Advantage play / cheating / crime....where is the line?

Is your suggestion that, in the entire course of U.S. legal history, no prosecutor has ever dropped charges because they decided that the individual did not commit a crime? If the Wired article is correct, basically, there wasn't a crime that the prosecutors could have got what had happened to fit. You might even call it a, "Legal loophole." In general terms, (not just casinos) that sort of thing is not completely unheard of and new laws are made and/or amended in order to fit the act that the Legislature (at whatever level) wants to be criminal into the law.

So, I would argue that it may often mean that they are not confident they can make their case and get a conviction, and then in perhaps fewer incidences, they simply decide that nothing that fits the definition of any crime was committed.

Also, why do you want so badly for what happened to be a crime?

Here's a link to the complaint:

https://www.wired.com/images_blogs/t...as-exploit.pdf

Here's the docket:

https://www.courtlistener.com/docket...states-v-kane/

Peruse yourself if you like, but here's a breakdown:

-Several months of motions for continuance, bond scheduling, conditions of bond, modified conditions of bond, motions to continue the trial.

-Motion to Dismiss (as to one of the charges filed) essentially for failure to state a claim as well as for vagueness.

-A few months of motions for an extension of time to file the response to the Motion to Dismiss as to that one count.

-Response filed:

-Reply to the response filed:

(Big emphasis on the fact that Nevada Gaming Commission approved the software, and any patron could have theoretically done the same stuff at any time. Any electronics were not a, "Protected computer," as they are publicly available around the clock.)

https://www.courtlistener.com/docket...states-v-kane/

-Bunch of nothing for several months, some continuances, then a change of judges.

-Recommendation of a Federal Magistrate Judge that the motion to dismiss be granted:

https://www.courtlistener.com/docket...states-v-kane/

-More continuances for months, another judge change.

-Counts two and three dismissed...by Motion made by USA: (This means the prosecutors believe the USA did not state a complaint for which they could be charged, even accepting all facts USA stated as correct):

https://www.courtlistener.com/docket...states-v-kane/

-More continuances

-USA moves to dismiss the whole thing, Count 1, the only one remaining.

https://www.courtlistener.com/docket...states-v-kane/

Clearly, they decided that they did not have a case or that it was unprovable. The motions to dismiss as to counts two and three (at the time Count 1 was still possible) indicates that USA definitely decided they had nothing illegal on them as to those two counts.

While these two guys eventually were let off, they suffered in multiple ways for their greedy stupidity. I can understand Nestor being a total idiot, but Kane seemed to be an accomplished musician with at least half a brain. But how does someone actually LOSE a half million in one year at Boulder Station of all places? That tells me all I need to know about the two idiots who killed this play for me.

Quote:

---

Originally Posted by smurgerburger

Here's the judge's grant of the defendants' motion to dismiss: http://www.volokh.com/wp-content/upl...mmendation.pdf.

The judge determined that they did not commit a crime under Computer Fraud And Abuse Act, which is the federal law they were charged under. It looks like the main reason is that video poker machines are not "protected computers" which would place certain misuses of them under federal jurisdiction.

I don't know if there are parallel state statutes that could have been applied by state prosecutors but judging from the fact that no state prosecutors went after them there probably aren't.

---

That's basically right, except the judge did not grant the motion to dismiss because he had no power to. It was a recommendation that the Motion to Dismiss be granted, but the judge who wrote it was not the judge assigned to the case, so that would not have been binding. The USA itself would later file a different motion as to dismissing that count (as well as count two against Kane) and then sometime later dismiss count 1 against both.

What probably happened as to counts two and three was that the judge indicated to them that those counts would be dismissed, unless the USA wanted to just go ahead and dismiss them themselves. The USA wrote the Order to dismiss, which is actually somewhat common. An attorney for either party often writes an order as long as it is not one that is detrimental to the other party and the judge just reads and signs it. Sometimes a judge will directly tell an attorney to do this.

But, this is even more damning as to whether or not a crime was committed because, as to counts two and three, it was ultimately the prosecution to decide that no crime was committed...at least not under the counts they brought. They could have theoretically filed a Motion to Modify the original complaint to add new counts, but they never did, probably because they didn't think there were any other laws that had even conceivably been broken.

As far as Kane and Nestor, they were in state custody at the time the feds got to them, but it does not appear that any states pursued charges after the federal dismissal.

