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Men still face a single count of wire fraud for exploiting bug in the machines

Following an outburst of public outcry over a pair of men facing up to five years in federal prison for "exceeding authorized use" and exploiting a bug in video poker casino machines to win big, the two charged counts under the Computer Fraud and Abuse Act of 1986 (18 USC § 1030) have been dropped.

U.S. District Court for the District of Nevada by Federal Judge Miranda Du cited a recent Ninth Circuit Court of Appeals ruling [PDF], which sought to more strictly confine the ambiguous wording of the CFAA to prevent abuse.  She demanded prosecutors to justify their use under the 9th Circuit's Nosal ruling; federal prosecutors were unable to so they dropped the CFAA charges against co-defendants John Kane, 54, and Andre Nestor, 41.

Assistant U.S. Attorney Michael Chu wrote in a court order [PDF] obtained by Wired, "The United States of America, by and through the undersigned attorneys, hereby moves this Court to dismiss Counts 2 and 3 of the Indictment."

Prosecutors had argued previously that the sequence of buttons needed to activate the programming error constituted "hacking".  But they were unable to defend that opinion in the face of the recent regional scale-back of the CFAA, when defense lawyers argued that the co-defendants were simply playing by the rules of the machine (rules which were broken).

Game King
The pair used their trick on the Game King multi-game machine. [Image Source: IGT]

That leaves a single count of wire fraud against each man.  The wire fraud charges (18 U.S.C. § 1343) are built on the premise that the defendants used phone conversations to plan to defraud the plaintiffs (the casinos), a federal offense.  Of course, given that the feds couldn't even make the accusation that they "hacked" (a form of fraud) stick, the fraud-based claim seems pretty questionable.

Mr. Kane's counsel -- Andrew Leavitt, a veteran LV lawyer -- comments, "The case never should have been filed under the CFAA, it should have been just a straight wire fraud case. And I'm not sure its even a wire fraud. I guess we'll find out when we go to trial.'"

In a previous interview he had stated, "They’re going to have real tough time with the wire fraud.  I never really understood why the federal government took this case in the first place."

Now with one victory in hand he looks to beat back this final federal charge.

Source: U.S. District Court for the District of Nevada via Wired [PDF]

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what rules
By fic2 on 5/8/2013 10:36:51 AM , Rating: 4
when defense lawyers argued that the co-defendants were simply playing by the rules of the machine (rules which were broken).

From my understanding from the previous article the men followed the game rules. Just because they pushed the buttons faster than the game was supposed to allow doesn't mean they didn't follow the rules. The game has the "rules" programmed into it. Those programming rules are the only "rules" that count and they allowed people to press the buttons faster. If the company can't program it's software correctly that is not the fault of the players. I am sure these guys weren't the first to win because of this allowance but one of them was the first to notice what allowed him to win.

But he was definitely stupid in not spreading his winning ways over multiple casinos and multiple days.

RE: what rules
By AntiM on 5/8/2013 11:07:46 AM , Rating: 3
Yes, I would say he operated the machines exactly in the manner in which they were designed/programmed, maybe not in the way they were intended to operate, but nonetheless, a machine can only operate in a manner in which it was designed.
He was rather stupid and greedy though. He could have easily made 50 or 60 thousand a year without raising too many suspicions. If I discovered such a flaw, I wouldn't tell a soul. He killed the proverbial egg laying goose with his greed.

RE: what rules
By BRB29 on 5/8/2013 11:16:59 AM , Rating: 3
Yep, I wouldn't tell anyone either. I would just do it once a month at different casinos. I would also intentionally lose a few.

RE: what rules
By hughlle on 5/8/2013 11:21:17 AM , Rating: 2

I'm sure most people when they were young stood infront of a fruit machine madly bashing buttons because they had no idea what was going on.

RE: what rules
By Solandri on 5/8/2013 11:31:10 AM , Rating: 5
It's a poor choice of words in Jason's writing. It created an unintentional double entendre which you guys are reading the wrong way.

"Rules which were broken" doesn't mean the guy broke the rules. It means the rules were defective and didn't work as intended.

"I'm an Internet expert too. It's all right to wire the industrial zone only, but there are many problems if other regions of the North are wired." -- North Korean Supreme Commander Kim Jong-il

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