It's Not Paranoia If...
(From Blackjack Forum XXIV #1, Winterr 2004/05)
By James Grosjean
© Blackjack Forum 2004
[Authorís Note: In my description of the trial against the Imperial Palace (IP), quoted matter comes from direct trial testimony given under oath, available in the official court transcript, which we expect to make available online in the future (or which can be purchased from the court reporter, Sonia L. Riley). Questions and answers are not necessarily presented in the same order as the trial testimony, and I have sometimes made minor editing changes for clarity or length.
I try to indicate these changes using brackets for changed words, such as replacing "he" with "[Grosjean]," or ellipses for omitted material. I include numerous excerpts that are not part of the logical flow of the trial, or are not even relevant to the incidents at the IP, but which I feel are important to educate our community, reveal the stupidity and corruption of the actors, or entertain the readers.
After jury selection, then opening statements, there are six witnesses: GCB Agents Paul Stolberg, Anthony Vincent, and Philip Pedote; IP Security Supervisor Donnie Espensen; Plaintiff James Grosjean (thank you, thank you); and former GCB chief Ron Asher (the supposed "expert witness" on the relationship of the GCB and its licensees, and the law enforcement aspects of the case).
"Bob" refers to my attorney, Robert Nersesian, who is assisted in court by co-counsel Thea Sankiewicz.
"IP" when preceding a quote refers to Paul Thomas, the lawyer representing the Imperial Palace.
"Court" refers to statements made by the Honorable Judge Lee Gates.
Also present in the courtroom at all times is Mike Morrill, the risk manager for the Imperial Palace.
Letters after juror numbers refer to the games at which they gamble: VP=Video Poker, BJ=Blackjack, B=Bingo, H=Holdíem, G=Gambling at an unspecified game, N=None. Juror numbers in bold represent those ultimately selected for the jury.]
Itís Not Paranoia if ...
Las Vegas, February 28, 2001. Mike and I have already met with two lawyers to discuss a possible lawsuit regarding the Caesars Incident from April 2000. Now the lights are coming on as we enter the night in Las Vegas. Iím not in town to play, but itís what we do. Enough lawyersóitís time to take care of business on the blackjack tables.
No games at Casino Royale. Nothing at Harrahís. This ainít all glamour and showgirls and penthouse suites. Weíre about pounding the pavement. The Imperial Palace? Maybe weíve got something. Naturally, the dealer goes on break and then to a shoe game, so weíre going to have to wait 80 minutes before we even have a chance to check it out. After a nap in the sports book, we hit the floor again at about 11 p.m.
Mike and I split up and scout the blackjack pit from opposite sides. If nothing pans out, we might be headed to OíSheaís in a minute. But not just yet. Is that security guard looking at me? Sometimes an errant look is enough to tell you itís on. It looks like itís on, but how can it be? Iím not playing. The pit doesnít even know Iím here. Iíve never played much at the Imperial Palace. I donít exist. But anything can happen in Vegas.
The security guard is loitering in the middle of the heavily trafficked main aisle on the casino floor. He must be there for a reason. I move across the aisle to confirm that his gaze follows me. I meander over to the slot machines. Does he think I canít see his furtive glances? Itís on.
I could easily sprint out the door and make it to freedom, but Bob Loeb, my friend and attorney, has advised me that to do so escalates the situation both practically and legally. Why should I be considering running from anything? What is going on?
I have no choice but to walk out and hope the security guard leaves me alone. What are the odds of that? As I exit the main doors, I can hear the guard behind me. He orders me to stop, but why should I? I have nothing to say, and he has no legal authority over me. I keep walking. Iím in the driveway now. Freedom is so close. Then I hear the order over his radio: "Detain him!"
Five feet from the sidewalk. The goon finally gets in front of me. He puts his hands on my chest and starts yelling. I try to walk around him, saying, "You have no right to detain meóI wasnít even playing." "Yes, I do!" he counters. Good one.
This goon is about 6í3", outweighs me by about 75 pounds, carries a gun, and is violent. Though legal, resistance is futile. He twists my arm behind my back, then pushes me into the concrete wall. With my face pressed against the wall, he starts putting handcuffs on, and then I look down the driveway to see five more security guards running out. Their trophy subdued in cuffs, they triumphantly march me back into the casino and into the elevator. The bravado begins right away as they start touching my pockets and one of them says, "Smack his head into the wall." How can they get away with this?
I am taken to the Lineup Room and forced to lean with my head against the wall and legs spread behind me. For the next nine minutes, all of my possessions are taken out of my pockets and put on the table behind me. The guards are enjoying the festive atmosphere. The goon who had originally detained me says, "He broke my damn watch!" to which another guard replies, "Add on another charge!"
They finally let me sit, and the security supervisor, Donnie Espensen, gives me some vague line about how I might be someone theyíre looking for, and that theyíre checking on it. What is going on? Could I have just had the bad luck to be in the wrong place at the wrong time? I read a book once that says, "Thereís no luck in this business."
I sit and wait, and sit some more, and wait some more. No one tells me whatís going on. Espensen has already looked at my passport and knows who I am. I ask the guards to remove the handcuffs. They refuse. After about fifteen minutes in the Back Room, a couple of guys in leather jackets walk through, peruse my stuff on the table, tell Espensen theyíll see him tomorrow, say their goodbyes. A few minutes later Espensen says, "Well, they think youíre somebody, but apparently youíre not."
What? I ask, for the second time, to be released from handcuffs. Espensen refuses and retracts, saying, "We need to make sure youíre not the person weíre looking for." A few minutes later, he tells me that Iíll be released after he fills out a field interview card, including my passport number, home address and phone number, and Social Security number.
A few minutes before midnight, they finally release me. Espensen tells the security guards that they should escort me to the door, but that I am not 86íed [barred from the property], since this is apparently just a case of mistaken identity. What is going on?
In the days that follow, I canít make up my mind about what happened. What are the odds that of all the random people that could have been mistakenly detained, they grabbed me? They had to know. But then, why didnít they bar me? Perhaps they wanted to stick to their "mistaken-identity" story. But then, why detain me at all if they arenít willing to bar me? They donít need a justification to bar me; they can just do it.
Besides, they could stick to their mistaken-identity story and just say that "to be safe" they would bar me. That would do the trick. So did they know who I am, or was this an accident? As we would learn in the months ahead, those arenít the only two possibilities, and the truth is even darker and more shocking than any of us would have imagined.
Mike and I once asked Richard Wright, a criminal defense attorney, whether we could sue for the Caesars incident. Mike and I like to mimic his cynical, almost-mocking reply, which was, "Who ya gonna sue??" In the months that followed, only one answer emergedóeveryone.
Las Vegas, October 18, 2004. I am sitting alone in the back room at 528 S. 8th Avenue, the law offices of Nersesian & Sankiewicz. In the VCR is a surveillance tape from the Imperial Palace. On the table is the three-volume transcript of my deposition, taken about ten months earlier. Trial starts tomorrow. Our lawsuit against Caesars Palace, the Griffin Detective Agency, the Nevada Gaming Control Board, GCB Agent Charles Pointon, GCB Agent Roderick OíNeal, the Imperial Palace, and IP Security Supervisor Donnie Espensen has been bifurcated so that only the IP portion will be heard tomorrow. Iím relieved that we have to attack only one head of the hydra this time.
After three and a half years, itís odd that weíre actually going to trial tomorrow, but was it not inevitable? Does the IP expect me to bite at their token settlement offer of $10,000? Split with Mike and Bob, my end would be only $3000 or so, before expenses, which already exceed that amount. If I were interested in making $3000, I would just go over to the IP to play blackjack. Sure, if the IP offers a big number, say $50,000, Iíd probably take it, but the beauty of my position, and now Iím divulging our secret weapon, is that I donít care about money.
In high school I did Model U.N. and Model Congress and Mock Trial. In college I took a philosophy class called "Justice." I was an editor for a nonpartisan political magazine. I want the system to work. Las Vegas is an embarrassment to the United States, and not because of the gambling or the sex. I hope itís true that what happens in Vegas stays in Vegas. This cancer must not spread.
Las Vegas, October 19, 2004. District Court #8, the Honorable Judge Lee Gates presiding. Itís time for voir dire, the jury selection process. Mike and I had considered hiring a jury-selection consultant to help, but in the end decided that Bob, Thea, and I could exercise sufficient insight and wisdom. Thirty or so people are sitting in the jury pool. Eight are randomly selected to come forward. We will alternate with the IP in exercising up to four rejections of jury candidates. We might be able to reject a candidate "for cause," without having to use one of our four precious challenges. Some would argue that the case will be won or lost right here. Letís get it on.
Prospective Juror 227 [Dale K.]: "Let me just explain something to you. Being brought up in the Midwest, letís say, and the values that my parents instilled, coming out here to Nevada was like a complete turnaround. ... I sit here and I look at whatís going on with law enforcement, itís like Metro is like one big gang thing, you know. Itís like, always, me first and then... Back there was never like that. You never locked your doors or anything. Itís so different out here, and you know, itís hard ó itís hard to comprehend, to tell you the truth. I donít understand the concept that these people have out here that they canít respect some people first...
They canít respect people first. It seems like the first thing they do out here ó and I go by what they show on the news is ó about three years ago, there was a lady that Metro tried to detain, they ended up throwing her on the ground on hot pavement in the middle of the summer, and sheís all burned up, and sheís telling them sheís getting burned, and they donít care. I donít understand that. I donít understand the mentality of these people out here. Itís like strong arm first, and then ..."
Court: "Shoot and ask questions later?"
227: "Exactly. Thatís the way it is. That kind of mentality I was not used to. ... Iím going back to last year, ... Somebody evidently walked in [to a casino], security didnít like it, and they roughed them up. Here again, I donít understand that. They rough up first, and then they ask questions later."
IP: "Do you believe that the culture shock that you had ... would cause my client to say I donít want this guy as a juror?"
227: "Truthfully, I would ó I really have a preconceived notion about security in the casinos. ... Iím going back to what happened a year ago at Gold Coast, for example. Here again, itís on television, they showed surveillance videos, and I think it was an advantage gambler that that was the term that they used at the time on TV, and they ó as far as Iím concerned, instead of them just asking him to leave, they physically abused these people and took them in the back, handcuffed ó these people were handcuffed and everything, and that just ó thatís not right to me. ... they had these guys pinned right down cuffing them, and they were right down on the floor and they had their knees in their back. And Iím saying if this is just an advantage gambler, why are they doing this? This is not right."
For this guyís diatribe to be the first thing heard in court is a miracle for us, but, as Bob writes to me on his legal pad, "Heís gone!" [Dismissed by IP, #2]
Prospective Juror 169 [Timothy J.]: A former 16-year aeronautical engineer from California with a party rental business and a coffee service business. Now a 2.5-year Vegas resident and loan officer. He pleads financial hardship, because he works on commission and would not receive any salary for a four-day trial, and needs to support a wife and five children. His wife worked at MGM until recently. [Dismissed, along with five others for financial hardship.]
Prospective Juror 007VP [Scott F.]: A former Air Force pilot for twenty years, now a pilot for United Airlines, living in Vegas for 11 years, originally from Ohio. Previously served on a jury for a murder case, coincidentally heard by Judge Gates.
Bob: "Is anyone here particularly happy about [the Patriot Act]?"
007: "As an airline pilot ó some of that because of 9/11, because it helps protect us; so, there are aspects of that ó yeah, I would guess Iím in favor of it."
The guyís got a smirk plastered on his face, heís ex-military, he looks like he thinks this is a waste of his time to be here, and he likes "aspects" of the Patriot Act. I tell Bob that the guy has a bad attitude, and bad attitudes have got to go. [Dismissed by Bob, #3]
Prospective Juror 001 [Douglas P.]: A 3.5-year resident of Vegas and real estate agent. Formerly a 25-year electrical engineer in California. Was sued by his neighbor after he filed a complaint about a barking dog. Sued his former employer for wrongful termination.
Court: "Can you follow the Courtís instructions on the law?"
001: "Yes. I should say ó I donít know if it matters ó Iím a registered libertarian. ... this involves constitutional rights, and thatís a big thing with libertarians, and thatís why I mentioned it."
Bob: "Did you do programming and code as well?"
Why did this guy have to open his mouth about being a libertarian??!? Godspeed. [Dismissed by IP, #4]
Prospective Juror 002 [Lawrence A.]: A CPA born in Las Vegas, with a brother who does real estate and personal injury law.
