You'll find some interesting reading in the attached legal opinion from the US Court of Appeals for the Fifth Circuit. It offers some thoughts about a sports betting case which had been winding its way through the courts in that state.
Several Caribbean sportsbook operators were accused of conducting some of the financial transactions in Texas. Those folks were hit with a variety of charges which included money laundering, racketeering. The Courts overturned the case and the details are included here.
We'll also run some legal commentary on the case from some attorneys who are quite knowledgeable in the areas of internet gambling.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10773
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES TRUESDALE; RONALD HAMILTON;
RICHARD E. JONES; SANDRA MILNER,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Texas
August 24, 1998
Before GARWOOD, JONES and WIENER, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants James Truesdale (Truesdale), Ronald Hamilton
(Hamilton), Richard E. Jones (Jones), and Sandra Milner (Milner) (collectively
appellants) were convicted on multiple counts for their involvement in
a gambling operation. Finding that there is insufficient evidence supporting
the convictions, we reverse on all counts.
Facts and Proceedings Below
This case arises from a sports wagering operation that accepted bets
in the Caribbean, but conducted some of the financial transactions related
to those bets in the Dallas, Texas, area. The participants were indicted
on various conspiracy, money laundering, travel in aid of racketeering,
and gambling counts related to their involvement in this bookmaking operation.
They were all convicted on multiple counts and sentenced to prison terms
ranging from 15 to 46 months.
Jones was the head of an international sports wagering service, variously
known as Spectrum or World Sportsbook (WSB), that operated in the Dominican
Republic, Jamaica, and Dallas. WSB maintained offshore offices in order
to provide a way for people in the United States to place bets on sporting
events without running afoul of domestic gambling laws. In Jamaica and
the Dominican Republic, a properly licensed company that complies with
local laws can legally operate a bookmaking service, like WSB, as long
as the service does not accept bets from local individuals. In Dallas,
however, bookmaking is illegal under the laws of the State of Texas.
The offshore operation began in 1990 when Jones formed Spectrum SA
in the Dominican Republic for the purpose of accepting international phone
bets. Spectrum was formed with the assistance of a local attorney who filed
the necessary paperwork and helped Spectrum obtain a license from the Dominican
government that allowed it to accept wagers on sporting events via international
phone calls. To facilitate this business, Spectrum had an office in the
Dominican Republic, with eight phones and desks, that was staffed during
regular business hours with persons who would answer the phones and process
the wagers.
Later, the operation was moved to Jamaica because Jamaica had lower
phone rates. In Jamaica, a new corporation was formed with the assistance
of a local attorney who filed the required paperwork, making the operation
legal under Jamaican law. WSB's office in Jamaica, like its office in the
Dominican Republic, was set up with desks and multiple telephones for the
purpose of receiving bets from offshore. The Jamaican office was staffed
by persons from the Dominican Republic, Jamaica, and the United States.
Bettors in the United States could place bets at these foreign offices
through toll-free numbers that WSB had set up. There were several toll-free
numbers associated with the wagering service. Some of these numbers terminated
at locations in the Dallas area, while others terminated in the offshore
office of WSB.
The numbers that terminated in the Dallas area were "information only"
lines and were not used to accept bets. Two of these information-only lines
terminated at Jones's and Truesdale's homes. A potential bettor would first
have to call one of these information lines. Thereafter a member of the
operation would send an information packet to the bettor explaining the
operation. The information packages gave general information about WSB,
payoff information, information on how to set up a wagering account, etc.
These information packages listed, among other things, two information-only
numbers for contacting WSB.
Before a bettor could place bets, he would first have to send money
to open a betting account with WSB. To open an account or to replenish
an existing account, bettors would wire money via Western Union or send
it with Federal Express. Two gamblers testified at trial that they made
their checks payable to S.K. Milner. The government also presented evidence
that Truesdale and Hamilton would go to the Western Union office to pick
up the money transfers and deposit the money in various bank accounts belonging
to Truesdale, Jones, or Milner, in the Dallas-Fort Worth area.
Not all bettors were required to pay up front. Those that did not maintain
betting accounts with WSB would mail large amounts of cash to Jones, listing
Milner as the return addressee. Milner was listed as the return addressee
so that if the packages got lost in the mail they would still reach a member
of the operation. Postal inspectors seized several of these packages; Jones
admitted that two of the packages were gambling proceeds and a third was
money connected to gambling.
