to wit, a gambling business involving bingo games called Racetrack Bingo Inc., which business was in violation of the laws of the State of Florida, to wit, Florida Statutes, Sections 849.01, 849.02, 849.03, and 849.0931, and which involved five or more persons who conducted, managed, supervised, directed, and owned all or part of said illegal gambling business, and which remained in substantially continuous operation for a period in excess of 30 days, and which had a gross revenue of $2, 000 in any single day.
In violation of Title 18, United States Code, Sections 1955 and 2.

         The prosecution proceeded under the theory that the Masinos "defrauded the charities by falsely representing that they were operating [Racetrack Bingo] in compliance with Florida law. Instead, [they] falsely inflated the amount charged for rent and expenses so [they] could unlawfully retain bingo proceeds that were otherwise supposed to go to the charities." The Masinos then "conspired to launder and did launder the proceeds of their fraud and illegal gambling operation." The government suggested that "the amount ordered in restitution, forfeiture, and any money judgment [could] exceed approximately $5.8 million."

         Larry and Dixie Masino moved to dismiss Count Two of the indictment, Fed. R. Crim. P. 12(b)(3)(B). The district court initially granted the motion to dismiss Count Two in its entirety because it determined that "bingo offenses are not a form of illegal gambling under Florida law, and therefore, a violation of the Florida Bingo statute may not serve as a predicate offense for purposes of the Federal Gambling statute." But the district court later vacated that order and instead granted in part and denied in part the Masinos' motion to dismiss Count Two. The district court explained, "Given that the Florida Legislature plainly expressed its intent by including offenses chargeable under the Bingo Statute as forms of 'racketeering activity' under the 2013 amendment to Florida's [Racketeering Act], it necessarily follows that a violation of the Bingo Statute now constitutes an 'illegal gambling business' in violation of Florida law for purposes of the [federal gambling statute]." The district court dismissed Count Two to the extent it charged a violation based on bingo activities that occurred before the amendment to Florida's Racketeering Act, which occurred on April 10, 2013. The district court concluded that the indictment failed to charge the essential element that Racetrack Bingo was an "illegal gambling business" because no violation of the Florida bingo statute could convert a bingo company into an illegal gambling business.

         The government appealed the partial dismissal of Count Two, 18 U.S.C. § 3731. Larry Masino cross-appealed on the ground that the district court should have dismissed Count Two in its entirety. Dixie Masino did not file a cross-appeal. After we asked the parties to address the basis for our jurisdiction over the cross-appeal, the government argued that we lack jurisdiction over a cross-appeal of a denial of a motion to dismiss ...

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