Bob: "Does everyone here recognize that generally casinos do put out games where they have an advantage and the casino is playing with an advantage? ... Well, they all nodded their head yes except for Mr. A., who I think gave me the eye, only in the sense that sure, thatís what they do."
Educated, reasonable, with a touch of cynicism towards casinos ó nice knowing you, Lawrence. [Dismissed by IP, #6]
Prospective Juror 003HE [Richard F.]: A 2-year resident from Southern California, a retired paper manufacturer. On six previous juries, twice as foreman.
IP: "Do you have any opinions as to how casinos treat advantaged gamblers, any preconceived notions?"
003: "From what I understand, they prefer them not to play. If they find by their security or surveillance they think that someone is an advantage gambler, they ask them to leave."
IP: "Do you agree that a casino should have the right to decide who is allowed to play?"
Prospective Juror 004BJ [Nancy V.]: A 7-year resident from Chicago, now a nurse. Her daughter is a pit boss for Coast Casinos. Her brother-in-law has been in casino security for 20 years, and is now at the San Remo.
Court: "Did you ever talk to him about his work?"
004: "Frequently. ... You wouldnít believe some of the stuff. Itís unbelievable. Some of the stuff I wouldnít even want to mention."
Court: "Why, because itís lewd and lascivious or just ó"
004: "That too."
Court: "What about issues involved in this case, arresting people in hotel casinos?"
004: "What about it?"
Court: "Did he ever talk about arresting people who were playing cards?"
Court: "Advantage players and that sort of thing?"
004: "Right. ... I canít speak for all security people, but I feel like ó Iíve been in casinos all the time, and when you go in a casino and youíre not suspicious and donít do anything wrong ó Iíve never been bothered; Iíve never been spoken to by security. I think security does a good job, but there may be some that are bad, Iíll grant that."
Court: "Whatís an advantage player?"
004: "That would be someone who can count cards."
Bob: "When your brother-in-law talks to you, has he ever spouted off about how some other security officers just went off or were nuts and he just couldnít believe that they did stuff?"
004: "They have a pretty good crew there. He doesnít have any problems there."
Bob: "Has he ever brought it up at other places where they might have problems and you discussed that with him?"
004: "Not that I recall."
Gee, sheís been in casinos all the time, and sheís never been bothered. I wonder why that could be. [Dismissed by Bob, #1]
Prospective Juror 005N [Theresa M.]: A 25-year resident, an accountant for a masonry contractor. Brother is a corporate attorney in Washington, D.C. Iíve heard enough about this hotshot brother, which is making me think sheís got a big attitude. The jury box ainít big enough for her attitude. [Dismissed by Bob, #7]
Prospective Juror 006VP [Dolores D.]: A 13-year resident from Hawaii who works in casino credit at a Strip casino.
Bob: "You mention that you occasionally would gamble. ... Do you win?"
006: "Well, once in a while."
Bob: "Do you think that the [casino reality] shows are real or staged?"
A touch of cynicism we can handle.
Prospective Juror 008VP [Howard F.]: Born in Las Vegas, an equipment service technician at a fast food restaurant. Wife is a pit clerk at a Strip Casino.
Court: "Have you ever heard her discuss what they refer to as advantage gamblers?"
008: "No, sir."
Bob: "Do you watch American Casino or Casino?"
IP: "You heard the questions that I asked about security officers ..."
008: "I believe a security officer has a certain duty, and as long as heís not overstepping his duty or his job description, I have no problems with it."
Prospective Juror 009N [Marie M.]: A 3.5-year resident, from the New York/New Jersey area, director of food and beverage at a Strip casino, formerly worked at some "very high profile restaurants in New York City."
Court: "Do you have any preconceived ideas or notions about any of these issues that this case is about?"
008: "No. Iíd like to hear the facts."
Bob: "Do you watch any of those reality shows?"
008: "The Apprentice, Casino, and the other casino show."
Bob: "Why donít you gamble?"
008: "It just never really fascinated me. I have no interest."
Bob: "Itís not a moral question?"
008: "No, not at all."
Bob: "Are advantage gamblers discussed at those [daily security briefings]?"
008: "Truthfully, I never even heard of the term until I walked into this room today. ... Iím a food and beverage person first."
I like food and beverage.
Prospective Juror 010N [Marissa S.]: A 12-year resident from Colorado who teaches kindergarten, with a BA from Macalester College, and a teaching certificate and ESL endorsement.
Bob: "Why donít you gamble?"
010: "I work hard for my money, and I save it. It just doesnít appeal to me. The casinos ó itís dark and itís smoky and itís crowded. Itís just not a very pleasant experience for me."
Bob: "If I were to use the phrase Ďthe Nuremberg defense,í do you know what Iím talking about?"
Court: "Do you believe that people have to blindly follow orders given by police departments or police officers or that they can question them?"
010: "They can question them. ... [if a police officer] came up and asked me to do something, I personally would do it, but I donít ó imagine ever finding myself in a position where a police officer would do that."
A bit of a prude, perhaps. A woman who "[works hard]" for her money, as if we donít. A woman who canít imagine being in a situation involving police officers. Thatís dangerously close to the attitude that "the police donít just stop anybody; you must have been doing something." [Dismissed by Bob, #5]
Prospective Juror 012VP [Jeniece M.]: A 4-year resident from Colorado, who lived for four years in Vegas nine years earlier, works with her husband in an independent floor covering business.
Court: "Do you think people should be able to bring lawsuits if you feel theyíve been wronged?"
012: "I think thereís too many lawsuits going on for reasons that are, you know ó I mean, thereís a lot of frivolous lawsuits. ... Iím talking about like neighbors or something."
Bob: "If two people are working together, would you feel that ... both of them have to do everything for either of them to be responsible, or are they both responsible for what they do together?"
012 [without hesitation]: "Theyíre both responsible for what they do together."
[Accepted, but released by Judge during trial for illness.]
Prospective Juror 013N [Jodie B.]: Has lived in Vegas since age three, now a middle-school teacher at "a Title One school."
Court: "[What have you heard about advantage gamblers and where and from whom?]"
013: "I grew up next door to a professional poker player, one of my cousins is a card counter who is not allowed in casinos here, and same with my roommate."
Court: "So, your roommate is not allowed in casinos either?"
013: "He hasnít been banned specifically from casinos in Las Vegas, but he and his wife have come to an agreement that itís not a good idea for him to go in."
Court: "What kind of game does he play?"
Court: "You can be an advantage player in poker?"
013: "Poker and 21."
Bob: "[Why donít you gamble?]"
013: "I would rather not throw away my money, and I think gambling often takes advantage of the hopes of others."
Bob: "Would you agree that [your friends] are not problem gamblers because gambling is only a problem if you lose?"
013: "Thatís one way of putting it. I can see why a casino would not want them in their room, and I can also see why one might not want to play at a table with them because it certainly changes the odds."
Bob: "At 21, if you know?"
013: "Less so there."
Bob: "You donít have friends that cheat, though, do you?"
013: "It depends on your definition of cheat, especially when it comes to card counting and 21."
Bob: "Why? ... [If] somebody who you might remotely know might be cheating at something, what would they be doing?"
013: "It depends on whether theyíre dealing or playing, dealing from the bottom of the deck. ... If theyíre playing, possibly counting the odds and swaying figures in their direction, instead of the houseís direction, because I wonít lie to you, casinos arenít built on people winning."
Bob: "What would the player be doing that you would see as cheating?"
013: "Thereís an understanding with any gambling unit, itís a game of chance, and any time that somebody is doing something extraordinary in their mind, such as keeping track of figures, then thatís taking away the chance of the game."
Bob: "And you personally would view that as cheating?"
Bob: "One of the questions I had asked earlier of the panel as a whole dealt with whether or not you would recognize that generally when you walk in, itís not a 50/50 game with the casino, right?"
013: "Itís not."
Bob: "And the casino is playing with an advantage?"
Bob: "And you know what card counting is?"
Bob: "Just very straightforward, is card counting cheating?"
013: "In a casino?"
Bob: "And you believe that in your heart of hearts?"
Bob: "Your Honor, Iíd ask that she be excused for cause. She has an opinion that is directly and four-square contrary to the law."
IP: "Your Honor, may we approach and discuss this?"
Court: "No ... Let me tell you what, can you [Prospect 013] ... follow the law and put aside your own personal opinion?"
013: ĎI believe so."
Court: "All right."
Bob: "I would renew my cause objection."
Court: "Denied. She said she could follow the law. As long as she can follow the law and put aside her personal opinions."
013: "Yes, sir."
IP: "Thank you, Judge."
Bob: "Do you believe that a casino could take somebody into a back room for doing something that you call as cheating but is not cheating under the law?"
013: "It depends on the facts and how the person reacts at being asked to leave."
Bob: "What do you understand are the rights of the casino?"
013: "The casino is a private establishment with the right to refuse service to anyone and the right to ask someone to leave. And if in doing so, that someone either refuses or throws a fit that may either damage the casinoís reputation or possibly cause the disturbance to other patrons, then the casino may need to take further action."
Bob: "Youíre sort of studied on this. Who did you get that from?"
013: "Iím also a rights activist. You mentioned the Patriot Act earlier. Iím a human rights activist and was very vocal and active around the university and things like that."
IP: "Do you have any preconceived notions about the Imperial Palace?"
013: "Yeah. ... Most of them have to deal with the late owner of the Imperial Palace and various myths and unmyths about him and his personal affiliations."
IP: "Do you consider them myths or do you consider some of those things true?"
013: "I consider them true, especially looking at the architecture of the building."
IP: "Would that affect your ability to be fair to the Imperial Palace?"
013: "I donít think so."
IP: "Do you know how [your cousin was] getting the advantage?"
013: "He is a card counter and hard core 21. ... And the other one is a poker player, and he was used at best advantage for dealing."
IP: "Iím sorry?"
013: "The other one is a poker player. Heís at best advantage with dealing."
IP: "In dealing. Can you explain that a little bit more?"
013: "Amazing things with sleight of hand."
Court: "Thatís not advantage, thatís cheating."
013: "Yes, thatís why he doesnít play here."
This is the only prospect that I do not like and do not respect. She says sheís a rights activist, but she is apparently trying to escape her civic duty. By saying that card counting is cheating and that the late owner of the IP was a Nazi, she hopes to offend both sides, so that someone will bounce her. Let me get this straight: The cousin is a "hardcore" counter, but card counting is cheating? The roommate is a professional poker player, but has decided with his wife that itís not a good idea to go into the casinos, and he gets his edge in poker by cheating while heís dealing. This prospect is either confused, stupid, or disingenuous. [Dismissed by IP, #8]
Prospective Juror 014G [Mary M.]: A 13-year resident from Massachusetts, UNLV graduate, and third-grade teacher, formerly had a restaurant in New Hampshire.
Court: "Do [any of the previous questions] apply to you?"
014: "I did know a professional gambler."
Court: "When you say Ďprofessional gambler,í what does that mean to you?"
014: "He didnít have a job and thatís what he did, he gambled."
Court: "Do you know what kind of games he played?"
014: "I think he played a lot of video poker."
Court: "You can be a professional gambler with video poker?"
Bob: "As an acquaintance, did you have any preconceived notions about this [professional], whether he was a bad guy, good guy or anything like that?"
014: "No; he was a very nice guy."
Bob: "Do you have any preconceived notions that hotel security has any kind of special rights or authority in Nevada?"
014: "I believe they have more authority than a civilian and that they are protecting me as well as the other patrons."
Bob: "Do you distinguish between the casino protecting you and the casino protecting its own bottom line?"
014: "I wouldnít have a reason to think of it from that perspective. What, that they would be abusing my rights?"
Bob: "No, not necessarily. ... it seems to me you think that casino security, if theyíre undertaking actions, are doing it to protect other patrons. Would you recognize that casino security sometimes might take actions solely to protect their own income?"
014: "I hadnít thought of it. Possibly."
Bob: "And you teach your students what the Bill of Rights is and what civil rights are, right?"
Bob: "Do you emphasize how important those rights are?"
014: "Yes, I do."
IP: "Youíve been to the IP before?"
014: "To see shows. ... The shows are good."
Court: "The plaintiff may exercise their fourth and final peremptory challenge."
Bob: "If I waive, thereís no retakes, thatís waiving the fourth challenge, right?"
Bob: "Your Honor, we would like to thank and excuse [Prospective Juror 005]."
