IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA

IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ) ) Plaintiff, ) ) vs. ) Case No. CF-2013-1662 ) RICHARD WAYNE MARDIS, ) KAREN MAE CLIFTON, ) and JAMES ORR STEELE, ) ) Defendants. ) DEFENDANT MARDIS BRIEF FOR PRELIMINARY HEARING I. INTRODUCTION On March 18, 2013, Defendant Richard Mardis ( Mardis ), in addition to co-defendants Karen Clifton and James Steele, was charged with two counts: (1) conspiracy to violate the Oklahoma Anti-Commercial Gambling Act, and (2) commercial gambling. The conspiracy charge states that Clifton, Steele, and Mardis, acting jointly, willfully, and knowingly agreed with each other to violate the provisions of the Oklahoma Anti-Commercial Gambling Act, and in furtherance of this conspiracy did commit the following overt act Information at p. 1. The Information states Mardis (along with Steele) received money which constituted wagers for a chance to win money. Information at p. 2. The commercial gambling charge states that Clifton, Steele, and Mardis, acting conjointly, knowingly and willfully established and/or participated in an illegal commercial gambling operation and that a room was established for the purpose of receiving recording or forwarding bets or offers to bet and where, in fact, such bets were received and recorded Information at p. 3. 1 Due to the uniqueness of this case, Mardis 1 Mardis has filed a Motion to Make Information More Definite and Certain due to the vagueness of the charges. The hearing is set for August 20, 2013.

submits the following brief of the elements that the State must prove at the Preliminary Hearing set for August 16, 2013. II. BURDEN OF PROOF IN PRELIMINARY HEARING The burden of proof at a preliminary hearing is provided by statute: [a] preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether a crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime. 22 O.S. 258. The defendant is to be discharged after the preliminary hearing if it appears either that a public offense has not been committed, or that a public offense has been committed, but there is not sufficient cause to believe the defendant guilty thereof 22 O.S. 262. Thus, generally speaking, at preliminary examination a magistrate is charged with making two separate determinations based on the evidence presented: whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant is the person that committed the crime. State v. Berry, 799 P.2d 1131, 1132 (Okl.Cr.1990). As discussed below, case law suggests the burden of proof for these two separate inquiries is distinct. 2 A. Whether a crime has in fact been committed To bind an accused over at a preliminary hearing, the State must present sufficient evidence to show that a crime was in fact committed. State v. Swicegood, 1990 OK CR 48, 795 P.2d 527, 529. When considering whether or not a crime has been committed, the State is required to prove each of the elements of the crime. State v. Rhine, 773 P.2d 762, 764 (Okl.Cr.1989). This part of the test is totally independent from the involvement of the defendant and the magistrate must consider the proof established by the State in light of the statutory 2 See State v. Berry, 1990 OK CR 73, 799 P.2d 1131, 1133 ( These two elements of the test are supported by entirely different proof requirements. ) 2

elements of the given offense. State v. Berry, 1990 OK CR 73, 799 P.2d 1131, 1133. If the elements of the crime are not proven, then the fact of the commission of a crime cannot be said to have been established and the accused cannot be held for trial on the crime as charged. Id. In Berry, the Oklahoma Court of Criminal Appeals stated that the State s burden of proving that a crime has in fact been committed is a higher burden of proof than is required for the second part of the preliminary analysis. Id. B. Whether there is probable cause to believe that the defendant committed the crime With regards to the second inquiry, whether there is sufficient cause to believe the defendant committed the crime, the statute provides probable cause as the burden of proof. See 22 O.S. 258. Cases define this as requiring the State to establish that it is reasonable to believe that the defendant was involved in the commission of the offense. See Berry at 1133 (citing State v. Edmondson, 536 P.2d 386, 392 (Okl.Cr.1975)). The State may prove its case circumstantially, but the circumstantial evidence must coincide with [the defendant s] guilt and be inconsistent with innocence. State v. Heath, 2011 OK CR 5, 7, 246 P.3d 723 at 725 (citing State v. Davis, 1991 OK CR 123, 7, 823 P.2d 367, 369). III. ELEMENTS FOR COUNT II: COMMERCIAL GAMBLING The statute under which Mardis is charged states that [c]ommercial gambling is receiving, recording or forwarding bets or offers to bet or, with intent to receive, record or forward bets or offers to bet, possessing facilities to do so 21 O.S. 982. Thus, in order to hold Mardis for trial on the commercial gambling charge, the State must present evidence which establishes sufficient cause to believe that Mardis received, recorded or forwarded bets or offers to bet or possessed facilities with the intent to do so. Additionally, a commercial gambling charge under section 982 requires an averment of knowledge, and it is not the intent of the statute to 3