The other (and perhaps most) important thing to understand is that the two sides (you can read the documents if you don't believe me) basically agreed as to the facts of the case relating what physically occurred. The Defense Attorney for Nestor stipulated that the games were played at smaller denominations and the series of buttons led to jackpots being paid as if they were greater denominations. There was almost no disagreement as to how this occurred, only whether or not it was, "Complex."

The entire question was strictly one of legal interpretation as to whether or not the actions in question could be bent to fit the definition of a crime. It doesn't help that a body, one that is literally a function of the Nevada State Government, had literally approved the device to operate in casinos in the way that it did, in fact, operate.

So, for anyone who says, "Illegal," the USA said, "Not Illegal," and by USA I mean the prosecutors themselves. At least under the charges they were trying to bring.

Those are the facts, so if anyone says, "Illegal," the facts of what played out in the judicial system are absolutely against your opinion. Would a different judge or prosecutor have perhaps seen it differently? Sure, that's possible, but it's not what happened.

Quote:

---

Originally Posted by kewlJ

Unowme, you asked a question earlier about hole carding and why someone would thing differently about that. Was that directed at me because it wasn't clear who you were asking.

Mission: prosecutors chose not to prosecute and drop charges everyday. It NEVER means there was no crime. It means the are not confident they can make their case and get a conviction.

This being a new kind of case the feds probably made some mistakes that lead to some of the pre-trial motions going against them which weakened their chance of winning. The Feds jumped in and took over this case. That was probably a bad move. They should have let the state's go first and if the same mistakes and pretrial ruling went against them, the Feds could have had a second crack. (Which wouldn,t be double jeopardy). But jumping in they had only one chance and when mistakes were made and pretrial motions went against them....they were done.

---

They tried to get them for computer hacking or whatever you want to call it. And that's because they had no case otherwise. They knew a jury would never convict because they didnt do anything illegal.

Quote:

---

Originally Posted by Mission146

Also, why do you want so badly for what happened to be a crime?

---

Because it is wrong. Plain and simple. Manipulating a machine to give you a higher payout than what you were playing and won is wrong. Accepting that money is stealing. Now I am not going to win an argument with people that think stealing isn't wrong. So I am going to stop trying.

But I am seriously surprised at you Mission. Maybe I am reading it wrong but I get the feeling most of these guys aren't saying it isn't wrong. They are saying they just don't care. There is an AP mentality that anything goes against the casinos. That is a different argument I don't agree with that. Wrong is wrong. Theft is theft and taking something under false pretenses like this is theft. But Mission, unless you are just yanking my chain, it honestly seems like you don't understand between right and wrong? You have kids don't ya? What an example you must set. :(

So just out of curiosity Mission, since you seem to have no line between right and wrong, or if you do it is god knows where, let me try to figure out where it might be? Older guy drops his TITO ticket? Do you distract him, pick it up and keep it? Anything goes right? Is it ok, to follow a patron into the mens room, club him and steal his money as you and several others seem to think it ok to steal from the casinos? Exactly where is your line on right and wrong? Or are there absolutely no lines once you walk through the casino doors. It is get every cent at any cost. :confused:

You guys are getting all fancy and technical. The mistake made was when they tried to make it into a "hacking case". It wasn't a hacking case. The judge was right, nobody hacked anything. The case that it should have been was a case about theft. This was the big mistake. They didn't need to make it about any more than that. They accepted money under false pretenses (that they had won it playing higher stakes than they actually had). legally....THAT is theft.

I am a law-abiding citizen, I was an altar boy for 13 years, and if I found this play at playable limits for me I would do the exact same thing again. Why? Because it is the ultimate in a video poker advantage, and it it a dream come true X 1000. It hurts no one, it has not been deemed illegal, and you feel like a casino king while you're working it.

Kew, stop all the bs. If you came across this play you'd jump on it and stay on it faster and longer than anything you've done in your life. jbjb claimed it was embezzlement. Embezzlement is theft by an employee. That tells me he's unhappy it wasn't him that found this. You are too.

IMO -- idk about the Nestor/Kane play being illegal/cheating/etc. Nor do I really care to argue over it, but I lean more towards the illegal side of it. That doesn't mean I wouldn't play it, though.

As far as regular stuff where you aren't doing anything wonky, let's say a machine is 5c denom but the RF is $4k when it "should" be $200...I would have absolutely no problem playing something like that and it's 100% legal.