Weíre now out of challenges, and thereís an empty seat in the jury box. At this point, I leaned to Bob and whispered, "Weíre gambling now." Bob chuckled.
Prospective Juror 015 [Regina S.]: A 15-year resident from Colorado, a claims manager for work comp, formerly at MGM/Mirage. A risk manager for ten years.
015: "Iíve worked really closely with the vice-president of security at the hotel, the MGM, actually, at all of the properties."
Court: "Because of your close association in the past with folks who work in security, would that affect your ability to be fair in this case?"
015: "I honestly believe it would, yes."
Court: "All right. Youíre excused."
Whew, weíre out of bullets, but our enemy committed suicide. [Dismissed by Court.]
Prospective Juror 016 [Galan A.]: A 15-year resident from California, a physical therapy student, with final exams over the next two weeks. [Dismissed by Court.]
Now Prospective 013 pipes in: "For secondary schools in Clark County, the quarter ends on Thursday of next week, so right now my kids are in the last crunch for getting everything in the grade book by Friday."
Court: "Canít you call in for a sub?"
013: "Yeah, I can, but that doesnít mean weíll get one."
Court: "You have to wait. Let me see how we do."
Prospective Juror 017N [Cyndy A.]: A 12-year resident from "all over," now working doing third-party liability work for a medical insurance company. Out of challenges, we lucked out when the 10-year casino risk manager, Prospect 015, admitted bias and got herself dismissed by the Court. Now, here comes the mother of all nightmares.
Court: "Have you ever worked in the hotel casino?"
Court: "Which one?"
017: "Quite a few."
Court: "Doing what?"
This is the worst twist that I could have imagined that after running out of challenges, our jury is filled with a casino risk manager [that bullet dodged] and a casino security employee!
Court: "Because you worked in security, would that affect your ability to be fair in this case?"
Court: "If security was shown to be lacking or have done something wrong, would you be able to find against them?"
A ray of hope? She said "definitely," instead of a simple "yes." Weíre grasping at straws.
Court: "What did you do with [card counters]?"
017: "I never actually dealt with any of those. Mostly, we dealt with drunks. ... I worked at Southern Nevada Womenís Corrections Facility as a corrections officer for a little over a year, and then I tried out security in the casinos, but I didnít stay with it."
Bob: "Which casinos did you try that out at?"
017: "Sante Fe, Monte Carlo, Nevada Palace, I believe."
Bob: "So, you held three security jobs."
017: "Closer to probably five or six, but I donít remember the other ones. They were very short-term."
Bob: "While you were there, did you find that security at the casinos recognized and respected the rights of the patrons?"
Bob: "Do you know what a hole carder is?"
Bob: "Did the casinos regularly tell you that your job was to protect the casinos?"
Bob: "Did they highlight protecting casinos or protecting patrons?"
IP: "You were asked if casinos respected rights of patrons or something along those lines. Did you say that they did?"
017: "Theyíre more for the casino."
At this point, we are possibly between a rock and a hard place, or possibly between a pillow and a soft place. We have Prospect 013, who says that card counting is cheating, but who claims to be a rights activist who believes that the former IP owner was a Nazi. Then we have Prospect 017, who worked in casino security, but who seems to be disgruntled and [properly] cynical about that career ó a potential jackpot for us . We have no remaining challenges, but the IP has one. Who will they reject, if anyone? IP: "Your Honor, we would thank and excuse [Prospective Juror 013]."
Prospective Juror 018B [Dolores C.]: An 11-year resident from New York, retired, whose husband works for Mandalay Bay in the sports book. She asks to be excused because she cares for her elderly mother in New York. [Dismissed by the Court.]
Prospective Juror 020N [Sandra A.]: A 28-year resident from Ohio, a blackjack dealer at an off-Strip casino, married to a dice dealer.
Court: "Whatís an advantage player?"
020: "Theyíre card counters or they ó anybody with a big bank roll can eventually take advantage, but I just feel like theyíre card counters."
Court: "Anybody with a big bank roll can take advantage?"
020: "Card counters donít necessarily win, but if you have enough bankroll, eventually you will. Iíve been dealing 27 years."
Bob: "Do you recognize hole carding as not an illegal activity?"
020: "No, I donít believe itís illegal."
Bob: "If you were to find out sitting here that Mr. Grosjean is the best hole carder in the world, would you hold that against him?"
020: "You mean reading the hole card?"
Bob: "Yeah, getting the hole card from the dealer?"
020: "Thatís not good. Would I hold that against him?"
Bob: "Itís not cheating though, right?"
020: "Itís taking advantage, yes, of a system. The casinos are for fun. Theyíre not for, like, trying to beat. People like to beat the casino. I donít think you can beat them."
Bob: "If you find out that thatís where Mr. Grosjean ó you donít think you can beat them. So, if youíre beating them, youíre doing something wrong? Would that be true?"
Bob: "Iím confused."
020: "Iím confused now. Letís try that one again."
Bob: "Letís go back to the question that I asked. You find out that Mr. Grosjean is the best hole carder in the world, are you going to hold that against him?"
Now the alternates:
Prospective Juror 021N [Carlos J.]: A 9-year resident from California and Mexico, now working for Republic Services. [Dismissed by the Court for financial hardship.]
Prospective Juror 023VP [Annette E.]: A 4-year resident from New York and California, now working at a credit union.
Bob: "Do you feel that security at a casino can handcuff people without legal cause?"
023: "Usually, I feel that they must have seen you doing something or youíve done something for them to come and approach you. Thereís hundreds of people in there, and they donít just pick on one person."
Bob: "You would agree that itís not an excuse to point to somebody else and say it was his idea when the bank is robbed by both of you?"
023: "Youíre both responsible." [Dismissed by Court for cause, because a member of her Board of Directors also works for the IP.]
Prospective Juror 024 [Diana C.]: A 12-year resident from California.
Court: "Are you a legal resident?"
024: "No, I donít have any residency yet, but itís in the process." [Dismissed by the Court for vague residency status.]
Prospective Juror 027VP&BJ [James B.]: A 4.5-year resident from Michigan, retired from a marketing career in the banking and beer industries, retired from 21 years in the Army, both active duty and reserves.
Bob: "Do you feel that security at a casino can handcuff people without legal cause?"
027: "I believe they could, but I donít think they should."
Prospective Juror 028N [Michelle G.]: A 6-year resident from Salt Lake City, now a homemaker, married to a Navy man.
Bob: "Does your reason for not gambling have anything to do with moral reasons?"
IP: "Do you know any advantage or professional gamblers?"
Bob: "Your Honor, we waive our peremptory and accept the jury."
IP: "We will also, your Honor."
Court: "Swear in the jury."
And so it was done. I looked at our jury ó six women, two men. Five of them gamble, mostly video poker. After using our last peremptory challenge, we see a casino risk manager, an ex-security guard, and a career dealer. The latter two make the jury, but I think itíll be okay. If weíre going to gamble with the Nevada legal system, Iíd rather face the possible stupidity of a jury, than the possible corruption of a judge. But you know, this jury looks reasonable; I daresay intelligent. After three and a half years, the world will find out what happened at the Imperial Palace on February 28, 2001.
Stripped of the chit-chat, our opening statement outlines the five violations of my Constitutional rights:
1. The IP grabs and detains me with no legal reason.
2. The IP illegally searches me under the guise of doing a pat-down weapons search, for nine minutes!
3. After being instructed that there is no legal basis to hold me, the IP continues to hold me. The IP then concocts a ruse to allow GCB agents to perform an illegal search.
4. The IP then lies and extorts additional information through a "field interview card."
5. The IP then continues to hold me in handcuffs for a few minutes to allow GCB agents time to escape.
In response, the IP lawyer opens with: "Ladies and gentlemen, this is a dispute between Mr. Grosjean and the Nevada Gaming Control Board. The Imperial Palace was involved because they decided to take their dispute to the Imperial Palace. ... and if [GCB agents] come in and say detain somebody, we have to do it." Ah, yes, it really is the Nuremberg defense.
Now make me the bad guy: "[Mr. Grosjean] wrote a book where he admits in this book he is promoting deceiving casinos, deceiving dealers, deceiving pit bosses, deceiving security officers. He talks about going into a casino and getting the dealerís trust, talking about their personal lives maybe, and then being able to look at their cards. He talks about using aliases, he talks about concealing winnings, ..." Excuse me, is now the time when we remind the jury that I wasnít even playing at the IP?
Perhaps we should wait for another gem from the IP lawyer: "The Gaming Control Board not only thinks itís cheating, the Gaming Control Board thinks itís a felony looking at the dealerís card." So, even though we all know that hole-carding is legal, because the statutes and the Nevada Supreme Court say so, the IP lawyer is now using the GCBís ignorance and malice to suggest to the jury that Iím a felon? Did someone say "sleazy lawyer"? But heís got more: "[On February 28, Mr. Grosjean and Mr. Russo went] to an attorneyís office because you will see that this is not the first time that Mr. Grosjean has had trouble with the way he plays." (!) I went to an attorneyís office because I was trying to find someone to sue Caesars Palace and the GCB for arresting me on bogus cheating charges. And now, because GCB has a problem with my winning ways, and I seek an attorney, Mr. Sleazy Lawyer says that "this is not the first time that Mr. Grosjean has had trouble"?? What a beautiful circle they have created. And next time GCB arrests me, theyíll probably tell a jury, "This is the second time Mr. Grosjean has been arrested for his play." Keep going, Mr. SL. "Following the attorneyís office, [Mr. Grosjean] goes out to Harrahís or goes out to the Strip, and he is looking for a hole card game with Mr. Russo. They openly admit that." Egads! We just openly admitted to doing a completely legal thing. Yeah, yeah, heís just doing his job defending his client. His speech grows tiresome; letís put witnesses on the stand.
But wait, wait, thereís one more. "[GCB agents] knew and, I believe, watched most of the detention, and even gave some orders on additional searches or additional looking at the items on the table. If there was a violation of the rights, they wouldnít have done that." Ahh, the logic! There could not have been a violation of my rights, because GCB wouldnít have allowed that. Ahh, IP and GCB are incapable of violating someoneís rights. Thereís the argument. Good one. That one is better than the Nuremberg defense. Let me write that one down. Letís get to the witnesses.
No, no, I canít stop. "It will be undisputed that not ó had the plaintiff not behaved as he did, in other words, trying to get out of here, he would not have been handcuffed. He was handcuffed for the reasons I gave to you earlier. No one is going to dispute that. [Yes, we are.]" We almost forgot about that line of defense. A tried-and-true classic. Textbook! Chapter 2: Blame the Victim ó If She Had Said Yes, She Wouldnít Have Been Raped.
To reiterate, letís get back to their bread-and-butter: "When we asked Mr. Grosjean, ĎWhat was the Imperial Palace supposed to do?í The answer is, ĎThey should have said no.í No one is going to say that the Imperial Palace has that right. [Yes, we are.] In fact, the evidence will be to the contrary. [No, it wonít.] They canít say no when [GCB tells] us to stop them, to detain them. [Yes, they can.]" I need Nancy Reagan to come in here and spell this out for them, but instead, letís start with GCB Agent Stolberg.
Witness: GCB Agent Paul Stolberg
My Innocuous Activity:
Bob: Now, in the entire time ó let me do the whole day. Did you ever see Mr. Grosjean do anything suspicious?
Stolberg: No, I did not.
Bob: Did you ever see Mr. Grosjean do anything that would give you probable cause to detain him?
Stolberg: No, I did not.
Bob: At any time at Harrahís, did he do anything that would give you suspicion that Mr. Grosjean was doing anything illegal?
Bob: When you were at Harrahís watching Mr. Grosjean, where were you watching him from?
Staking Out Hole-Carders:
Bob: Mr. Russo was being followed?
Stolberg: No. The subject of the surveillance was being followed originally.
Bob: And that was not Mr. Russo or Mr. Grosjean?
Stolberg: Thatís correct.
Bob: So, Mr. Grosjean found himself in this gentlemanís car?
Stolberg: Thatís correct.
Bob: And then they went to this gentlemanís house?
Stolberg: Thatís correct.
Bob: If I remember from your deposition, you donít want to tell me who the gentleman is?
Stolberg: Thatís correct.
IP: You mentioned that there are two Gaming agents involved in your part of the investigation?
Stolberg: The surveillance?
IP: And there were two Metro agents?
