Instruction 8.900, Criminal Model Jury Instructions for Use in the District Court

CHEATING AND SWINDLING 1

1) G.L. c. 23K, § 39 (a) – First Theory – p. 1-5

2) G.L. c. 23K, § 39 (b) – Second Theory – p. 6-9

3) G.L. c. 23K, § 39 (e) – Third Theory – p. 10-14

The defendant is charged with cheating and swindling during a

game in a gaming establishment.

To prove the defendant guilty of this offense, the

Commonwealth must prove the following five things beyond a

reasonable doubt:

First: That the defendant won or attempted to win money or

property, or reduced or attempted to reduce a losing

wager;

Second: That the defendant used any trick or sleight of hand

performance, or used a fraud or fraudulent scheme,

cards, dice, or other gaming device;

Third: The defendant did so knowingly;

Fourth: That the prohibited activity occurred during a game;

and

1

Definitions of terms in the explanation of elements throughout this instruction are taken from

G.L. c. 23K, § 2.

Fifth: That the prohibited activity occurred in a gaming

establishment.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant won or attempted to

win money or property, or reduced or attempted to reduce a losing

wager. A “wager” is a sum of money or representation of value (e.g.,

a casino chip) that is risked on a game for which the outcome is

uncertain.

See G.L. c. 23K, § 2. The defendant’s action may be “for himself, for another or for a

representative of either.” Id.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant used (any trick or

sleight of hand performance) (fraud) (a fraudulent scheme) (or)

(fraudulent cards, dice, or other gaming device). (A “gaming device”

is an electronic, electrical, or mechanical contrivance or machine

used in connection with gaming or a game.)

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knowingly used (any

trick or sleight of hand performance) (fraud) (a fraudulent scheme)

(or) (fraudulent cards, dice, or other gaming device). You may

examine any evidence regarding the defendant’s actions or words,

and all of the surrounding circumstances, to help you determine

whether the defendant knew they were using a cheating or swindling

device or game.

See Instruction 3.140, Knowledge.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant engaged in the

prohibited activity during a “game”. A “game” is a banking or

percentage game played with cards, dice, tiles, dominoes or an

electronic or mechanical device or machine played for money,

property, checks, credit or a representation of value (e.g., a casino

chip) approved by the gaming commission. (A banking game is any

game where an establishment collects money from the losers and

uses it to pay the winners.) (A percentage game is any game where

the establishment collects a percentage of the bets for its profit.)

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that the prohibited activity took place in a

“gaming establishment”. A “gaming establishment” is the premises

approved under a gaming license which includes any gaming area

and any other nongaming structure related to the gaming area

including, but not limited to, hotels, restaurants, or other amenities.

If the Commonwealth has proved all five elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must return a verdict of not guilty.

If you determine that the Commonwealth has proved beyond a

reasonable doubt that the defendant is guilty of cheating or swindling,

you must also go on to determine the value of the money, property, or

wager cheated or swindled. You must decide whether the value was

[less than $1,000] [between $1,000 and $10,000 inclusive] [more than

$10,000]. You may use your general knowledge in evaluating the

value of the money, property, or wager cheated or swindled; it is not

required that you have any expert evidence of its value.

The jury may use its common knowledge, and does not require expert evidence, in

evaluating value. Commonwealth v. Hosman, 257 Mass. 379, 386 (1926);

Commonwealth v. McCann, 16 Mass. App. Ct. 990, 991 (1983).

If your verdict is guilty, you must indicate on your verdict slip

whether the Commonwealth has proved beyond a reasonable doubt

that the value of the money, property, or wager cheated and swindled

was [less than $1,000] [between $1,000 and $10,000 inclusive] [more

than $10,000].

See note 2.

G.L. c. 23K, § 39 (b) – Second Theory

The defendant is charged with using a cheating and swindling

device or cheating and swindling game in a gaming establishment. In

order to prove the defendant guilty of this offense, the

Commonwealth must prove the following three (3) things beyond a

reasonable doubt:

First: The defendant used a cheating and swindling device

or cheating and swindling game;

Second: The defendant did so knowingly; and

Third: The defendant did so in a gaming establishment.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant used a cheating and

swindling device or cheating and swindling game. A cheating or

swindling device or cheating and swindling game is:

Instruct on whichever theory below is relied upon by the Commonwealth.

(i) a coin, token or slug other than a lawful coin or legal

tender of the United States or a coin not of the same

denomination as the coin intended to be used by the

gaming establishment while playing or using a slot

machine there, (except that a “cheating and swindling

device” shall not include a token or similar object which is

approved by the commission); or

(ii) a bogus or counterfeit chip, coin or die; a marked card; a

computerized, electronic, electrical, mechanical or

magnetic device; a tool, drill, wire, key or other device

designed, constructed or programmed specifically for: (A)

use in obtaining an advantage in a game; (B) opening,

entering or affecting the operation of a gaming device; or

(C) removing from a slot machine, other gaming device or

drop box any money or other contents; or

(iii) a tool, drill, wire, coin or token attached to a string or wire,

or an electronic or magnetic device to facilitate the

alignment of a winning combination; or

(iv) a gaming device that has been manufactured, serviced,

marked, plugged or tampered with, or placed in a

condition or operated in a manner to: (1) deceive or

attempt to deceive the public; or (2) alter or attempt to

alter the normal random selection of characteristics, the

normal chance of the game or the result of the game at a

gaming establishment.