Once a betting account had been opened with WSB, a bettor could call
the information lines to get balance information about his account. However,
he could only place a bet by calling one of the betting lines in the Dominican
Republic or Jamaica. The payoffs to winners were made from accounts in
the Dallas-Fort Worth area belonging to Truesdale and Hamilton.
In addition to their involvement with WSB's financial transactions
and information lines, Hamilton and Truesdale both maintained their own
sports information telephone lines through which they promoted WSB by advertising
the wagering service and giving out information-only toll-free numbers
to call. In exchange for this advertisement, they were given fifty percent
of the profits that WSB derived from bettors that they brought in.
Milner was even more involved in the organization. In addition to mailing
out information packages, Milner also received money from bettors. Milner
also had access to Jones's bank account and post office box, which were
used for WSB-related business. And she handled many of the accounting matters
related to the bettors' accounts.
Jones, as the head of WSB, traveled frequently to Jamaica to oversee
the operation. He could also monitor the operation from his home in Dallas
where he had access to the betting information. From his home in Texas
he could access the Jamaican computer to view betting information. The
computer in Jones's home was equipped with a modem that not only allowed
him to view information, but also allowed Jones to input information directly
into the Jamaican computer.
On December 8, 1992, Jamaican police, with the cooperation of United
States law enforcement personnel, searched WSB's Jamaican office. After
the search in Jamaica, the operation was moved back to the Dominican Republic
and continued there.
On June 18, 1993, law enforcement officials moved to shut down the
WSB organization in Dallas. The search of Jones's home revealed that Jones
maintained an office in his home that contained a computer, office-size
photocopier, shredding machine, two desks, multi-line telephone, a fax
machine, and a bank of televisions. A safe was found in the floor of the
master bedroom. Agents seized documents, including a tally sheet indicating
that more than $2 million were wagered from April 15, 1993, to June 15,
1993. They also found some black ashes floating in the toilet. While the
agents were searching the home, the phone rang several times with callers
asking for "line information" and checking their deposits. Three of the
callers also asked to place bets.
When agents searched Hamilton's home they found a tally sheet of bets
placed with the operation similar to the sheet from Jones' home. The agents
also received a call from a person wanting to know the line on a sporting
event, and when asked whether he wanted to place a bet, he replied "Yes."
The agents also seized a list of bettors.
At Truesdale's and Milner's residences the agents seized numerous WSB
documents, cashiers checks, and Western Union transfer receipts and money
order receipts totaling $473,114.
The appellants were indicted for conspiring to commit various violations
in connection with their gambling operation. Additionally, they were each
charged with various substantive offenses including operating an illegal
gambling business, traveling in aid of racketeering, and money laundering.
The jury found Truesdale, Hamilton, and Milner not guilty of conspiracy,
but guilty on several counts of money laundering and guilty of illegal
gambling. Jones was convicted of conspiracy, illegal gambling, and money
laundering, but found not guilty on most of the "traveling in aid of racketeering"
counts.
At sentencing, the court granted a downward departure for all appellants.
Truesdale and Hamilton's base offense levels were reduced from 20 to 12,
and Milner and Jones's levels were reduced from 23 to 16.
Truesdale was sentenced to 15 months in jail and 3 years' supervised
release, fined $10,000, and ordered to pay a special assessment of $250.
Hamilton was also sentenced to 15 months in jail with 3 years' supervised
release, fined $7500, and ordered to pay a special assessment of $100.
Jones was sentenced to 46 months in jail with 3 months' supervised
release, fined $12,500, and ordered to pay a special assessment of $350.
Milner was sentenced to 24 months in jail and 3 years' supervised release
and no fine and ordered to pay a $200 special assessment.
Discussion Appellants, who made appropriate Fed. R. Crim. P. 29 motions
below, argue that there was insufficient evidence supporting their convictions
on Count Two for illegal gambling. We agree and reverse their convictions
on Count Two. Additionally, because we agree that the appellants did not
engage in illegal gambling as alleged in the indictment and charged to
the jury, we also reverse the conspiracy, money laundering, and travel
in aid of racketeering convictions, since those convictions all depended
on a finding that the appellants engaged in illegal gambling activity.