Stolberg: That this ó just the portion when weíre at Harrahís?
Stolberg: Thatís correct.
IP: And prior to [the call to the IP], though, Mr. Grosjean had left the target of the cheating investigation with Mr. Russo, correct?
Stolberg: Thatís correct.
IP: And he was followed?
Stolberg: Thatís correct.
Bob: Agent Stolberg, in my prior questions, I did not mean to insinuate that Mr. Grosjean was doing any of these things in terms of hole carding and in your presence.
Stolberg: Thatís correct.
Bob: Iím trying to establish why you were following him. Why were you following him?
Stolberg: I was assigned, as part of the surveillance team, to follow the two individuals. When Mr. Russo and Grosjean left the subjectís house, we were assigned to follow them.
Bob: And the two people in terms of at that house who were the target of the investigation, they were hole carders, correct?
Stolberg: It wasnít my investigation.
Stolberg: So, I donít know.
Court: So, you donít know?
Stolberg: Not for sure.
Court: Right. Okay.
So we come to learn that on the evening of February 28, I was being followed by two GCB agents and two Metro officers, because the Gaming Control Board had someoneís house under surveillance, and by visiting there, I came under surveillance. Iím not even sure whose house it was, but we think that it might have been RC. From other testimony, we infer that the house was under surveillance because the players who live there see the dealerís hole card and signal this information to partners at the same table. Thatís right ó theyíre wasting massive resources investigating a legal activity. I guess GCB agents donít have anything better to do.
Stolbergís Instructions to the IP and the IPís Ability to Say "No":
Bob: So, youíre up in surveillance [at Harrahís], Mr. Russo is gone, Mr. Grosjean is gone, what did you do?
Stolberg: At that point, I called the Imperial Palace surveillance room and asked them to keep an eye out to see if the two subjects that had just left, Mr. Russo and Mr. Grosjean, came into the Imperial Palace.
Bob: Did you request that surveillance at Imperial Palace do anything if they see Mr. Russo and Mr. Grosjean?
Stolberg: Yes, I did.
Bob: What did you request?
Stolberg: I asked them to contact me on my cell phone. I gave them my cell phone number ó my name and my cell phone number.
Bob: Did you tell them to pick them up?
Stolberg: No, I did not.
Bob: Did you tell them to stop them?
Stolberg: No, I did not.
Bob: Did you tell them to question them?
Stolberg: No, I did not.
Bob: Did you tell them to detain them?
Stolberg: No, I did not.
Bob: Did you allude in any way they should do any of those things?
Stolberg: Not ó no, I didnít, to my knowledge.
Bob: What would you personally need to cause the arrest of someone?
Stolberg: Are you asking me if I can do it under power of a warrant?
Bob: Under a warrant or probable cause ó are those the two ways? Any other ways?
Stolberg: Not that Iím aware of.
Bob: Thatís it, a warrant or probable cause?
Bob: If youíre ordering somebody to arrest someone for you, is the same thing needed?
Stolberg: Again, I donít know that I could order someone to arrest someone for me.
Bob: They can say no, canít they?
Bob: What did you tell [GCB] Senior Agent Vincent when he called [you from the IP]?
Stolberg: He asked me a question. He asked me whether I had asked the Imperial Palace to detain anyone, and my answer was no, I had not.
Bob: Anything else said?
Stolberg: I simply, you know, reiterated that I had no grounds to hold Mr. Grosjean, and unless the Imperial Palace or something had happened outside of my presence that I donít know about, I had no grounds to detain him. That was the gist of our conversation.
Bob: From what you told the IP, there was nothing in there from which they should infer that you wanted Mr. Grosjean detained or that he was a criminal, right?
Stolberg: That was not my intent. What they inferred, I canít tell you.
Bob: But you werenít ó it wasnít your intent that they infer it, right?
Stolberg: My intent was that if they saw Mr. Grosjean and Mr. Russo, that they call me on the telephone. That was my only intent. What happened beyond that, I canít say.
IP: And you gave [the IP] your cell phone number and said, "Call me back if you see them"?
IP: You didnít say why you were looking for them?
Stolberg: Thatís correct.
IP: You didnít tell the Imperial Palace not to detain them?
Stolberg: Thatís correct.
The strategy is brilliant! "You didnít tell the Imperial Palace not to detain them [emphasis mine]?" Iím lucky the IP didnít shoot me.
Why the IP Couldnít Call GCB Agent Stolberg:
IP: Now, after the phone call [to the IP], you went and joined the others and you made a search around the areas and met back up in front of Harrahís, correct?
IP: And then you terminated the surveillance?
IP: And you went back to your office, got in your car and went home?
Stolberg: Thatís correct.
IP: You turned off your cell phone by the time you got home?
Stolberg: Thatís correct.
IP: Agent Stolberg, now, you canít order somebody to arrest someone for you, but you can order somebody, a security officer, to detain somebody for you, correct?
Stolberg: I can ask them to. I canít order them to.
IP: Was it your understanding that [Grosjean] was out on bail from the Caesarsí incident at the time of the Imperial Palace incident?
Stolberg: Following ó after, when I found out about the prior arrest ó actually, I wasnít of any opinion. I didnít know why he was out.
IP: If Vincent and Pedote ordered the Imperial Palace to not let Grosjean know that Gaming was there, that wouldnít surprise you, correct?
Stolberg: No, it wouldnít, [because] the surveillance we were conducting ó and Iím sure I told Agent Vincent or Senior Agent Vincent that we were doing a surveillance ó is supposedly a covert operation. We donít necessarily want to tell people outside the investigation what weíre doing.
Oooohhh, I have truly reached a pinnacle in my nefarious career ó I am the subject of "covert ops."
Stolbergís (Wrong) Belief on the Legal Status of Hole-carding
IP: In your opinion, on February 28, 2001, I should say, was hole carding illegal, in your opinion?
Court: What exactly is hole carding?
Stolberg: It is where a player sees the hole card of the dealer at a blackjack table, and in my interpretation, it becomes illegal when that player then passes that information to other people at the table to take advantage of that knowledge in placing their bets, how they play their hands.
Court: So, itís not illegal for a person to look at a hole card and then ó
Stolberg: Take advantage ó
Court: ó for himself?
Stolberg: Take advantage of the dealer.
Court: Yeah, right. I mean, if he has a king, so the likelihood of him getting busted is greater than if he had a three or a deuce, and he played accordingly, that wouldnít be illegal, would it, since heís using his own intelligence and whatever?
Stolberg: I wouldnít think it would be prosecuted. Whether it would be illegal, youíll have to ask an attorney.
IP: [From page 19 of your deposition] Question, "So, somebody who goes out looking for a sloppy dealer, in your opinion, is a cheater whether or not they plan on signaling?" Answer, "By the statute, yes." Is that still your testimony?
Stolberg: I would have to read the statute again, but I believe it probably is.
Stolbergís (Lack of) Legal Research Informing his (Wrong) Belief
Court: Where do you get these interpretations from? Thatís what Iím trying to find out.
Stolberg: I wouldnít arrest somebody at a table if they were playing and they were by themselves and the dealer was making mistakes. Thatís generally taken care of by the pit boss. If he sees the dealer doing something wrong, they will step up and have them stop.
Court: But where did you get your interpretation from, Iím just curious, as to what is illegal and not illegal?
Stolberg: The interpretation that I get is just from discussions with other agents and other people at the Board as far as the conspiracy part of it.
Court: I see. So, thereís no particular law that you reference that defines it?
Stolberg: Well, the law that we use would be fraudulent acts, which is taking advantage of foreknowledge of the outcome of the game.
Court: All right. Go on.
Bob: And you have never read a single decision by the Supreme Court on gaming, have you?
Stolberg: I certainly have.
Bob: Have you read Lyons v. State?
Bob: Have you read Skipper v. State?
Bob: Do you realize that both those cases ó now, at your deposition, both of those cases were brought up, and it was represented to you that those cases affirmatively say that hole carding is not illegal. Do you recall that?
Stolberg: I recall you saying it, and I recall the other attorneys objecting, saying that it wasnít because it hadnít been cited.
Bob: No, sir. That was Einbinder v. State, the case that said that signaling was not illegal as well. Do you recall that?
Stolberg: I donít recall the case names. I recall the back and forth between the attorneys.
Bob: Youíve never gone forward and asked anybody or done any legal research to find out if itís cheating or not, and yet, you stand here today and tell the jury that you believe itís cheating, right?
Stolberg: Thatís correct.
False Accusations are Still Damaging:
Bob: ... if Mr. Grosjean not only was not convicted but was not prosecuted and the prosecutor expressly entered a ruling of no prosecution ó [weíre] not going after this guy because thereís nothing here ó if that were the case, that would never make it to your records and he still sits there as an arrested person, right?
Stolberg: He would be in our files as having been arrested.
Bob: How does he clear that arrest if nothing ever happened from it?
Stolberg: He doesnít. Itís public record that he was arrested.
Witness: GCB Agent Anthony Vincent
My Innocuous Activity:
Bob: When you arrived at the IP, had you ever heard of Mr. Grosjean before?
Vincent: I donít recall that I had. I donít believe so.
Bob: Everything you knew about [Grosjean] that night until you talked to Agent Stolberg [later in the evening] you heard from the IP, right?
Vincent: Correct, yes.
Bob: What did you understand you were looking at Mr. Grosjean for?
Vincent: I didnít. They just said come look at this. Again, I had no clue. They wanted me to look at a person on videotape, on live surveillance, and I said yes, Iíd look at that.
Vincentís Instructions to the IP:
Bob: Did you tell anybody to detain him?
Vincent: No, I did not.
Bob: Did [GCB Agent Pedote] tell anybody to detain Mr. Grosjean?
Bob: Did the idea of coming or detaining Mr. Grosjean come up in the surveillance room while you were watching him?
Vincent: ... it did come up what should we do, what do you want us ó something to that effect, and I canít recall, but my words to him was, "Do whatever Agent Stolberg told you to do," because I knew nothing about this individual.
The Ruse to Search Me After Admitting Lack of Probable Cause:
Bob: ... This is purportedly [IP Security Supervisor] Espensen speaking per the exhibit: "If [Vincent] wanted, I told [him] I would go over and talk to Grosjean, and after a minute or so, [Vincent] could walk through, stop at the end of the table, act like we are friends and he is getting off work and saying he would see me tomorrow or something while at the same time take a look at the money and chips, then leave. [Vincent] agreed to this." Is that your recollection?
Vincent: I donít remember the story, but as it turns out, yes.
Bob: And all of this could occur without Mr. Grosjean knowing that Gaming was involved, right?
Bob: In fact, you had gotten a hold of [GCB Agent] Stolberg before you walked through the door [to the detention room], right? ... What did Mr. Stolberg say?
Vincent: To the best of my recollection, it was no, I did not advise them to detain this person. Let him go, and thatís it.
Bob: [GCB Agent] Stolberg, I believe, testified yesterday that he stated he had no probable cause to hold [Grosjean] and that [Grosjean] should be let go. Would that be in accord with what you recall of the conversation?
Imperial Palaceís Lies and Cover-Up:
Bob: Were you holding Mr. Grosjean?
Bob: Who was?
Vincent: Imperial Palace.
Bob: ... this is part of a stipulated exhibit, and itís a statement of a Daniel Bauer that came from the Imperial Palace in this case: "[IP Security Supervisor Espensen] described to Vincent the money and gaming chips that he found on Grosjeanís person during the weapons search. Vincent stated that he would like to get a quick look at the money and chips. [Espensen and Vincent] decided that Espensen would go and talk to Grosjean, and Vincent would then walk through and take a quick look at the money and chips. [Espensen] then departed the surveillance room. Vincent then stated that this would not violate Grosjeanís Fourth Amendment rights." Did you say that?
Vincent: I donít recall saying that.
Bob: Thatís not something you would say, is it?
Bob: Okay. So, if this appears in an IP security report, from your perspective, this would be made up, right?
Vincent: I wouldnít say "made up," but, you know, maybe ó I donít know. I could only be guessing.
Bob: But thatís not something that you would say?
IPís Brilliant Strategy Redux:
IP: Before Agent Stolberg called, you never told the Imperial Palace donít search Mr. Grosjean, correct?
Witness: IP Security Supervisor Donnie Espensen
My Innocuous Activity:
Bob: [At this time up to that point], what had you or anybody at Imperial Palace seen that indicated that Mr. Grosjean was doing anything illegal?
