People of Michigan v. Susan Hernandez-Zitka
People of Michigan v. Susan Hernandez-Zitka
Opinion
*40 At issue in these consolidated appeals are the charges brought against each defendant *699 for three counts of conducting a gambling operation without a license, MCL 432.218(1)(a), and three counts of using a *41 computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e). After conducting a preliminary examination, the district court found that probable cause existed to bind over defendants, Bruce H. Zitka and Susan Hernandez-Zitka, to the circuit court. The circuit court, however, entered orders granting defendants' motions to quash the amended information and dismissing all charges. The prosecution appeals as of right, and we reverse and remand for further proceedings.
I. FACTUAL BACKGROUND
Defendants own and operate three Internet lounges located in Muskegon County: The Landing Strip, The Lucky Mouse, and Fast Lane. At these establishments, customers can open accounts to wager on and play games online, including slot and lottery-type games. On April 14, 2015, the Michigan Gaming Control Board (MGCB) began an investigation to determine whether illegal gambling activities were taking place at the lounges. The MGCB interrupted this investigation, however, when the Norton Shores Police Department began its own independent investigation of allegations that unlawful gambling activities were taking place at The Landing Strip. The city attorney for Norton Shores subsequently filed in the Muskegon Circuit Court a civil-nuisance-abatement action against The Landing Strip under the local zoning code. The parties ultimately agreed to dismissal of that case, and the court entered a stipulated order of dismissal on January 28, 2016, stating in part, "Defendants agree to operate the Landing Strip LLC without violation of any applicable gambling laws or ordinances as it is currently operating ." 1 (Emphasis added.)
*42 Following the conclusion of the civil lawsuit, the MGCB resumed its investigation of the three lounges in February 2016. As a result of this investigation, defendants were each charged with three counts of conducting a gambling operation without a license, MCL 432.218(1)(a), and three counts of using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e). The amended information alleges an offense period extending from February 1, 2016, through October 31, 2016. The district court conducted a two-day preliminary examination and, on January 27, 2017, issued an opinion and order determining that probable cause supported the charges and binding over the cases to the Ingham Circuit Court. In reaching this conclusion, the district court determined that the offense of using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e), is a specific-intent crime, while conducting a gambling operation without a license, MCL 432.218(1)(a), constitutes a general intent crime. With respect to the Muskegon County Circuit Court's stipulated order of dismissal, the district court was "not persuaded that the ... [order], in a civil proceeding, is particularly helpful here in relation to the probable cause standard."
In the Ingham Circuit Court, defendants filed identical motions to quash, arguing that the district court erred by determining that the offense of conducting a gambling operation without a license was a general-intent crime as opposed to a specific-intent crime. Defendants further asserted that because the stipulated order *700 dismissing the civil case reflected a judicial determination that defendants were operating legally, *43 defendants were acting under a mistake of law that negated the mens rea elements of both offenses. The circuit court granted defendants' motions to quash and stated on the record as follows:
My opinion is based upon the fact that the Attorney General of this state, in part, has the authority to intervene in any litigation that they want to that would be something that relates to state law, I believe they could have gone back to the circuit judge in this case and asked to intervene and have this reargued in some fashion as to its applicability.
This appears to be a situation where apparently the Attorney General's office and their other agencies were so aggrieved by these poor people that they felt it necessary to investigate for months and months as to whether they existed. They could have walked right in and seen. But in my opinion, when a circuit judge of-is it Muskegon?
* * *
...[The Muskegon Circuit Court judge] has the right to make these rulings and put these rulings in effect. But as I have seen in my cases, I have been chastised. I have been appealed. I have even had people come in here and consent to things and your office appealed that because the consent was wrong. I am just amazed. These cases are dismissed.
II. STANDARD OF REVIEW
A trial court's decision regarding a motion to quash an information is reviewed for an abuse of discretion.