The standard of review for sufficiency of the evidence is high, and
we must affirm if a rational trier of fact could have found that the evidence,
viewed in the light most favorable to the government, established guilt
beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Gardea Carrasco, 830 F.2d 41, 43 (5th Cir. 1987).
Count Two of the indictment charged Jones, Truesdale, Hamilton, and
Milner with conducting an illegal gambling operation in violation of 18
U.S.C. § 1955, which prohibits conducting, financing, managing, supervising,
directing, or owning, "all or part of an illegal gambling business." See
18 U.S.C. § 1955(a). Under section 1955, an illegal gambling business
is defined as a gambling business that: (1) violates state or local law,
(2) involves 5 or more people, and (3) is in continuous operation for more
than 30 days or has gross revenue of $2,000 in a single day. See 18 U.S.C.
§ 1955(b)(1); United States v. Heacock, 31 F.3d 249, 252 (5th Cir.
1994).(1)
In order to meet the first prong (violation of state law), the indictment
alleged that appellants' gambling operation was being conducted in violation
of Chapter 47, Gambling, of the Texas Penal Code. The indictment did not
cite a specific provision within this chapter, but it alleged only "bookmaking."(2)
Additionally, the government's case focused entirely on and the jury charge
instructed only on the "bookmaking" provisions of Chapter 47. Chapter 47
defines "bookmaking" as follows:
"(A) to receive and record or to forward more than five bets or offers
to bet in a period of 24 hours;
(B) to receive and record or to forward bets or offers to bet totaling
more than $1,000 in a period of 24 hours; or
(C) a scheme by three or more persons to receive, record, or forward
a bet or an offer to bet." Tex. Penal Code § 47.01(2)(A)-(C).
Under Texas law "bookmaking" is illegal, and if a person intentionally
or knowingly commits "bookmaking," he commits the offense of gambling promotion.
Tex. Penal Code § 47.03(a)(2). Bookmaking, however, is not the only
activity that constitutes gambling promotion. Section 47.03(a) lists five
separate categories of activity (including "bookmaking") each of which
can constitute gambling promotion.(3) Section 47.03(a) makes it a separate
offense for an individual, for gain, to ". . . become[] a custodian of
anything of value bet or offered to be bet[.]" Tex. Penal Code § 47.03(a)(3).
In this case, neither the indictment nor the jury charge nor the government's
argument alluded to this section. The indictment only mentioned bookmaking
and the jury charge only tracked the language of sections 47.01(2) and
47.03(a)(2). Thus, the illegal gambling convictions can only be sustained
on the basis of a violation of the Texas law against "bookmaking," and
the fact that the appellants engaged in financial transactions in the State
of Texas that may have run afoul of section 47.03(a)(3) is irrelevant.
So far as concerns the violation of the state----here Texas----law element
of section 1955, this case was charged, tried, and instructed on solely
on the basis of a claimed violation of the Texas prohibition against "bookmaking"
as contained in sections 47.01(2) and 47.03(a)(2).
Appellants claim that there was insufficient evidence that they engaged
in illegal bookmaking in Texas, because the bookmaking portion of their
business occurred in Jamaica and the Dominican Republic. They argue that
no bets were received, recorded, or forwarded in Texas. The government,
however, argues that the jury could have inferred that the operation received,
recorded, or forwarded bets, and thereby conducted illegal bookmaking,
in Texas, and, in the alternative, the government argues that the operation
conducted financial transactions related to the gambling operation with
bettors in Texas, and, thus, a part of the betting operation's business
was transacted in Texas, in violation of Texas law. We find the government's
arguments unpersuasive.
As stated in the foregoing summary of the evidence, it is plain that
the bookmaking activities occurred outside the United States in Jamaica
and the Dominican Republic. Under section 1955, the illegal gambling activity
must violate the law of the state in which it is conducted. The evidence
at trial indicated that the bets were taken in the Dominican Republic or
Jamaica (where such activity is legal), and the government produced no
evidence that anyone in the organization accepted bets in Texas, or otherwise
violated the Texas bookmaking law. The government simply argues that the
jury could have inferred that some bets were also being accepted in Texas,
and thus appellants engaged in conduct that violated Texas law.