Espensen: To my knowledge, the gentleman hadnít done anything illegal.
Bob: And up until that point, what had you or anybody at Imperial Palace seen that indicated that Mr. Grosjean was doing anything suspicious?
Espensen: He hadnít done anything that we knew of at that time.
Eliminating the "Rogue-Employee" Defense:
Bob: ... that entire evening [of February 28], were all the actions with which you are familiar in full accord with the policies and procedures of the Imperial Palace so far as the security department is concerned?
Bob: Is it true that you were never reprimanded for anything that you did that evening?
Espensen: Thatís correct.
Bob: [Your full] report was circulated to all of those persons? [The general manager, the risk manager, the director of security, the assistant director of security, the assistant director, and the assistant to the assistant director]
The Nuremberg Defense:
Bob: Now, as I understand it, as youíre here today, I understand that you are saying that
you were working under the authority of the Gaming Control Board, and you didnít have discretion and you were doing what they told you to do?
Espensen: Well, we stopped him by their call. If it wasnít for them telling us to stop him, he would have never been upstairs in the first place. ... They told us that they want it done, and we have our procedures once we do it what we have to do.
Bob: Let me just ask, do you ever, at any place on this video [IP-provided surveillance video showing Grosjeanís initial exit from casino], see Mr. Grosjean run?
Bob: Did he appear to be resisting at all?
Espensen: Not at that point.
Bob: And now heís in an elevator with six security officers, right?
Espensen: Yes, sir.
Bob: And he is handcuffed?
Espensen: Yes, sir.
Bob: What was he detained for?
Espensen: He was detained because Gaming agents requested us to stop him and detain him.
Bob: The directive to hold Mr. Grosjean came from you, right?
Espensen: Thatís correct.
Bob: Gaming wanted him stopped?
Espensen: Yes, sir.
Bob: Meaning the [GCB agents] who were on the scene, Pedote and Vincent?
Espensen: Yes, sir.
Bob: At that time, all the information that Pedote and Vincent, the Gaming agents had about Mr. Grosjean came from you or Imperial Palace personnel?
Espensen: Thatís correct.
IP: What happens when [Grosjean] starts to leave?
Espensen: When Mr. Grosjean starts leaving towards the front door, Agent Vincent is on the phone. I donít remember if heís actually talking to anybody at the time, but heís got the phone to his ear, and he looks at me and says, "Stop him. Donít let him leave. Detain him."
IP: How were you feeling at the time that you were doing this with Mr. Grosjean, this entire affair?
Espensen: Very uncomfortable.
Espensen: Because I didnít really agree with what was going down.
IP: Did you think you were doing anything wrong?
Espensen: No, I didnít think I was doing anything wrong.
IP: [Was Imperial Palace] doing anything wrong?
IP: Who did you think was doing something wrong?
IP: Agent Vincent testified this morning that he didnít tell you to detain Mr. Grosjean. Do you agree with that testimony?
Espensen: No, I do not.
IP: Is there any way you could have misunderstood him, that maybe he said something that you thought led to your decision to detain?
IP: You didnít 86 [Grosjean]?
Espensen: No, sir.
IP: Why not?
Espensen: Heís done nothing wrong at the Imperial Palace. We had no reason to 86 him.
The Illegality of the (Alleged) Order:
Bob: Now, you heard [security guard] Gentry say, quote, "[Grosjean] told me I have no right to stop him." Just out of curiosity in your opinion, [in what way] was Mr. Grosjean wrong? ... Why did you guys have a right to stop him?
Espensen: Well, Gaming agents told us to stop him and to detain him, not to let him leave.
Bob: Would you agree that if the Gaming agents had said nothing to you about stopping him, that there would have been no right to stop him?
Bob: The Gaming agents who had talked to you at that time got all their information from the IP. Weíve confirmed that, right?
Bob: And that information was another agent had asked to be called, correct?
Bob: Did you stop ó youíre the guy who ordered that he be stopped, right?
Espensen: Iím the one that put it out over the radio.
Bob: Did you ever stop to think to say no?
Espensen: No, sir.
Espensenís Training in Search and Seizure:
Bob: You have some police training, donít you?
Espensen: I have 120 hours special police training.
Bob: And in that special police training, did you learn the parameters of search and seizure?
Espensen: No, sir.
Bob: Not at all?
Espensen: No, sir.
Bob: Do you know ó have you heard of the case Terry vs. Ohio?
Espensen: No, sir.
Justification for the "Pat-Down" Search:
Bob: Now, articulate [all] circumstances at the time of that search that gave you reason to believe that Mr. Grosjean may have been armed at the time you commenced the pat-down search.
Espensen: There was nothing that actually gave me any reason to believe that he was armed.
Bob: In fact, at your deposition, you said, "I had no reason to believe he was armed at the time of the pat-down search," correct?
Espensen: Thatís correct.
Bob: Whatís the purpose of the pat-down search?
Espensen: Because I canít see that he is or that he ainít, and for our protection and for the suspectís protection as well, we want to make sure they donít have weapons on their person that they can use to hurt themselves or one of our people while we have them there.
Bob: Where do you get that authority?
Espensen: I donít know that itís an authority, itís just our direction.
Bob: Itís part of the policy and procedure?
Bob: Everybody gets searched?
Espensen: Well, at that particular time. I donít know what the policies are now because Iím no longer a supervisor and I havenít kept up on the policies. ... At that particular time when we bring persons up, we are to search that person, make sure they donít have any weapons for their protection and ours, and if so, remove them from their reach.
Espensenís Justification for Opening my Passport:
Bob: Did Mr. Grosjean have any weapons?
Espensen: I didnít find any weapons on Mr. Grosjean.
Bob: You found a passport, right?
Espensen: I found a passport, yes.
Bob: Did you open the passport?
Bob: Were you away from Mr. Grosjean when you opened the passport, more than three feet away from him?
Espensen: Probably three or four feet.
Bob: Did you think there was a weapon in the passport?
Espensen: I donít know if there is or there ainít a weapon in the passport.
Bob: Why are you opening the passport?
Espensen: A passport can contain a weapon the same as anything else.
Bob: Four feet away from a guy who has got his head against the wall and is wearing handcuffs, right?
Bob: For his protection and his safety, you open the passport; is that your testimony?
Espensen: I open the passport and anything else that may contain a weapon, yes.
IP: Can a razor blade be hidden in a wad of cash?
Espensen: A razor blade can be hidden in anything.
The Professionalism of the IP Security:
Bob: As the supervisor, did you carry a gun?
Espensen: Yes, I did.
Bob: So, you were armed?
Bob: Anybody else in your department armed at that time?
Espensen: As far as I know, the entire security department is armed.
Bob: So, [security guard] Gentry had a gun?
Espensen: Yes, sir.
Bob: [As we approach 23:16, was] that Officer Gentry saying, "He broke my frigginí watch"?
Espensen: ... It sounds like thatís what he said.
Bob: Did you hear what the other [security guard] said? ... "Add another charge" is what he said, didnít he?
Espensen: I think, but Iím not sure.
Bob: What was Mr. Grosjean being charged with?
Espensen: Nothing that I knew of.
Security Guard Gentryís Alleged Injury:
Bob: Letís go back and look at [security guard] Gentry for a few minutes. He seems fine, doesnít he?
Espensen: To look at him on the tape, he seems fine.
Bob: We havenít heard anything about him complaining about being injured or anything, have we?
Espensen: Not yet.
Bob: When you were in there, did you hear anything about that?
Bob: Do you know how it was decided that he would claim that he was injured and go off to the medical center for a wrist injury?
Bob: Do you know if Officer Gentry injured his wrist?
Espensen: I remember we did the report and he went to the clinic, but I donít remember.
Keeping the Cuffs On:
Bob: Let me ask you something. [Grosjean] is sitting there, far end of the table; he hadnít done anything suspicious; he hadnít done anything illegal; you have him in your room; you finished your pat-down search; everything that the man had in his pockets is sitting on the table. Why is he in handcuffs?
Espensen: Because at the time that he was placed in the handcuffs, he shoved an officer, I understand, and the officer cuffed him because he became physical. Once theyíre placed in handcuffs, we donít release them from the handcuffs until the police or Gaming or whoever the legal authority is tells us to do so.
I shoved an "officer"? The same one who claimed his wrist was injured, even though he is shown to be perfectly healthy on the subsequent video? The way it works is: theyíll grab a player with no legal basis whatsoever; lack of knowledge or mere miscommunication is enough to handcuff, search, and detain a player, but releasing a person requires explicit legal authority. Letís give Espensen another chance on this one:
Bob: [Referring to detention room video] Mr. Grosjean asked your officers to take his handcuffs off, right? ... He was refused, right?
Bob: At that point, [Grosjean has] been in that room for 20 minutes, and heís been fully cooperative, right?
Bob: Heís been conversant with you while you sat down and answered your questions forthright, correct?
Bob: Why canít you take the handcuffs off?
Espensen: Itís customary that we donít take cuffs off once theyíre placed in custody until we release them to the police or back to the street.
Aahh, Espensen canít take the handcuffs off because itís "customary" that they donít.
The Real Reason the Cuffs Stay On:
Bob: Did I hear you say in front of Mr. Grosjean, and I quote, "They think youíre somebody but apparently youíre not"?
Bob: At that point, youíve got a determination from [GCB agents] Pedote and Vincent that they have no reason to hold Mr. Grosjean, right?
Espensen: I think I do at that time.
Bob: Wouldnít that be sort of the same thing as "let him go"?
Espensen: It probably was, but as I said, we donít let them go with the handcuffs until we really release him out of our custody, back to the street.
Bob: Why arenít you doing that right there?
Espensen: Because weíre not done yet.
Bob: Why arenít you done yet? The cops just told you they have no reason to hold him.
Espensen: They still had more they wanted to do.
Bob: But you knew they were going to be doing that at a point in time after they said that [Grosjean] should be released?
Bob: And youíre cooperating and going along with them?
Espensen: Yes, I am.
Bob: And Mr. Grosjean asks at ... 23:26:07 for the second time if the handcuffs could be removed, right?
Espensen: Iím not exactly sure, but I believe youíre right, yes.
Bob: And again, heís refused?
Bob: And although you say at 23:26, "Hang on a minute," not until 23:48 are the handcuffs actually taken off, are they?
Espensen: I couldnít guess that youíre right. I wouldnít know unless I watch it, but I would assume thatís the correct answer.
The Ruse to Search Me After Admitting Lack of Probable Cause:
Bob: ... You came up with an idea so that [GCB agent] Vincent could see [Grosjeanís] stuff, right?
Bob: And part and parcel of that idea was that Mr. Grosjean would be held longer while this ruse occurred, isnít it?
Espensen: Well, if I hadnít came up with the idea, it would have probably been even longer.
Espensen: Because they were trying to determine a way that they could get over there and see these chips without being detected, and I wanted to hurry up and get them out of there and get this gentleman set free; so, I came up with an idea.
Bob: You were being benevolent and beneficent towards Mr. Grosjean?
IP: Your Honor, argumentative.
Court: All right.
A Foreign Concept ó Saying "No":
Bob: Did you ever think to look at the cop who had just said to you, allegedly, "Well, we have to let him go, but boy, I would sure like to get a look at this stuff" ó did you ever think, "You know, you said you had to let him go, and weíre the guys standing here with him in our handcuffs, weíre just going to let him go." Did you ever think of saying that?
Espensen: No. ...I donít know if I would have thought that. Theyíre the authority over me, so I pretty much have to follow their direction, and I have to try to work with these people as well.
Bob: They can stop people, right? ... You understand them to be police, right?
Espensen: Thatís correct.
Bob: Youíre a private citizen working for a private company, right?
Espensen: Thatís correct.
Bob: Why is this your job?
Espensen: I work for a gaming organization, and Gaming controls the gaming organizations.
Bob: Even if you donít know [if] youíre breaking the law, you know you can say no [to Gaming], right?
Espensen: I have to take instructions from the police department and Gaming as long as I know Iím not violating anybodyís rights or breaking any laws.
Bob: Whoever told you you canít say no to a police officer if they ask you to do something you donít want to do?
Espensen: As long as I want to keep my job, I follow directives unless I feel thereís really, you know, something really, really bad.
"Voluntary" Production of Information:
Bob: Now, looking at Exhibit 3, did you take down Mr. Grosjeanís passport number?
Bob: Did you take down his Social Security number?