prosecute those who unknowingly or without criminal intent receive bets. State v. Koo, 1982 OK CR 93, 647 P.2d 889, 891. A. Distinction between a bet and offers of purses, prizes or premiums A bet is defined as a bargain in which the parties agree that, dependent upon chance, or in which one of the parties to the transaction has a valid reason to believe that it is dependent upon chance, one stands to win or lose something of value specified in the agreement. See 21 O.S. 981(1). A bet does not include offers of purses, prizes or premiums to the actual participants in public and semipublic events, as follows, to wit: rodeos, animal shows, hunting, fishing or shooting competitions, expositions, fairs, athletic events, tournaments and other shows and contests where the participants qualify for a monetary prize or other recognition. This subparagraph further excepts an entry fee from the definition of a bet as applied to enumerated public and semipublic events. 21 O.S. 981(1)(c). There is little case law in Oklahoma interpreting the exclusion of certain activities from the definition of bet contained in section 981(1)(c). 3 However, words employed in a statute having a definite and well-known meaning at common law are presumed to have been used in the sense that they were understood at common law, and a statute should be construed accordingly. See State v. Barnett, 60 Okla. Crim. 355, 69 P.2d 77, 85 (1936). Other jurisdictions have interpreted the phrase purses, prizes or premiums in a similar context, and the phrase has a definite and well-known meaning at common law. In the case of offers of purses, prizes, or premiums, the person or association offering the same has no chance of gaining back the purse, prize or premium offered but, if he abides by his offer, he must lose it, whereas in the case of a stake, bet, or wager, each party interested therein has a 3 The only case directly interpreting section 981 focused on the element of chance. See State v. Koo, 1982 OK CR 93, 647 P.2d 889, 892. 4

chance of gain and suffers a risk of loss. See Pompano Horse Club v. State, 111 So. 801, 813 (Fla. 1927). In other words, in the case of a bet, the money belongs to those who post it, every one of whom has a chance to win it. Toomey v. Penwell, 245 P. 943, 945 (Mont. 1926). Meanwhile, in the case of a purse, prize or premium the money belongs to the person or association offering it, and such person or association has no chance to win it, but rather is certain to lose it. Id. Thus, when an association sponsors or conducts contests for purses, prizes or premiums, and the moneys paid to such association for the right of participation in such contest become part of the association s general assets, and the purses, prizes or premiums are paid out to contestants without regard to such contributions, such activities will not be considered a bet. See, e.g., People ex rel. Lawrence v. Fallon, 46 N.E. 296, 297 (N.Y. 1897). It seems clear, then, that not every contest charging an entry fee and awarding a prize becomes an illegal gambling operation and an entrance fee does not suddenly become a bet if a prize is awarded. State v. American Holiday Ass n, 151 Ariz. 312, 314, 727 P.2d 807, 809 (1986) (citing Faircloth v. Central Florida Fair, Inc., 202 So.2d 608, 609 (Fla.Dist.Ct.App.1967). As the Supreme Court of Arizona stated, if the combination of an entry fee and a prize equals gambling, then golf tournaments, bridge tournaments, local and state rodeos or fair contests, and even literary or essay competitions are all illegal gambling operations State v. American Holiday Ass n, 151 Ariz. at 314, 727 P.2d at 809. See, e.g., State v. Prevo, 44 Haw. 665, 673, 361 P.2d 1044, 1049 (1961) (describing construction of gambling statute which would make criminal common games and contests as a patent absurdity which was clearly not intended by the legislature ). Finally, whether the association hopes to make or actually does make a profit as a result of the contest is irrelevant. Id. at 810 ( [w]e can discern no reason why the profitability of a business should impact on whether entrance fees 5