Quote:

---

Originally Posted by Rob.Singer

I was an altar boy for 13 years,

---

Congratulations Rob. That really means nothing. The really weird thing is it was from age 28 to 41. ;)

I had a friend who was an alter boy. He worked Mass every Sunday, and he was the worst kid in the neighborhood. Let the parking brake off a car and let it roll down the hill and smash into a house at age 10 kind of Kid. Went to Juvey for stealing and eventually to prison for auto theft.

Quote:

---

Originally Posted by kewlJ

You guys are getting all fancy and technical. The mistake made was when they tried to make it into a "hacking case". It wasn't a hacking case. The judge was right, nobody hacked anything. The case that it should have been was a case about theft. This was the big mistake. They didn't need to make it about any more than that. They accepted money under false pretenses (that they had won it playing higher stakes than they actually had). legally....THAT is theft.

---

Oh come on. If it was really 'theft' or 'cheating' it would have been prosecuted in Nevada. They don't take kindly to stealing from a Casino in Las Vegas. Tell us your theory as to why they were guilty of theft but weren't prosecuted in Nevada? My guess is that no crime matched what they did.

They played the machine and the machine grossly overpaid them. That's a malfunction and the Casino didn't have to pay them. But they did. The players didn't have any inside knowledge. They didn't open the machine, steal chips, cap a bet, mark cards or anything commonly called cheating. They played the game and it overpaid them. The Manufacturer should have done a better job of testing before they ever put a flawed gaming device in a Casino. It's like if you found a dealer that kept paying everybody double on blackjacks because he's an idiot. Do you think they'd arrest you for theft? Nope. They'd fix the machine...I mean fire the dealer.....because it's not your problem if THEY don't pay you correctly...and it's certainly not criminal.

Quote:

---

Originally Posted by kewlJ

Quote:

---

Originally Posted by Rob.Singer

I was an altar boy for 13 years,

---

Congratulations Rob. That really means nothing. The really weird thing is it was from age 28 to 41. ;)

I had a friend who was an alter boy. He worked Mass every Sunday, and he was the worst kid in the neighborhood. Let the parking brake off a car and let it roll down the hill and smash into a house at age 10 kind of Kid. Went to Juvey for stealing and eventually to prison for auto theft.

---

I served a mass during the week and one on Sunday. Maybe that's why I've never been in trouble in my life. You see, it DOES mean something. :)

Quote:

---

Originally Posted by unowme

Quote:

---

Originally Posted by kewlJ

You guys are getting all fancy and technical. The mistake made was when they tried to make it into a "hacking case". It wasn't a hacking case. The judge was right, nobody hacked anything. The case that it should have been was a case about theft. This was the big mistake. They didn't need to make it about any more than that. They accepted money under false pretenses (that they had won it playing higher stakes than they actually had). legally....THAT is theft.

---

Oh come on. If it was really 'theft' or 'cheating' it would have been prosecuted in Nevada. They don't take kindly to stealing from a Casino in Las Vegas. Tell us your theory as to why they were guilty of theft but weren't prosecuted in Nevada? My guess it that no crime matched what they did.

They played the machine and the machine grossly overpaid them. That's a malfunction and the Casino didn't have to pay them. But they did. The players didn't have any inside knowledge. They didn't open the machine, steal chips, cap a bet, mark cards or anything commonly called cheating. They played the game and it overpaid them. The Manufacturer should have done a better job of testing before they ever put a flawed gaming device in a Casino. It's like if you found a dealer that kept paying everybody double on blackjacks because he's an idiot. Do you think they'd arrest you for theft? Nope. They'd fix the machine...I mean fire the dealer.....because it's not your problem if THEY don't pay you correctly...and it's certainly not criminal.

---

This is all just simple common sense.

Methinks kew is taking the contrarian position just to stir the pot.

Quote:

---

Originally Posted by unowme

Quote:

---

Originally Posted by kewlJ

You guys are getting all fancy and technical. The mistake made was when they tried to make it into a "hacking case". It wasn't a hacking case. The judge was right, nobody hacked anything. The case that it should have been was a case about theft. This was the big mistake. They didn't need to make it about any more than that. They accepted money under false pretenses (that they had won it playing higher stakes than they actually had). legally....THAT is theft.

---

Oh come on. If it was really 'theft' or 'cheating' it would have been prosecuted in Nevada. They don't take kindly to stealing from a Casino in Las Vegas. Tell us your theory as to why they were guilty of theft but weren't prosecuted in Nevada? My guess it that no crime matched what they did.