Bob: Do you recognize that a Social Security number is somebodyís private information?
Espensen: He had a right to deny that information if he didnít want to give it. It was asked of him, and it wasnít on the information card.
Bob: It was asked of him while he was sitting in your security office in handcuffs being told that as soon as you get this information he will be able to leave, right?
Bob: Do you think thatís voluntary?
Espensen: All he had to do was say he did not want to give it.
Bob: But you had also told him as soon as you get this information, "weíll let you go," right?
Espensen: I told him I was going to fill out a [Field Interview] card, and as soon as we get this information completed, weíll get you out of here.
Bob: You also got his home phone number?
Espensen Ainít No George Washington:
Bob: [Playing videotape] Did you just say to Mr. Grosjean, and I quote, "Apparently, youíre not the person we were looking for"?
Espensen: Yes, I did.
Bob: He was exactly the person you were looking for, wasnít he?
Espensen: I couldnít tell him that, because I was instructed by Gaming not to tell him that.
Bob: So, that was a lie?
Espensen: I guess it was.
Witness: GCB Agent Phillip Pedote
My Innocuous Activity:
Bob: At any time, did you see anything on the video or on the live camera feed or have any information that would cause you to have a reason to have Mr. Grosjean stopped?
Pedote: I did not see anything to give me a reason to stop Grosjean. I did not see anything on the surveillance videotape, no.
Pedoteís (Lack of) Instructions to the IP:
Bob: [Witness reviewing Exhibit 8, GCB Agent Pedoteís personal notes from the incident] Now, let me direct you to a couple of things there. One of the problems is that when we got this, a little bit was cut off. Can you look at the left-hand margin and tell me what your interlineation is there?
Pedote: Sure. It would have said [that] [GCB Agent] Vincent said to do whatever [GCB Agent] Stolberg told them [IP] to do.
Bob: Now, you put in quotes here, "Well, if he said to grab him then donít let him leave." Who said that?
Pedote: Tony Vincent did, my senior agent.
Bob: Did you hear that?
Pedote: Yes, I did.
Bob: Do you have an independent recollection of that today?
Pedote: Not of the exact words, no. I would have to refer to my notes.
Bob: And the notes were written when your memory was fresh?
Pedote: Yes, absolutely.
Bob: I notice here it says, "Sergeant [Espensen] was yelling, Ďgrab him, grab him,í to security." Thatís about three lines up from the bottom? ... You wrote that near the time of this incident?
Bob: Iím just looking at the words, "Grab him, grab him." That sounds pretty emphatic. Do you have an independent recollection of that actually being said?
Pedote: Itís something very close to that because he was on a handheld radio, and we were looking at the monitor of what was happening on the floor of the casino. And when he grabbed the radio was when Mr. Grosjean was walking towards the front door. "Heís right there, grab him, grab him."
IP: You didnít stop [IP Security Supervisor] Espensen because you thought he was acting reasonably, correct?
Pedote: Correct. I assumed that [GCB Agent] Stolberg must have told him that they wanted him detained. At that time, I had to assume that. I didnít really know anything else to go by.
IP: And it wasnít until later when [GCB] Agent Vincent finally got a hold of [GCB Agent] Stolberg that you realized, oh, shoot, there wasnít an order going out like that?
So, according to GCB Agent Pedote, and previously GCB Agent Vincent, they had no independent information regarding the situation, and instructed the IP to simply follow the instructions previously given by GCB Agent Stolberg. Stolberg previously testified that his instructions to the IP were to give him a call if the IP spotted us. Even if GCB Agents Vincent and Pedote had given the IP an order to detain, it would have had to be an illegal order, because they both say, and Espensen agrees, that they had no information about me other than that provided by the IP, and the IP concedes that I had done nothing giving them any probable cause to stop me.
The Ruse to Search Me After Admitting Lack of Probable Cause:
Bob: Were you guys trying to come up with a way to look at Mr. Grosjeanís personal effects and papers and items?
Pedote: ... I donít recall specifically who actually ó I donít recall whose idea it was. They had ó once they had gotten him up in the detention room, pulled out the bags of chips out of his pants or wherever they were, and they were sitting on the table. Once we found out that they were large amounts of chips from different casinos, then obviously, as a Gaming Control Board agent, that sparks our interest. So, I knew we would like to see them, but we didnít do anything to direct anybody to pull them out or do anything like that, if thatís what you mean. I donít know what youíre trying to get at.
Bob: Well, and we can watch a video here, but do you recall there was frankly a ruse constructed where you guys would pretend that youíre leaving work?
Pedote: Sure, yes.
Pedoteís Justification for Looking at my Chips:
Bob: Thereís nothing illegal about carrying chips, right?
Pedote: Absolutely not.
Bob: It sparks interest?
Pedote: Well, we have to make sure there are no counterfeit chips or anything like that, yes.
Bob: Counterfeit? [How about the] money in there [gesturing to his wallet]?
Pedote: I have no idea.
Bob: Do you have to make sure?
Bob: What if thereís a hundred thousand dollars in my pocket, you donít have to make sure, do you?
Witness: Plaintiff James Grosjean
The IPís Violence and My Resistance:
Bob: Did [security guard Gentry] do anything with your arm?
Grosjean: At that point he twisted it behind my back and started twisting me into the wall.
Bob: Assume this [demonstrating] is a hammer lock, Mr. Grosjean, is that what he did?
Grosjean: Iím not sure, but I couldnít move my arm or anything.
Bob: He had your arm?
Grosjean: So, then he had my arm immobilized behind my back and he started pushing me, I guess, with both arms, I guess kind of pushing me into the wall, and thereís a concrete wall there with a rough surface, and he kind of pushed my face into the side into the wall, and he grabbed my other arm and started putting both my arms behind my back.
Bob: Other than trying to push around the side of him, did you resist him at all?
Grosjean: No. My arms were at my sides the whole time. I didnít make any resistance other than trying to keep walking and get around him.
The Threat in the Elevator:
Bob: [Reviewing the video] Did somebody in that elevator say something that stuck with you?
Grosjean: Yeah, the security guard who is nearest us, whose back is to us, is on the bottom of the screen; as the elevator was moving, I donít know what prompted him to say it, but he said, "Smack his head into the wall."
Naturally, the IP tries to pass this off as a joke. Guess what ó bomb jokes at airports donít fly either.
IP Defense ó Question my Motives:
IP: And if a casino is cheating you, you would call the appropriate authorities?
Grosjean: I might or I might not because Iíve had experiences where I thought maybe the dealer might be pulling a move on me, but I donít really know anything about that, so, you know, I just walk away from that table. I donít really bother trying to call Gaming, especially because I donít really expect Gaming to, you know, take an impartial look at something like that anyway. So, I donít bother with that. I mean, itís happened to me where I thought something was maybe going on at the table, but I didnít bother.
IP: I thought you called Gaming at the Maxim?
Grosjean: Thatís not where I thought the dealer was cheating, thatís where the casino was refusing to pay off our chips.
IP: Iím sorry, not dealer cheating, but you would call the authorities if the casino was being unfair to you or violating the law?
Grosjean: Well, it all depends what. If we have a lot of chips and are trying to cash them out and they refuse, then yes, Iíll call Gaming. Thatís the only way to try to get the money from our chips. I canít cash them out at the grocery store.
IP Defense ó Make Me Look Mean-Spirited:
IP: And you called [security guards] big uneducated goons that love to harass small people?
Grosjean: In the context Iím talking about, I look at that tape, I see six big guys with guns who are taking me in handcuffs, who are threatening me verbally and physically, and who donít know the law; so, theyíre big, theyíre uneducated on the law and theyíre threatening me, so that makes these guys goons, yeah.
IP: They donít know the law but police officers do, correct?
Grosjean: Not all police officers.
IP: They should?
Grosjean: They should. Police officers who are sworn to uphold the law I would think should know the law, but many of them donít even know the gaming laws, which is what Iím primarily concerned with and my rights.
IP Defense ó Make Me Look Criminal:
IP: You agree that criminals might carry weapons?
Grosjean: I agree.
IP: And criminals can hurt people trying to detain them?
Grosjean: They can, I agree.
IP: Criminals might hurt innocent bystanders as well?
Bob: Your Honor, I thought this was the objection we just had sustained?
Court: You know ó Counsel [Mr. Thomas], he hasnít been accused of being a criminal, and you keep putting this in a criminal context. Why donít you just say "person"? Itís more prejudicial than probative the way youíre framing the questions.
Irrelevant Topic ó Detecting Hole-Carding:
IP: Hole carding can be mistaken for cheating, correct?
Grosjean: Not by a well-trained observer.
IP: Can hole carding be mistaken for cheating by a casino personnel?
Grosjean: Not by well-trained casino personnel.
IP: How about a non well-trained?
Grosjean: Poorly trained personnel, yes, they can mistake anything for cheating.
IP: If a casino suspects that somebody is cheating, then that is a felony?
Bob: Your Honor, this is all background, and itís gone on for a good 40 minutes.
Court: True. And not only that, that last question you asked is not true. I think you misstated.
Irrelevant Topic ó My Playing Apparel:
IP: And two pairs of pants and the hat, theyíre standard gear for you when youíre going out to play, correct?
Grosjean: Pretty much. I donít always carry a second hat, often.
IP: Thatís to avoid detection?
Grosjean: So they canít get a picture, disseminate it, see who I am, all those things.
IP: Thatís something that a cheater might do as well, correct?
Bob: Your Honor, I mean, granted it is something a cheater might do, but that has nothing to do with this case and itís irrelevant. Weíve had five people stand up there and say they didnít even know who he was or why he was being watched.
IP: Your Honor, the reason heís being watched is because of the way he plays. He was under surveillance. Thatís why ó if ó
Bob: Your Honor, the uncontradicted testimony is he was being watched because he was with someone who was under surveillance.
IP: If you go back to the reason that he was being watched in the first place, itís because of the way he plays.
Court: I donít know why, but he wasnít being watched for that reason over at the Imperial Palace.
IP: Thatís absolutely true.
Court: The only reason they watched him or did anything was because someone else told them to notify them; so, sustained.
Irrelevant Topic ó Barring Skilled Players:
IP: Now, thereís nothing wrong with a casino barring an advantage player, correct?
Grosjean: Nothing wrong with it at all.
IP: Is this what we call 86ing?
Grosjean: I think thatís the industry term most people use. I call it both "86ing" or "barring," sure, they can kick me out.
IP: And being 86íd means that youíre barred from the property and should not enter the property anymore?
Grosjean: Thatís right.
IP: In order to 86 you, the casinos have to read a statement to you, correct?
Bob: Objection, irrelevant, your Honor. It has nothing to do with this matter. No, Mr. Grosjean ó itís all been testified across the board, he wasnít 86íd.
Court: Counsel, do you have any evidence he was 86íd?
IP: No, your Honor.
Irrelevant Topic ó Napping in Casinos:
IP: Now, youíve taken naps before in casinos, correct?
Grosjean: Iíve fallen asleep before in casinos. I donít know if Iíve ever really gone to take a nap like I did this time [earlier on the evening of February 28 at the IP] but, yeah, Iíve slept in casinos before.
IP: You realize that casinos can approach you when youíre sleeping there?
Grosjean: Yeah. And every instance where I was sleeping and they noticed ó
Bob: Your Honor, objection. Irrelevant. We keep going off on these tangents that have nothing to do with why weíre here.
Irrelevant Topic ó ID at Caesars:
IP: When you went in the jail [in the "Caesars Incident" in April 2000], they entered you as John Doe?
Grosjean: Thatís correct.
Court: I have a question. Whatís the relevance of this to this case, what happened at Caesars Palace? Are we talking about Caesars Palace? Iím tired of this. You better come up here, or Iím going to terminate your examination. Iíve been listening to this for the last hour and a half.
Bob: Mr. Thomas was asking you about looking around at the security guard and being nervous. ... With 20/20 hindsight, were you right to be nervous?
Grosjean: The way Iím ó everything I see, the tape, the documents ó yeah, he wasnít there to help me out or be nice. I was the guy they were interested in, he did handcuff me, even though I didnít do anything, they did search me, they did go through my ID. They did all the things that I feared they might do. I was lucky they didnít beat me up, which is something they can do, so in that sense, I looked at the bright side, I guess.
Bob: Have you heard the phrase, "itís not paranoia if theyíre really after you"?
Grosjean: Yeah, Iíve heard that.
Bob: It sort of fits here, doesnít it?