are characterized as bets or wagers ). In the present case, the organization is a non-profit organization and there is no evidence that the organization profited by the event. B. The pooling sheets are optional entry fees paid by the actual participants of the AU Convention Race for the chance to win purses, prizes or premiums Here, the State cannot provide sufficient evidence to convince the Court that each of the statutory elements of commercial gambling are present and thus that the crime of commercial gambling was committed. The statutory elements of commercial gambling relative to this case are: (1a) receiving, recording or forwarding (2a) bets or offers to bet; or in the alternative, (1b) possessing facilities (2b) with intent to (3b) receive, record or forward (4b) bets or offers to bet. See 21 O.S. 982(A)(2). To start, the Affidavit of Probable Cause in this case lists the elements of commercial gambling as consideration, the element of chance, and the element of prize. See Affidavit of Probable Cause at p. 13. However, these are the elements of a lottery, not commercial gambling. See 21 O.S. 1051(A); State ex rel. Draper v. Lynch, 1943 OK 215, 137 P.2d 949, 953 (stating the three necessary elements of a lottery are prize, chance, and consideration). The Information does correctly list the elements of commercial gambling, stating that a room was established for the purpose of receiving recording or forwarding bets or offers to bet and where, in fact, such bets were received and recorded Information at p. 3. Despite the State s error, the fact remains that there is not sufficient evidence to show that any bets were involved in the AU convention race, and the State s argument that the pooling sheets were bets is incorrect. In actuality, the pooling sheets fit within the exclusion listed in section 981(1)(c) as optional entry fees giving the actual participants of the AU convention race a chance to win additional purses, prizes or premiums. The State makes much of the fact that there were two or more separate entry fees: the fee participants paid to create the capital prize and the optional entry fees participants could 6

choose to pay at the convention to compete for additional prizes awarded. In the State s view, once the initial entry fees were paid, any other entry fee used to create a prize was a bet. However, another court declined to adopt the State s reasoning in a case with very similar facts to the current situation. In that case, the Supreme Court of Arizona held that neither initial entrance fees nor voluntary additional fees which participants paid to enter a contest were bets or wagers. See State v. American Holiday Ass n, Inc., 151 Ariz. 312, 727 P.2d 807. American was a California corporation that conducted word games throughout the country. Id. Participants paid initial entry fees to enter American s games, with the ultimate prize being an automobile. Id. at 808. Each contest consisted of several levels or playoffs, and participants had the option of paying additional fees at each level to increase their potential cash prizes. Id. The question became whether the fees charged or collected by American were bets or wagers. Id. at 808-809. In discussing the initial entry fees, the court noted that American s word games lacked the attributes of what we commonly refer to as gambling, including the fact that a nonparticipating party would be awarding the prize. Id. at 809. The State of Arizona argued that, even if the initial entry fees could not be characterized as such, the additional fees paid by some participants were bets or wagers. Id. at 811. The court noted that these optional fees were more problematic because the participant had already entered the contest and the additional payment merely allowed him or her to compete for a bigger prize in the same game. Id. However, the court declined to characterize these additional fees as bets or wagers, stating that the additional payments are nothing more than an additional entrance fee charged those who wish to compete in a higher prize bracket. Id. Additionally, the court analyzed the facts against the common understanding of gambling and noted that paying an entrance fee in the hope of winning prize money to be paid by a nonparticipating party to successful participants is a 7

traditional part of American social life. Id. at 812. Finally, the court addressed the facts in light of state-sponsored gambling such as horse racing and the lottery, pointing out that a different decision would make the sponsor of a crossword puzzle contest a criminal while his next door neighbor, betting a dollar with the state to win a million in the state lottery a virtuous citizen. Id. A similar result has been reached in the federal courts. In Humphrey v. Viacom, Inc., 06 2768 DMC, 2007 WL 1797648 (D.N.J. June 20, 2007), the court declined to characterize the entry fee which was paid to participate in an online fantasy football league as a wager, bet, or stake. Humphrey at *9. There, participants paid a fee to purchase a fantasy football team and the related services. Id. at *1. At the end of the season, the winner of each league is awarded a prize. Id. at *2. The plaintiff claimed the entry fees violated several of New Jersey s qui tam gambling loss-recovery laws and sought to recover the fees. Id. The defendants argued that the claim failed as a matter of law because the entry fee was not a wager, bet or stake. Id. at *7. In holding the entry fees were not bets or wagers, the court noted that the defendants were neutral parties they do not compete for the prizes and are indifferent as to who wins the prizes. Defendants simply administer and provide internet-based information and related support services for the games. Id. at *7. Here, the optional entry fees are almost identical to the optional fees in American Holiday Ass n. Some participants in the AU convention race chose to submit optional entry fees for the chance to win additional prize money. The optional fees were paid to the AU, not the Defendants. When the winner was announced, the AU became unconditionally obligated to pay out the additional prize money to the winning participants. Moreover, the AU as an organization had no chance of winning the additional prize money, but was certain to lose it upon completion 8