They played the machine and the machine grossly overpaid them. That's a malfunction and the Casino didn't have to pay them. But they did. The players didn't have any inside knowledge. They didn't open the machine, steal chips, cap a bet, mark cards or anything commonly called cheating. They played the game and it overpaid them. The Manufacturer should have done a better job of testing before they ever put a flawed gaming device in a Casino. It's like if you found a dealer that kept paying everybody double on blackjacks because he's an idiot. Do you think they'd arrest you for theft? Nope. They'd fix the machine...I mean fire the dealer.....because it's not your problem if THEY don't pay you correctly...and it's certainly not criminal.

---

They weren't prosecuted in Nevada because the feds took over the case. And the Feds charged Nestor and Kane with conspiracy and violations of the Computer Fraud and Abuse Act. Passed in 1986, the CFAA was enacted to punish hackers who remotely crack computers related to national defense or banking. (taken from the article). And that is just weird. I mean this clearly had nothing to do with national defense or banking. Being a new kind of case, they really screwed it up. The charge should have been theft or something related to that, NOT the hacking angle.

Quote:

---

Originally Posted by Rob.Singer

Methinks kew is taking the contrarian position just to stir the pot.

---

I am not Rob. Here is a paragraph from the article that for me sums it up nicely.

Nestor got the first significant winning hand of the trip: four fours and a kicker for $500. He tapped the magic sequence, hit Cash Out, and watched with delight as his $500 became a $10,000 jackpot. He tipped the slot attendant $20.

He played and won $500. He cashed out $10,000. Anyone who doesn't see something wrong with that, has abandoned all sense of right and wrong. They just have.

Rob, I want to ask you a question and I am trusting you to give me an honest answer. Either Today or yesterday, you mentioned that you had never even shared what you were doing with your family. Why not? Yeah, I know as AP's we all go through that some of our family and friends just don't have the slightest understanding of what we do, so we don't talk about it. But be honest: There would have been some in your family (maybe your adults kids) who don't see it as you do....having done nothing wrong. And you wanted to avoid having this same discussion and argument with them didn't you?

Quote:

---

Originally Posted by kewlJ

Quote:

---

Originally Posted by unowme

Quote:

---

Originally Posted by kewlJ

You guys are getting all fancy and technical. The mistake made was when they tried to make it into a "hacking case". It wasn't a hacking case. The judge was right, nobody hacked anything. The case that it should have been was a case about theft. This was the big mistake. They didn't need to make it about any more than that. They accepted money under false pretenses (that they had won it playing higher stakes than they actually had). legally....THAT is theft.

---

Oh come on. If it was really 'theft' or 'cheating' it would have been prosecuted in Nevada. They don't take kindly to stealing from a Casino in Las Vegas. Tell us your theory as to why they were guilty of theft but weren't prosecuted in Nevada? My guess it that no crime matched what they did.

They played the machine and the machine grossly overpaid them. That's a malfunction and the Casino didn't have to pay them. But they did. The players didn't have any inside knowledge. They didn't open the machine, steal chips, cap a bet, mark cards or anything commonly called cheating. They played the game and it overpaid them. The Manufacturer should have done a better job of testing before they ever put a flawed gaming device in a Casino. It's like if you found a dealer that kept paying everybody double on blackjacks because he's an idiot. Do you think they'd arrest you for theft? Nope. They'd fix the machine...I mean fire the dealer.....because it's not your problem if THEY don't pay you correctly...and it's certainly not criminal.

---

They weren't prosecuted in Nevada because the feds took over the case. And the Feds charged Nestor and Kane with conspiracy and violations of the Computer Fraud and Abuse Act. Passed in 1986, the CFAA was enacted to punish hackers who remotely crack computers related to national defense or banking. (taken from the article). And that is just weird. I mean this clearly had nothing to do with national defense or banking. Being a new kind of case, they really screwed it up. The charge should have been theft or something related to that, NOT the hacking angle.

---

The Feds 'took over the case' is no excuse. You can be convicted of state crimes and federal crimes for exactly the same offense or for different crimes arising with the same facts. If Nevada thought they had a case for theft, they would have prosecuted it....especially after the federal charges were dropped. The bottom line is that it wasn't criminal. It was a machine malfunction that they took advantage of. The Casinos should have withheld payment. Game King shouldn't have made a machine that fucked up the payoffs. Just like dealers shouldn't expose their hole cards. There's a big difference between taking advantage of a dealer or machine error and capping a bet or using slugs.