There is evidence that Jones took bets in the Dallas-Fort Worth area
before he moved the operation offshore, and thereby violated Texas' bookmaking
statute, but this evidence is irrelevant since these Texas bookmaking activities
occurred before the time period stated in the indictment.
The fact that two of the toll-free numbers used by the organization
terminated at the Texas residences of Truesdale and Jones is not probative
of illegal bookmaking without some evidence that bets were actually accepted
over these phone lines. If these were the only phone lines associated with
WSB and the only means through which bettors could communicate with WSB,
then perhaps a jury could rationally conclude that the lines were used
for illegal betting.(4) But there were other toll-free numbers, which were
specifically designated as "betting lines," that terminated offshore and
were in fact used to place bets. That is why there was a big operation
offshore. It is not rational to infer beyond a reasonable doubt that simply
because the phone numbers could have been used to receive bets in Texas,
that they were actually used for this illegal purpose.
The only evidence that illegal betting was conducted over these information-only
phone lines in Texas came from agents who answered the phones while searching
the residences. When agents answered the phones at Jones's and Hamilton's
residences, callers either asked for line information or checked whether
their gambling account deposits had been received. Two agents testified
that they took bets from these callers, but their testimony is not probative
of any wrongdoing by the appellants.
A caller at Hamilton's house did not ask to place a bet, rather the
agent searching the residence offered to take a bet from the caller. Agent
Molina testified that when he answered the phone at Hamilton's house, he
offered to take a bet from a caller, and the caller asked whether he had
called the right number. Even after Molina answered "Yes," the caller refused
to place a bet. Three callers at Jones's house placed bets on basketball
or baseball games. But, the testimony does not suggest that any of these
three callers had ever placed a bet over one of these lines before. Indeed,
one caller thought he was calling Jamaica.
The fact that agents allowed people to place bets on these phone lines
is probative of very little. At best it shows that callers may have attempted
to place bets in Texas, but it does not indicate that appellants accepted
bets from callers on these phone lines.
In addition to these phone calls, the government also points out that
Jones had the capability to input information (such as bets and line information)
into the betting computer in Jamaica from his home computer in Dallas.
But there is no evidence indicating that Jones (or anyone else) ever did
this. The government also argues that a notebook seized from Hamilton's
residence containing account numbers, teams, and amounts could have been
notes for accepting bets in Dallas. Finally the government argues that
black ash found floating in Jones's toilet was evidence of something illegal.
Perhaps in some other circumstances, evidence of callers attempting
to place bets, the mere capability to input illegal bookmaking information
into the offshore computer, and the other circumstantial evidence might
lead to a rational inference that appellants were engaged in illegal bookmaking
in Texas. However, looking at the overall circumstances of this case, such
an inference is unwarranted. Jones and his co-appellants went to great
effort to make sure that their operation was legal. They set up offshore
offices and consulted with lawyers in the United States and abroad on the
legality of their enterprise; they furnished the Caribbean local offices
with desks and telephones and staffed them with personnel to accept international
phone wagers; they set up separate phone lines that could be used to place
bets in the offshore offices. Under these circumstances, without specific
evidence of any wrongdoing, it is irrational to conclude beyond a reasonable
doubt that after having gone through the effort of fully equipping, staffing,
and widely advertising the Caribbean offices, the appellants nevertheless
illegally accepted bets in the United States.
The government has no direct evidence supporting its contention that
appellants engaged in illegal bookmaking in Texas. And the circumstantial
evidence here does not furnish an adequate basis from which a reasonable
jury could conclude beyond a reasonable doubt that the appellants were
engaged in bookmaking in Texas. The appellants went out of their way to
stay within the law. The mere fact that they had the capability or even
the opportunity to break the law by accepting bets in Texas is insufficient
to prove that they actually did so.
In light of the weak circumstantial evidence, the government argues
in the alternative that the convictions can be upheld because appellants
accepted money from bettors and paid out proceeds from bets in the United
States. The government maintains that these financial transactions were
an essential part of the operation. It may be true that these financial
transactions were essential to the overall operation, but they do not establish
an essential element of the crime of "bookmaking" as it is defined by Texas
law. The Texas bookmaking statute prohibits recording, receiving, and forwarding
bets; where and how the money is paid out is irrelevant under section 47.03(a)(2).(5)
Becoming a custodian of money that is used to place bets offshore would
be a violation of section 47.03(a)(3). However, the indictment did not
allege that the appellants violated section 47.03(a)(3) and the jury was
not instructed on any such violation. Nor was the case tried on that theory.