Grosjean: I think so. Like my call on it from the first time I saw him look at me turned out to be right. He was not just standing in the aisle for no reason, he was there because I was there.
Witness: Former GCB chief Ron Asher
IP: Mr. Asher, could you please give the jury a background of your education, college and any post-graduate training?
Asher: As far as my education, I have a Bachelor of Arts degree from Arizona State University in political science and economics. I have a masterís degree from Golden Gate University in San Francisco in public administration, with an emphasis in criminal justice administration.
IP: Can you give the jury a background of your work history?
Asher: Yes. I started ó actually, if you go back, my adult work history, I spent four years in the U.S. Navy Air Force. From that point, I went to work for the Arizona Highway Patrol, spent four-and-a-half years with them. From there, went back to school for 18 months, finished my degree, joined the FBI. I spent 20 years eight months with the Federal Bureau of Investigation as a special agent and/or as a supervisory special agent, and then retired on June 16th, 1990, and went to work for the Gaming Control Board as Chief of Enforcement for the Nevada Gaming Control Board. Remained there until June 30th, 1996, at which time I went to my cabin for two or three months, and after that, started Asher and Associates.
IP: You mention in terms of Gaming and the relationship between Gaming and hotel casinos, you have qualified as an expert before?
Asher: Yes, on the floor below.
IP: Beyond this other case, have you testified on that subject matter anywhere else?
Asher: Iíve actually provided both testimony and training in Armenia, Bulgaria, Romania, Moldova on the subject of gaming. Iíve provided training on the Island of Tinian in the Western Pacific. Iíve spent a month there training and also helped them open a casino over there and train their investigators during that monthís period of time, and Iíve spent time in Japan working on due diligence investigations as it relates to gaming.
The Island of Tinian?? Wow, Asher has provided training there? Now Iím impressed.
Bob: How much are you charging an hour?
Asher: I charge 175 an hour.
Bob: To date, how much have they [the IP] paid you?
Asher: Someplace between 3500 and $4,000. I donít know exactly how much, because itís a small portion of my work.
Bob: Well, you billed what you did on the case, right? You billed for your work?
Asher: Up through the time to the deposition, yes, sir. ... Preparation for trial, I have not billed that. I have no idea how many hours I have in that.
Everybodyís Doing It:
IP: Do you have an opinion to reasonableness of that search?
Asher: That particular search, that type of search, as far as Iím concerned, is reasonable, and itís done pretty much throughout the industry.
Cooperation Between Casinos and GCB:
IP: In terms of the Imperial Palace, do you have an opinion as to what they did in terms of their cooperation in this viewing of the evidence [Grosjeanís belongings on the table]?
Asher: I personally wouldnít have expected them to do anything less than to cooperate with the request of the Gaming agent.
IP: Whatís your basis for that?
Asher: Simply by knowing the relationship there and, you know, itís a love ó quite honestly, the relationship between Gaming and most of the casino licensees is a love-hate relationship. Most of the things that Gaming does is a negative towards the industry, but when security officers get the opportunity to cooperate with police officers, sworn police officers, they oftentimes really, really enjoy and become very, very helpful in that thing.
IP: How about the continued detention of Mr. Grosjean after [GCB Agent] Stolberg says, "We donít have a reason to hold him?" Do you have an opinion as to that in terms of the Imperial Palace?
Asher: Again, after the agents had the opportunity to glance at, not inventory, but to glance at the materials on the desk, which ó I mean, obviously, in 15 seconds what you see is yes, heís got chips, and they might remember a few of those, but theyíre not going to remember a great deal of that. Apparently, at that point, Mr. Espensen, goes out, follows the agents out, talks to them, and they said that they would like a copy of his passport, which was what he was using for his identification rather than a driverís license. And Mr. Espensen advised that, well, it didnít look like there was any way to get the passport, and their normal procedure would be to FI somebody, to fill out a Field Interrogation card on somebody, so he agreed to go back and get that information from Mr. Grosjean and fill it out on an FI card or a Field Interrogation card.
IP: Do you have an opinion as to whether or not that was reasonable?
Asher: Again, because the agents had asked the Imperial Palace to do that, I would be surprised if they did not do that or wouldnít have done that.
The Supposed Consequences of Saying "No":
IP: How long were you in charge or head of the Enforcement Division?
Asher: Six years, two weeks and I donít know how many hours.
IP: Based upon your experience, can you tell the jury what happens to a licensee like the Imperial Palace if they say no to the Gaming Control Board?
Asher: Again, it would depend on this particular case, but if the Gaming Control Board was concerned or it took umbrage with the fact that the licensee didnít do exactly what they asked them to do, there is a possibility of them opening a separate investigation under Regulation Five, and thatís an unsuitable method of operation. And thatís done routinely if the Gaming Control Board is not happy or if they feel like there have been other regulations violated.
IP: Do you know the ramifications and penalties under that regulation?
Asher: Regulation Five violation can range anything from an oral reprimand to a written reprimand to an order to show cause to a complaint, and can end up in anything from a fine to losing your license if you donít cooperate with the Gaming Control Board.
IP: Are there times when a casino can say no to the Gaming Control Board?
Asher: Occasionally that happens, but not normally at the working level between a security department or a surveillance department and the Enforcement Division. Theyíre very much afraid to tell the Gaming Control Board no.
The Frequency of Saying "No":
Bob: When were you the chief of the Enforcement Division [of the Gaming Control Board]?
Asher: From June 18th, 1990, until June 30th, 1996.
Bob: And in that period of time, 1990 to 1996, how many times was it brought to your attention that a gaming licensee had refused a request by a Gaming agent?
Asher: I am not honestly aware that they have, that that was ever brought to my attention that they had refused a request. If you look at 463.140, it gives Gaming agents extraordinary powers, the powers to seize, to search, to do many things that a normal person cannot do in a criminal environment.
Bob: Thatís only with respect to licenseesí properties, right?
Asher: Licenseesí property as well as applicantsí properties.
Bob: Licensees and applicants, right?
Bob: People looking for a license or holding a license?
Bob: Thatís issued by the State, right?
Bob: Not James Grosjean, no extra rights with respect to him, right?
Asher: There theyíre operating as peace officers.
Asherís Defense of the Nuremberg Defense:
Bob: Do you realize that Heimlich Himmler and Albert Speer stood in front of an international tribunal and they said to that international tribunal in 1946 or Ď47, I believe, "We had no choice; we were very afraid of what would happen if we did not listen to what we were told by Hitler"? ... Some of them were killed and some of them ó and like Albert Speer spent the rest of his life in prison, right?
Asher: Yes, thatís correct.
Bob: And you understand that I was just following orders; what is commonly known as the Nuremberg Defense is no defense, donít you?
Asher: I understand that the circumstances and the facts of killing millions of people is very different than a temporary detention under the rule of law.
IP Defense ó Blame the Victim:
Asher: Do you want me to answer as my opinion?
Bob: Yeah. Give me another opinion, sure.
Asher: If Mr. Grosjean would have simply stopped, it would have gone probably up there, he would have never been handcuffed, he would have been up there for a brief period of time. I doubt seriously that they would have even searched him, and as soon as that phone call came through, which was just a few minutes into the thing, he would have been out of there with them saying the same thing they said, "Weíre very sorry to detain you. You werenít the person we were looking for."
Bob: But he still would have been up there?
Bob: And he still wouldnít have had a choice, right?
Asher: Well, his choice would have been to walk up there with him like most of us would do.
Aahh, so I can go to the back room in handcuffs, or free of handcuffs. What a choice! What about choosing to walk to the street and leave the IP?
The Asher Bob-and-Weave:
Bob: Iím not asking you to testify to any facts, sir. Iím asking you to testify to a hypothetical, which is what you are supposed to do as an expert; so, here we go again. Hypothetically, the words given to Mr. Espensen [of the IP] by [GCB Agent] Vincent were, "If [GCB Agent] Stolberg told you to grab him, then donít let him leave." Thatís all the information Espensen has in this hypothetical; is it then unreasonable for him to detain Mr. Grosjean?
Asher: If that was the information and that was his understanding and the communication at the time, then, you know, I donít think so, but I donít know what he meant by that and ó
Bob: You donít think it was unreasonable?
Asher: No, I donít think that if it was ó if you knew that from some other source, but if he was under the misunderstanding ó heís ó
Bob: Iím not asking for a dissertation on the evidence, Iím asking for an answer to the hypothetical, sir, and the hypothetical has all its facts. Letís try it again. ...
The "Plain-View" Defense:
Bob: Now, with the police officers coming back through and taking a look at the stuff on the table, isnít your distinction really a distinction between a little search and a big search, rather than no search and a big search?
Asher: At that point, I would refer to it as a plain view search and plain view ó itís in plain view at that point, and the agents look at it, they donít inventory it, they donít touch it and they leave within 15 to 17 seconds. Thatís how I would look at it.
Bob: Now, do you recognize that that stuff, from what youíve testified, the stuff on the table is in plain view because of ó and, again, based on your testimony ó because of the orders of [GCB Agent] Vincent to the IP?
Asher: I donít agree with that, sir. The order was to detain; the procedures that the IP have is a separate thing. They didnít say detain Mr. Grosjean, take out all of his stuff and put it out on the table for us.
Bob: Oh, but you just testified that you know that thatís standard operating procedure when they take somebody into a back room, right?
Asher: I know that thatís done routinely throughout the casino industry. They pat down for weapons and they ó
Bob: Empty pockets?
Asher: For protection of personal property, they lay it on the end of the table.
Bob: So, Agent Vincent would know that too, right?
Asher: I donít know what Agent Vincent knows.
Bob: If ó if the property was on the table as a result of Vincentís order, and Vincent, when he gave that alleged order, expected that that would be where the property would end up, would you agree then that this was not a plain view search?
Asher: I would think that would be up to the Court to decide.
Bob: But you can give opinions on other stuff. Okay.
Bob: Letís try this: Whatís the Plain View Doctrine?
Asher: The Plain View Doctrine is, if you can see it in plain view as a law enforcement officer, then itís not excluded as part of a search.
Bob: ... if you go arrange something in a special way or have somebody do it for you so that you go look at it, thatís no longer something thatís in plain view, thatís something in altered view, isnít it?
Asher: If itís done that way, then itís not necessarily in plain view, thatís correct.
Asher: But I think he also acted ó if I remember the video, I think he accidentally knocked the chips over.
Bob: Here he says, in his own report, he says heís moving them around so he can get a better look, right?
Asher: So they can look for 15 seconds, yes, sir.
Bob: No, they can look as long as they want. It just really wasnít that interesting, was it?
Asher: No, Iím sure it wasnít.
The Asher Rules:
Bob: Can you look at the jury and tell them right now that a private casino has more rights to search and seize a person than a public police officer?
Asher: As a private individual oftentimes, even as a public or as a private investigator, you donít advise people under their Miranda warnings. I donít have to advise when I go out and interview people under Miranda. I go out, and I tell them Iím a private investigator. I donít play by the same rules as a peace officer.
"Voluntary" Production of Information:
Bob: And while in handcuffs, do you recall while in handcuffs for that other 20 minutes, which I take it you would agree he should have been let go, right?
Asher: Oh, absolutely. Once they said to let him go, then you release him and let him go.
Bob: You donít go up to him and say, "I need some information on this card ó I need some information on this card, and as soon as I get it, weíll let you go," do you?
Asher: I think itís common policy, and I used to do it many times myself is to fill out an FI card on somebody that might some day be suspected of doing a crime or other crimes at some other date. So, thatís a normal procedure to do Field Interrogation cards.
Bob: Do procedures trump the Constitution?
Asher: That is a normal policy and procedure thatís handled in law enforcement and directives all the time. Iím sorry, but it is.
Bob: What about the question?
Asher: The question?
Bob: The question.
Asher: The question is?
Bob: Do procedures trump the Constitution, in your opinion?
Asher: The question is, the Constitution is there always, but itís a question of whether that particular thing, filling out an FI card, is prohibited by the Constitution.
Bob: No. The question is whether or not getting information ó personal information from Mr. Grosjean while heís held in handcuffs and everybody concerned knows that he must be released is in accord with the Constitution, even though the policy says itís okay?
Asher: I mean, if thatís your view, I canít testify to that.
Bob: He stayed there in handcuffs, right?
Asher: He was there in handcuffs.
Asher: And voluntarily ó
Bob: And he had been told that they were not going to be taken off until he leaves, right?