Quote:

---

Originally Posted by unowme

Quote:

---

Originally Posted by kewlJ

Quote:

---

Originally Posted by unowme

Oh come on. If it was really 'theft' or 'cheating' it would have been prosecuted in Nevada. They don't take kindly to stealing from a Casino in Las Vegas. Tell us your theory as to why they were guilty of theft but weren't prosecuted in Nevada? My guess it that no crime matched what they did.

They played the machine and the machine grossly overpaid them. That's a malfunction and the Casino didn't have to pay them. But they did. The players didn't have any inside knowledge. They didn't open the machine, steal chips, cap a bet, mark cards or anything commonly called cheating. They played the game and it overpaid them. The Manufacturer should have done a better job of testing before they ever put a flawed gaming device in a Casino. It's like if you found a dealer that kept paying everybody double on blackjacks because he's an idiot. Do you think they'd arrest you for theft? Nope. They'd fix the machine...I mean fire the dealer.....because it's not your problem if THEY don't pay you correctly...and it's certainly not criminal.

---

They weren't prosecuted in Nevada because the feds took over the case. And the Feds charged Nestor and Kane with conspiracy and violations of the Computer Fraud and Abuse Act. Passed in 1986, the CFAA was enacted to punish hackers who remotely crack computers related to national defense or banking. (taken from the article). And that is just weird. I mean this clearly had nothing to do with national defense or banking. Being a new kind of case, they really screwed it up. The charge should have been theft or something related to that, NOT the hacking angle.

---

The Feds 'took over the case' is no excuse. You can be convicted of states crimes and federal crimes for exactly the same offense or for different crimes arising with the same facts. If Nevada thought they had a case for theft, they would have prosecuted it....especially after the federal charges were dropped. The bottom line is that it wasn't criminal. It was a machine malfunction that they took advantage of. The Casinos should have withheld payment. Game King shouldn't have made a machine that fucked up the payoffs. Just like dealers shouldn't expose their hole cards. There's a big difference between taking advantage of a dealer or machine error and capping a bet or using slugs.

---

And now I have a question for you unowme. Have you at any time posted on this site under an different handle? I find it very odd that you joined yesterday, for just this discussion. If you are better known under a different handle, is there a reason, you don't want to post these opinions under that handle?

Ok, so "a machine malfunction that they took advantage of" :confused:;) That's sugar-coating it don't ya think? Making it sound so innocent. They worked hard to figure out how to trigger this malfunction so as to receive money they were not entitled to. Again that is the definition of theft. What does it take for you to accept that?

But let's use your all-so-innocent scenario. Suppose a machine, any machine truly malfunctions spitting out a voucher for say $400 more than it should. IF THE PLAYER EXCEPTS THAT MONEY IT IS THEFT!!! Just the same as if an ATM malfunctions and spits out $400 to much. IF THE PERSON ACCEPTS TBAT MONEY IT IS THEFT!

You simple cannot change this definition. You can say as some here have, that I just don't care I would take it, but for god sakes stop trying to say it isn't wrong. It's just ridiculous.

Oh. Here's another one. You find a truly biased roulette wheel and exploit the Hell out of it over a period of months. Casinos have been taken for millions because of this in the distant past. Should you be arrested for theft? Of course not. It's the Casino's responsibility to make sure their games are working properly...not yours. How is that different that a malfunctioning Video Poker machine? I don't think it is.

What I found interesting about this story (that nobody is commenting on) is that neither person seems to have any ethics. Neither one could keep their word to each other...their greed turned them against each other. Nestor promised Kane he'd give him half his winnings for bringing him in on this play and then immediately reneged on his word when he started winning. His argument was he'd have to pay half his winnings in taxes, which was more than he'd earn after taxes. This is incorrect....the top income bracket is 37%.

As far as Kane losing $500,000 to the casinos, I think he just said this to gain sympathy. He lived in a nice house so it doesn't look like he was a gambling addict. He was the smart one in their partnership.

It also doesn't look like this play was too complicated. IGT brought in a 25 year old programmer from USC and he figured it out in a couple days.

This is an interesting story. Like I've said before, I doubt if the two goofballs have been totally honest in this article. I expect Kane spent a lot of time trying to understand how this machine worked when he bought one for his house. This is where he figured out to exploit it. It took him 3 years to do what a USC college kid figured out in a couple days.

What would I have done if I had found this play? Probably exploit it and tried to stay under the casino's radar. With this said, I still think what they did was unethical and probably illegal, but our courts didn't have enough to move forward with their case. I'm with Kj here. Do I think Ron Singer also exploited this play too? No. His story doesn't add up. This is another place where kj and i are in agreement. And most of the time I don't agree with Kj.