People v. Miller
,
III. DISCUSSION
A. COLLATERAL ESTOPPEL
The prosecution contends that the circuit court abused its discretion by determining that the charges brought against defendants were barred pursuant to collateral estoppel in light of the stipulated order of dismissal in the civil case. We agree.
The doctrine of collateral estoppel generally precludes relitigation of an issue in a subsequent proceeding when that issue has previously been the subject of a final judgment in an earlier proceeding.
Porter v. Royal Oak
,
*701
In the vast majority of cases, parties seek to apply collateral estoppel in the context of two civil proceedings. However, our Supreme Court has recognized the
*45
concept of "cross-over estoppel," i.e., "the application of collateral estoppel in the civil-to-criminal context."
People v. Trakhtenberg
,
The first prong of the collateral estoppel analysis requires that the ultimate issue to be determined in the subsequent action be the same as that involved in the first action.
Rental Props. Owners Ass'n of Kent Co. v. Kent Co.Treasurer
,
Under the present circumstances, the previous civil litigation initiated by the Norton Shores city attorney in the Muskegon Circuit Court concerned defendants' compliance with local zoning laws in operating The Landing Strip. Accordingly, the legality of defendants' operations *46 under the state criminal laws was not at issue, nor was their operation of The Lucky Mouse or Fast Lane. Further, no issue in the civil litigation was submitted to or determined by the factfinder; rather, the parties negotiated and stipulated to dismissal of the action. The stipulated order stated, in part, that "[d]efendants agree to operate the Landing Strip LLC without violation of any applicable gambling laws or ordinances as it is currently operating ." (Emphasis added). But because the scope of the civil action was limited to defendants' compliance with local ordinances in their operation of The Landing Strip, the interpretation of this provision must be similarly confined. Accordingly, we conclude that the issue whether defendants violated state criminal laws by conducting an unlicensed gambling operation was not actually litigated in the civil proceeding.
For collateral estoppel to apply, it is also required that the same parties, or parties in privy, had a full and fair opportunity to litigate the issue.
Monat
,
Further, our Supreme Court has declined to apply collateral estoppel in instances when the purposes of the two proceedings are "so fundamentally different that application ... of collateral estoppel would be contrary to sound public policy." See
Gates
,
B. MENS REA
The prosecution next contends that conducting an unlicensed gambling operation, MCL 432.218(1)(a), is
*48
a strict-liability offense as opposed to a general-intent offense as determined by the district court. This argument is relevant to the grounds underlying defendants' motion to quash. The essence of defendants' argument in that motion was that-like the offense of using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(e) -conducting an unlicensed gambling operation is a specific-intent offense and that defendants'
mens rea
for both charges was negated by a mistake of law. Because the circuit court did not rule on the merits of this position, it is unpreserved. See
People v. Metamora Water Serv., Inc.
,
To determine the intent element required to commit a criminal offense, this Court must evaluate the mental state set forth in the relevant statute.
People v. Fennell
,
(1) A person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $100,00.00, or both, and shall be barred from receiving or maintaining a license for doing any of the following:
*49 (a) Conducting a gambling operation where wagering is used or to be used without a license issued by the [MGCB].
This language does not expressly indicate a degree of intent, nor does the statute further define the term "conducting." Therefore, the mens rea required to violate MCL 432.218(1)(a) is a matter of statutory interpretation.
When interpreting the meaning of a statute, the Court's primary goal is "to ascertain and give effect to the intent of the Legislature."