In short, the government's case and the jury's verdict were focused exclusively
on illegal bookmaking, and we cannot affirm the case on a different theory.
Because there is insufficient evidence to establish beyond a reasonable
doubt that the appellants were guilty of operating a bookmaking service
in violation of the Texas bookmaking statute, we reverse the convictions
on Count Two. Additionally, because we are reversing the underlying gambling
offense, we also reverse Jones's Conspiracy and Travel in Aid of Racketeering
convictions, and we reverse all the appellants' money laundering convictions.
All these convictions are predicated on the section 1955 violation charged
in Count Two.
We reverse the money laundering convictions because without the gambling
conviction there is no underlying criminal activity. Milner and Jones were
convicted pursuant to 18 U.S.C. § 1956(a)(1)(A)(I) for: (1) conducting
or attempting to conduct a financial transaction, (2) which the defendant
then knew involved the proceeds of illegal activity, (3) with the intent
to promote or further unlawful activity. See United States v. Gaytan, 74
F.3d 545, 555 (5th Cir. 1996). Truesdale and Hamilton were convicted pursuant
to 18 U.S.C. § 1956(a)(1)(B)(I) for: (1) conducting or attempting
to conduct a financial transaction, (2) which the defendant then knew involved
the proceeds of illegal activity, (3) with the intent to conceal or disguise
the nature, location, source, ownership, or control of the proceeds of
unlawful activity. See United States v. Wilson, 77 F.3d 105, 108 (5th Cir.
1996).
Money laundering requires that the defendant conduct or attempt to
conduct a financial transaction involving the proceeds of an illegal activity.
In this case, the only illegal activity that was ever alleged or submitted
to the jury was illegal bookmaking. As discussed above, we reverse those
convictions. Without those convictions, no illegal activity has been properly
established upon which to base a money laundering conviction. We suspect
that appellants' financial transactions in Texas probably ran afoul of
section 47.03(a)(3), but the case was not tried on that theory, and without
an indictment and appropriate jury instructions, we cannot uphold the money
laundering convictions on such a basis.
We also reverse Jones's convictions for travel in aid of racketeering
and conspiracy. Like money laundering, travel in aid of racketeering requires
an underlying criminal activity. Jones was indicted for violating 18 U.S.C.
§ 1952(a)(3), which requires that the defendant travel in interstate
or foreign commerce with the intent to "promote, manage, establish, carry
on, or facilitate the promotion, management, establishment, or carrying
on of any unlawful activity[.]" 18 U.S.C. 1952(a)(3). The travel in aid
of racketeering counts were explicitly made dependent on Count Two. The
indictment specifically referred to the gambling enterprise alleged in
Count Two as the unlawful activity supporting the travel in aid of racketeering
counts. Since we reverse the convictions on Count Two, there is no illegal
activity on which to base a travel in aid of racketeering conviction, and
hence we reverse these convictions. Finally, because we reverse all the
substantive counts, we also reverse Jones's conviction for conspiracy to
commit those offenses.(6)
Conclusion
For the foregoing reasons, we reverse the appellants' convictions on
all counts.
REVERSED
1. Section 1955 reads as follows:
"(a) Whoever conducts, finances, manages, supervises, directs, or owns
all or part of an illegal gambling business shall be fined under this title
or imprisoned not more than five years, or both.
(b) As used in this section----
(1) 'illegal gambling business' means a gambling business which----
(i) is a violation of the law of a State or political subdivision in
which it is conducted;
(ii) involves five or more persons who conduct, finance, manage, supervise,
direct, or own all or part of such business; and
(iii) has been or remains in substantially continuous operation for
a period in excess of thirty days or has a gross revenue of $2,000 in any
single day."
2. The indictment alleged that "[appellants'] illegal gambling business
involv[ed] bookmaking, in violation of the laws of the State of Texas (Title
10, Texas Penal Code, Chapter 47) . . . ."