To prove the second element the Commonwealth must prove

beyond a reasonable doubt that the defendant knew they were using

the cheating and swindling device or game. You may examine any

evidence regarding the defendant’s actions or words, and all of the

surrounding circumstances, to help you determine whether the

defendant knew they were using a cheating or swindling device or

game.

See Instruction 3.140 Knowledge

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant used the cheating and

swindling device or game in a gaming establishment. A “gaming

establishment” consists of the premises approved under a gaming

license, including any gaming area and other nongaming structure

related to the gaming area including, but not limited to, hotels,

restaurants, or other amenities.

If the Commonwealth has proved all three elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must return a verdict of not guilty.

If you determine that the Commonwealth has proved beyond a

reasonable doubt that the defendant is guilty of using a cheating and

swindling device or game in a gaming establishment, you must also

go on to determine the value of the money, property, or wager

cheated or swindled. You must decide whether the value was [less

than $1,000] [between $1,000 and $10,000 inclusive] [more than

$10,000]. You may use your general knowledge in evaluating the

value of the money, property, or wager cheated or swindled; it is not

required that you have any expert evidence of its value.

The jury may use its common knowledge, and does not require expert evidence, in

evaluating value. Commonwealth v. Hosman, 257 Mass. 379, 386 (1926);

Commonwealth v. McCann, 16 Mass. App. Ct. 990, 991 (1983).

If your verdict is guilty, you must indicate on your verdict slip

whether the Commonwealth has proved beyond a reasonable doubt

that the value of the money, property, or wager cheated and swindled

was [less than $1,000] [between $1,000 and $10,000 inclusive] [more

than $10,000].

See note 2.

G.L. c. 23K, § 39 (e) – Third Theory

The defendant is charged with using a cheating and swindling

device or cheating and swindling game in a gaming establishment as

a gaming licensee or the employee of a gaming licensee. In order to

prove the defendant guilty of this offense, the Commonwealth must

prove the following five things beyond a reasonable doubt:

First: The defendant was a gaming licensee or an employee

of a gaming licensee;

Second: The defendant used a cheating and swindling device

or cheating and swindling game;

Third: The defendant either:

a. conducted or operated a game using a

cheating or swindling device or game,

b. displayed a cheating and swindling game for

play, or

c. permitted a cheating and swindling device or

game to be conducted, operated, or

displayed;

Fourth: The defendant did so knowingly; and

Fifth: The defendant did so in a gaming establishment.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant was a gaming licensee

or the employee of a gaming licensee. A “gaming licensee” is a

person or entity who holds a gaming license.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant used a cheating and

swindling device or cheating and swindling game. A cheating or

swindling device or cheating and swindling game is:

Instruct on whichever theory below is relied upon by the Commonwealth.

(i) a coin, token or slug other than a lawful coin or legal

tender of the United States or a coin not of the same

denomination as the coin intended to be used by the

gaming establishment while playing or using a slot

machine there, (except that a “cheating and swindling

device” shall not include a token or similar object which is

approved by the commission); or

(ii) a bogus or counterfeit chip, coin or die; a marked card; a

computerized, electronic, electrical, mechanical or

magnetic device; a tool, drill, wire, key or other device

designed, constructed or programmed specifically for: (A)

use in obtaining an advantage in a game; (B) opening,

entering or affecting the operation of a gaming device; or

(C) removing from a slot machine, other gaming device or

drop box any money or other contents; or

(iii) a tool, drill, wire, coin or token attached to a string or wire,

or an electronic or magnetic device to facilitate the

alignment of a winning combination; or

(iv) a gaming device that has been manufactured, serviced,

marked, plugged or tampered with, or placed in a

condition or operated in a manner to: (1) deceive or

attempt to deceive the public; or (2) alter or attempt to

alter the normal random selection of characteristics, the

normal chance of the game or the result of the game at a

gaming establishment.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant

a. conducted or operated a game using a cheating or swindling

device or game,

b. displayed a cheating and swindling game for play, or

c. permitted a cheating and swindling device or game to be

conducted, operated, or displayed.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that that the defendant knew they were

using the cheating and swindling device or game. You may examine

any evidence regarding the defendant’s actions or words, and all of

the surrounding circumstances, to help you determine whether the

defendant knew they were using a cheating or swindling device or

game.

See Instruction 3.140 Knowledge

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant used the cheating and

swindling device or game in a gaming establishment. A “gaming

establishment” consists of the premises approved under a gaming

license, including any gaming area and other nongaming structure

related to the gaming area including, but not limited to, hotels,

restaurants, or other amenities.

If the Commonwealth has proved all three elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must return a verdict of not guilty.