People v. Thomas
,
Though MCL 432.218(1)(a) is silent with respect to intent, there is no clear indication that the Legislature sought to discard the
mens rea
requirement. See
People v. Kowalski
,
MCL 432.218(1)(a) does not contain an express or implied indication that the Legislature intended that strict criminal liability be imposed. As in
Kowalski
, the statute's use of the term "conducting" evidences an intention that the
mens rea
element of MCL 432.218(1)(a) be the intent to perform the act of "conducting." Although the prosecution correctly argues that "the presumption in favor of imposing criminal intent as an element does not invariably apply to public-welfare or regulatory offenses,"
People v. Janes
,
The language of MCL 432.218(1)(a) is consistent with that of a general-intent crime as opposed to a specific-intent crime. As noted, Subdivisions (c) through (e) of MCL MCL 432.218(1) include express elements
*51
of specific intent, such as "knowingly" and "willfully," thus requiring criminal intent beyond the physical act done. See
People v. Gould
,
C. MISTAKE OF LAW
Finally, defendants argued in their motion to quash that they were operating under a mistake of law, negating the specific intent they claimed was required under the offenses charged. Specifically, they maintain that they relied on the Norton Shores city attorney's agreement in the stipulated order of dismissal that The Landing Strip would be operated in compliance with any gambling laws or ordinances "as it [was] currently operating." While defendants characterize this argument as a mistake-of-law defense, the prosecution contends it is properly viewed as a theory of entrapment by estoppel. Under either of these two fundamentally similar analyses, we conclude that defendants' argument fails.
This Court has held that a defense of entrapment by estoppel applies when the defendant establishes by a preponderance of the evidence that
(1) a government official (2) told the defendant that certain criminal conduct was legal, (3) the defendant *52 actually relied on the government official's statements, (4) and the defendant's reliance was in good faith and reasonable in light of the identity of the government official, the point of law represented, and the substance of the official's statement. [ People v. Woods ,241 Mich. App. 545 , 558,616 N.W.2d 211 (2000), quoting United States v. West Indies Transp., Inc. ,127 F.3d 299 , 313 (C.A. 3 1997) (quotation marks omitted).]
Similarly, defendants cite federal caselaw describing the mistake-of-law defense: " 'In order to assert a defense of a mistake of law based upon a good faith reliance on the representations of public officials, the Appellants must demonstrate that they received communications from public officials in a situation in which reliance would have been justified.' "
United States v. Stagman
,
Initially, we note that defendants' mistake-of-law argument has no effect on the charges brought under MCL 432.218(1)(a) because we have determined this is a general-intent offense. Defendants therefore need not have intended to violate the law but rather simply have intended to perform the act of "conducting" an unlicensed gambling operation. See
People v. Beaudin
,
Defendants' argument is equally unavailing with respect to the specific-intent charges brought under MCL 752.796 and MCL 752.797(3)(e). Entrapment by estoppel and mistake-of-law defenses both require that the alleged reliance on a public official's representation be "reasonable" or "justified." Defendants are unable to *53 meet this requirement. They claim reliance on the Norton Shores city attorney's agreement in the stipulated order that operations at The Landing Strip were in compliance with applicable gambling laws and ordinances. It cannot be said that a statement by a city attorney in a civil suit involving a local ordinance could be authoritative on a matter of criminal state law such that reliance on it was reasonable. The statement was not made by the attorney general's office, by the MGCB, or by a county prosecutor. Rather, it was made pursuant to a stipulated agreement regarding a civil suit made by an entity with limited authority. Additionally, the civil case involved only The Landing Strip and not the other two businesses involved in the present criminal actions. Although defendants imply that all three establishments operated in the same manner, it does not appear that all were within the city limits of Norton Shores or that the city attorney would have possessed knowledge regarding the operations in the other two establishments. For these reasons, we conclude that neither a mistake-of-law nor an entrapment-by-estoppel defense is applicable.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Meter, P.J., and Tukel, J., concurred with Gadola, J.
Although this provision of the stipulated order was referred to in the Ingham Circuit Court in the present action and in the parties' briefs on appeal, the Muskegon Circuit Court record is not part of the record before this Court. However, the parties do not dispute the nature of the civil case or the contents of the relevant provision of the stipulated order.
In re Certified Question involved the interpretation of MCL 14.28, which grants the attorney general the authority to represent and intervene in actions on behalf of the state, as supplemented by the authority granted in MCL 14.101.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.