3. Section 47.03, Gambling Promotion, reads as follows:
"(a) A person commits an offense if he intentionally or knowingly does
any of the following acts:
(1) operates or participates in the earnings of a gambling place;
(2) engages in bookmaking;
(3) for gain, becomes a custodian of anything of value bet or offered
to be bet;
(4) sells chances on the partial or final result of or on the margin
of victory in any game or contest or on the performance of any participant
in any game or contest or on the result of any political nomination, appointment,
or election or on the degree of success of any nominee, appointee, or candidate;
or
(5) for gain, sets up or promotes any lottery or sells or offers to
sell or knowingly possesses for transfer, or transfers any card, stub,
ticket, check, or other device designed to serve as evidence of participation
in any lottery." Tex. Penal Code § 47.03(a) (emphasis added).
4. So also, perhaps, if these lines had no other purpose. But they
clearly had other purposes----including to give information on the offshore
betting and to establish credit.
5. The jury seems to have been confused about whether accepting money
for future betting constitutes "betting" under Texas law. During deliberations,
the jury sent a note to the judge asking "[d]oes receiving money to facilitate
the placing of a wager (to be done at a future time) constitute a bet?"
The court did not answer this question, and responded "[t]he question you
have posed is addressed in the court's charge and you should look to the
charge, considering my instructions as a whole, for the answer." This response
was inadequate, as the subject matter of the question was not directly
or expressly addressed in the charge, and could not have cleared up the
jurors' confusion. See United States v. Stevens, 38 F.3d 167 (5th Cir.
1994). The court should then have clearly instructed that Texas law has
broken gambling down into two separate offenses: bookmaking (as defined
in the instructions) and for gain becoming a custodian of anything of value
bet or offered to be bet, or at the very least the court should have answered
"No," as appellants requested below.
The court's instruction in response to the question was inadequate
and would require reversal were we not in any event reversing the case
because of insufficient evidence.
6. Under the allegations of the indictment, the basis on which the
government tried the case and the charge, the conspiracy ultimately depended
on the theory that what was done----and there is no showing or claim that
anything else was contemplated or agreed----constituted bookmaking in Texas
contrary to sections 47.01(2) and 47.03(a)(2).
LEGAL OPINIONS:
From John Crigler of Haley Bader and Potts.....
Like most criminal cases, this case turns on questions of evidence. The government initially won convictions against four defendants based upon allegations that they had violated a Texas bookmaking statute. Defendants were also convicted of conspiracy, money laundering and other counts related to the furtherance of an illegal activity. The evidence showed that the defendants had been involved in an international sports wagering service in which bets were accepted by operations licensed by the Dominican Republic or Jamaica. A Dallas office operated by defendants accepted money and paid out gaming proceeds.
The Fifth Circuit Court of Appeals reversed the convictions on grounds that the government had not proven the defendants actually engaged in "bookmaking" as defined by Texas law. Specifically, there was no evidence, other than circumstantial evidence, that bets were received, recorded, or forwarded inTexas. Indeed, there was contrary evidence to show that such bets were placed offshore where such betting was legal. The conspiracy and other ancillary convictions collapsed with the collapse of the bookmaking convictions.
Technically, the case is interesting because it shows the importance of framing a case well and proving all the elements of a crime alleged. The Court of Appeals not only finds that the government fails to prove an essential element of bookmaking -- the actual receiving of bets -- but that it might have obtained convictions for other gambling-related crimes (such as being a custodian of money wagered) which it failed to plead.
In broader terms, the case is interesting because it respects the gambling laws of other countries and refuses to impute an illegal purpose to activities which were legal where conducted, even when they are part of a larger enterprise that would be illegal if conducted entirely within the United States.
It is also notable that no count was brought under the Wire Act, even though the offshore betting operation apparently attracted a volume of bets placed by phone from the United States. I suspect that the government thought it had such a strong case on the bookmaking charge -- it seized almost half million dollars in cashiers chcks and Western Union receipts -- that it did not consider a Wire Act count necessary. A Wire Act Count would also have directly raised the conflict between U. S. law, which criminalizes sports bookmaking by phone -- and the law of Jamaica and the Dominican Republic -- which licenses the activity. The government may have prefered not to have that issue answered than to risk having it answered in a manner adverse to its case.