of the race. Like the defendants in Humphrey, the AU was a neutral party that did not compete for prizes but simply administered and provided support for the race. Furthermore, there is no evidence that Mardis paid any entry fees, initial or optional, nor did he have a bird in the race. The State is without any evidence that Mardis received any of the entry fees. At best, the State s evidence suggests that he simply helped coordinate the convention and assisted with making sure it went smoothly because pigeon racing is his hobby. This is not a case where Mardis, or anyone at the convention, is guilty of something so morally repugnant as to classify them a felon, which is what a conviction in this case would do. Because the additional entry fees were not bets, the charge of commercial gambling should be dismissed. IV. ELEMENTS FOR COUNT I: CONSPIRACY TO VIOLATE THE OKLAHOMA ANTI-COMMERCIAL GAMBLING ACT The State also alleges a conspiracy between Mardis, Steele and Clifton to violate the Oklahoma Anti-Commercial Gambling Act. Generally, to constitute the crime of conspiracy, two essential elements are required: an agreement between two or more people to commit an unlawful act, and some overt act by one or more of the parties in furtherance of the conspiracy, or to effect its purpose. State v. Davis, 1991 OK CR 123, 823 P.2d 367, 369-70. In the context of this case, a conspiracy is any agreement, combination or common plan or scheme by two or more persons, coupled with an overt act in furtherance of such agreement, combination or common plan or scheme, to violate any section of the Oklahoma Anti-Commercial Gambling Act. 21 O.S. 988(A). In a conspiracy prosecution, the critical inquiry is whether the circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists. United States v. Kendall, 766 F.2d 1426, 1431 (10 th Cir. 1985). 9

Here, there is no evidence which would suggest an agreement to receive bets in violation of the Oklahoma Anti-Commercial Gambling Act existed between Karen Clifton, James Steele, and Richard Mardis. The State s evidence suggests that Karen Clifton, as Executive Director of the AU, made the arrangements with the Sheraton Hotel to host the convention; that James Steele helped participants with their optional entry fees at the convention; and that Mardis helped coordinate the convention as well as handled and transported the birds. 4 There is no evidence that any of the Defendants entered a bird into the race. Clifton told the investigating officer, Detective Kimberlin, that she never understood the optional entry fees some participants paid at the convention. Defendants Steele and Mardis were volunteers at the convention. There simply is no evidence, direct or circumstantial, that points to the existence of an agreement between Clifton, Steele and Mardis to receive and record bets during the convention. Because the State cannot present sufficient evidence to establish the existence of such an agreement, the conspiracy charge should also be dismissed. CONCLUSION In light of the foregoing, Richard Mardis would ask the Court to dismiss both charges for lack of sufficient evidence to bind him over for trial. The commercial gambling charge should be dismissed because the optional entry fees which the State characterizes as bets are actually excluded from the definition of a bet by 21 O.S. 981(1)(c). Additionally, the conspiracy charge should be dismissed because, without a bet, there cannot be an unlawful agreement between Mardis and another person to receive bets in violation of the Oklahoma Anti-Commercial Gambling Act. 4 The birds are all gathered at the convention and then taken to the location where they are released to fly back to the lofts/end of the race. 10

Respectfully submitted, Conner L. Helms, OBA #12115 HELMS & UNDERWOOD One NE Second St., Suite 202 Oklahoma City, Oklahoma 73104 Telephone: (405) 319-0700 Facsimile (405) 319-9292 ATTORNEY FOR DEFENDANT RICHARD WAYNE MARDIS CERTIFICATE OF SERVICE I hereby certify that on August, 2013, a true and correct copy of the above and foregoing was hand delivered to the following counsel of record: Angela Sonaggera Robert Mccampbell Assistant District Attorney Broadway Ste 1700 320 Robert S. Kerr, Ste 505 Oklahoma City, OK 73102 Oklahoma City, OK 73102 Attorney for Karen Mae Clifton Michael Hoover Peter Haddock 119 N Robinson Assistant District Attorney Oklahoma City, OK 73102 320 Robert S. Kerr, Ste 505 Attorney for James Orr Steele Oklahoma City, OK 73102 Conner L. Helms 11