Asher: And voluntarily provided the information that Espensen asked for.
Bob: See, here is my problem, Mr. Asher. Youíre the former head of a law enforcement agency in the State of Nevada, and you actually believe that somebody who is in handcuffs, that is told that they canít leave until they give up the information, voluntarily gives up that information when they give it; donít you really believe that?
Asher: I believe that you look at the personís education, you look at the personís background, you look at the writings that heís done in the gaming area, and I think heís smart enough to have declined to give the information based on whatís in his book.
Aahh, itís a twist of the "Blame-the-Victim" Defense. Itís the "The-Victim-is-Smart-Enough-to-have-Avoided-This" Defense. Or is it the "Smart-People-Donít-Have-or-Need-the-Same-Rights-and-Protections-as-Stupid-People" Defense? Iím not sure exactly what Asherís point is, but I can guarantee that the next time I am in the back room, things will go a bit differently.
Who Can Say "No":
Bob: And then he goes to jail, doesnít he?
Asher: No. Does he?
Bob: Well, theyíre not taking off the handcuffs, are they?
Asher: He doesnít go to jail. Heís already been told heís leaving. Theyíre going to get the cuffs off of him.
Bob: So, he can look at them being directed by security ó here we are. Mr. Asher, Mr.
Grosjean, who is a private individual being held in handcuffs in the back of the Imperial Palace, has the ability and the authority and the wherewithal, in your opinion, to look a security officer, who is being directed by a Gaming agent, directly in the eye and say no, right?
Asher: I think he has that authority, and that would have been ó they wouldnít have gone any further with it.
Bob: But ... a security supervisor who is directed to detain an individual that he knows the message was, "Give me a call if you see him," does not have the ability, the authority, the wherewithal, may I say the cajones, to look a Gaming agent in the eye and say no when they say take him and donít let him leave. They canít say no, right?
Asher: I canít answer your question.
Asher Butchers Terry:
Bob: Do you know that under the Fourth Amendment, Mr. Grosjean is guaranteed the constitutional right to be protected from unreasonable searches and seizures. And what is protected is his person, his paper and ó his papers and his personal effects?
Asher: I understand that in the Constitution and in Terry v. Ohio, it is also stated that there is no way to stop the enforcement of law enforcement, but that there is an exclusionary rule that if his rights are violated at that point, that then they exclude that from trial and, Iím sorry, but Mr. Grosjean is not in trial.
Bob: So, those protections only apply if heís arrested?
Asher: Thatís not what I said. ... I said that in Terry v. Ohio, which you brought up during deposition, Terry v. Ohio makes it specific to law enforcement to start with. It makes it also ó Terry v. Ohio ó when you look at that ó ...
Bob: Now, what rights are more important in this country, in your opinion, than the rights that are expressly laid out in the Bill of Rights in the United States Constitution?
Asher: The right to protect society as a whole as part of that.
Bob: So, do I understand, then ó and you feel that thatís a right that the State holds to protect, right?
Asher: I think after 9/11 we should be concerned about protecting societal rights, yes.
Hallelujah!! I was worried that we would go through the whole trial without someone invoking 9/11 as a justification for any and all illegal corporate and governmental activities. Iíll sleep better tonight knowing that, although Osama still runs free, the IP Security Department is on the case. I wonder if the IP has advised the Homeland Security team to put the U.S. on Red status, because I am planning a large-scale viewing of hole cards tomorrow on day shift.
Bob: Sir, do you realize that you just said that the right of the State to protect the citizens of this country trumps and overrules the rights of the citizens that are guaranteed in the Constitution?
Asher: No, thatís not what I testified to. Iím sorry. I believe in rule of law, sir.
Bob: The rights of the citizen as set forth in the Bill of Rights are the primary protections, the absolute sacrosanct protections that people in our society have, correct?
Asher: Again, I would agree with you, but Iím not a constitutional lawyer.
Bob: Iím just asking.
Asher: That is your opinion, and I really canít ó I wouldnít care to debate you on constitutional law.
Bob: I am not for a moment seeking to equate Mr. Grosjeanís ó the invasion of Mr. Grosjeanís liberty with the murder of millions of people. I am not, but I am asking, doesnít that and doesnít an invasion of, in your opinion, an invasion of a constitutional protection also deserve the highest protection from the State?
Asher: I was not hired on behalf of the State. I was hired on behalf of the Imperial Palace.
Asherís interpretation of Terry v. Ohio: law enforcement (because Terry does not apply to civilians or corporations) can detain and search anyone at any time, but that if they do not have probable cause to do so, then any evidence so obtained would not be permitted in a criminal trial against the detained person.
Bob: Okay. Letís go to what I asked first, which is, did any of them have, and Iím looking at Pedote, Vincent and Espensen ó any ó Pedote, Vincent and Espensen, did any of them have any knowledge of anything that Mr. Grosjean himself had done that they then relied upon to reach a conclusion of reasonable suspicion in order to detain Mr. Grosjean?
Asher: Iím not aware that they knew any more than what weíve just said.
Bob: Which would be no, they did not have any articulable facts regarding his play, what he was doing, anything like that, right?
Asher: Again, I donít know what they saw on the surveillance because that really doesnít ó they donít talk about observing him on surveillance down on the floor and what he was doing on the floor, et cetera.
Bob: And you read the reports, and they certainly didnít rely on anything there, right?
Asher: Again, I did not see anything there that they did.
Bob: Okay. You said you read [Terry v. Ohio].
Asher: Yes, I did.
Bob: Do you realize that the rule of law in Terry, after you read it, is that in order to detain an individual ó detain, just stop for any reason ó detain an individual, there must be articulable facts about the personís activities giving rise to a reasonable suspicion that they either have committed or may about to be committing a crime?
Asher: Iím familiar with Terry, and Iím familiar with the articulable facts that youíre talking about.
Bob: Where are the articulable facts? Heís held, right?
Bob: [Grosjean is] held on Gaming agent orders from what you understand, right?
Asher: My understanding is that he is detained based on an order from a Gaming agent and for temporary detention to find out if heís wanted for anything.
Bob: And Terry talks about temporary detentions, right?
Asher: Yes, it does.
Bob: Thatís what Terry is about. You reread it, right?
Asher: Several times, yes.
Bob: And in rereading it, it says that you canít temporarily detain somebody, unless you have articulable facts about their activities, right?
Asher: Or if you do that, then that information is ó anything that you gain from that is excluded from the trial in a criminal trial.
Bob: Or what you did is an illegal detention, in other words, right?
Asher: I would not ó I canít classify that as illegal in this particular case. If Mr. Grosjean or the plaintiff would have stopped when he was asked to stop ó
Bob: Thereís no question, sir.
IP: Your Honor, I would like him to be able to answer. He was finishing up the last question.
Court: Iím sure you would, but thereís no question.
Asher Butchers Hiibel:
Bob: So, again, right back where we were before a little bit ago, in your opinion, Terry only applies for the exclusionary rule in criminal cases but does not define whatís legal and illegal in the form of search and seizure under the Constitution?
Asher: Terry defines that you can ó that if you detain or seize, that you can pat the person down to do a search for weapons for the safety of the officers, and it doesnít go much beyond that. There are other court cases, Iím sure, that have added to Terry.
Bob: Terry also said, though, that you [canít detain] without articulable facts giving rise to a reasonable suspicion, right?
Asher: But we now know, even here, that under Hiibel that a police officer could detain and ask for an identification, but what if the person chooses not to stop?
Bob: Wait a minute, sir. Donít misstate Hiibel to me. I was the attorney on that darn case. Hiibel actually says that if you detain for reasonable suspicion based on articulable facts, right?
Asher: Reasonable suspicion.
Bob: Based on articulable facts, right?
Asher: That a crime has been committed.
Bob: Yes. Based on articulable facts?
Asher: Again, I didnít read it that closely.
Bob: It cites to Terry, doesnít it?
Asher: It discusses Terry in it, yes. But, again, I canít answer you as an attorney or as a judge, sir.
Bob: No, because as an attorney or a judge or somebody stating the law, this is an illegal seizure, isnít it?
Asher: You would have to determine that as the judge or as the attorney.
Bob: Or as the jury.
Asher: Or as the jury.
Bob: Thank you.
Asherís Firsthand Knowledge:
Bob: And you donít have any firsthand information on this matter at all, do you?
Asher: I didnít go ó I wasnít there.
Bob: So, everything youíre testifying about is based on things other people have told you and from what Mr. Thomas [the IP lawyer] has told you?
Asher: Mr. Thomas has told me very little but from reading the depositions and stuff.
Bob: Thank you.
Asher: Youíre welcome.
Court: Counsel, redirect?
IP: No, thank you, your Honor, and the Imperial Palace rests.
Listening to Asher was tiring. It was impossible to keep up with all the illogical statements. We had too many targets to attack. The closing statement from the IP is the same. Bob, Thea, and I canít write fast enough on our pads. We have to let many of the targets go, because the jury seems tired by now, and, we hope, smart enough to have heard what we heard. Sure enough, after less than an hour of deliberation, they contact the judge with two questions that seem promising to us: 1. How exactly did the GCB escape the lawsuit, and 2. How will punitive damages be determined?
It is less than two hours before we get the call to return to the courthouse. Iím not surprised. This oneís a no-brainer, and itís Friday night. We all want to move on:
Court: Have you all reached a verdict?
Jurors: Yes, we have.
Court: Would you give the verdict form to the bailiff, please? Weíll have the clerk read the verdict out loud.
Clerk: Court, Clark County, Nevada. James Grosjean, plaintiff vs. Imperial Palace and Donnie Espensen, defendant. Case No. A442687. Department No. VIII.
Special verdict: We the jury in the above entitled case find the following special verdict on the questions submitted to us.
Question 1. Do you find by a preponderance of the evidence that the defendant named below or either of them violated the constitutional rights of the plaintiff James Grosjean, to be free of unlawful search or of unlawful seizure or both under the Fourth Amendment of the United States Constitution? Defendant Imperial Palace, yes. Defendant Donnie Espensen, yes.
Question 2. What amount of money damages do you find should be awarded to the plaintiff, James Grosjean, from the defendants found liable in Question 1? Defendant Imperial Palace, $99,990. Defendant Donnie Espensen, nine dollars.
Do you find that any defendant for whom you marked yes in Question 1 liable to plaintiff James Grosjean for punitive damages? Imperial Palace, yes. Donnie Espensen, no.
The Punitive-Damages Hearing
On November 1, we met again in court in front of the same jury to determine the amount of punitive damages to be awarded. A CPA testified regarding the IPís financial position. Some exhibits were entered into evidence. Bob made a statement. The IP made an unrepentant statement, the highlight of which was: "We bring that out only because the corporate mob mentality ó this is much more of a mom and pop situation. This is not Mandalay Bay; this is not Park Place; this is not Caesars Palace. This is a much smaller situation that a family built. They bought a small hotel, they built it up here." By the CPAís testimony, the Imperial Palaceís hotel, casino, and land is owned free and clear ó on the Las Vegas Strip. "Mom and pop"?
Six of the eight jurors agreed on a punitive-damage award of $500,000, reduced under Nevada statute to $300,000, and reduced to $150,000 by Judge Gates, who felt the award was "excessive." With the compensatory damages, the punitives, the interest, and attorneysí fees, we hope to collect around $320,000, to be chopped threeways (Mike, me, and BobThea). When we rejected the arrogant and stingy offers from the IP, itís not because we expected this pecuniary result. Like I said, I donít care about money, but if money is the only way to get the IPís attention, then I want as much of it as possible.
To date, the IP shows no remorse (they are still appealing this verdict) and the judge thinks the award was excessive, but on October 22, 2004, eight civilian residents of Las Vegas sent a message that they do not approve of the illegal activities of the Imperial Palace and the other casinos in this town (since Ron Asher gave expert testimony that the IPís actions were normal throughout the industry). Maybe, just maybe, Bob, Thea, Mike, and I have done, or at least started, what we set out to do ó change the world. ♠
[Note from Arnold Snyder: James Grosjean is the author of Beyond Counting, the blackjack hole-carder's bible. For the latest edition, see his Beyond Counting web site.]
For more articles by James Grosjean see CTR-Averse Betting, 42.08%, Scavenger Blackjack, Beyond Coupons, A Funny Thing Happened On My Way To The Forum. James Grosjean is a member of the Blackjack Hall of Fame.
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