[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 16-15451; 16-15609

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D.C. Docket No. 3:16-cr-00017-MCR-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellant - Cross Appellee,

versus

LARRY L. MASINO, 

 Defendant - Appellee - Cross Appellant,

DIXIE L. MASINO, 

 Defendant - Appellee.

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Appeals from the United States District Court

for the Northern District of Florida

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(September 7, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and 

MOORE,* District Judge.

WILLIAM PRYOR, Circuit Judge:

 * Honorable K. Michael Moore, United States District Chief Judge for the Southern District of 

Florida, sitting by designation. 

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We must decide whether an indictment that alleges that a business was in 

violation of the Florida bingo and gambling house statutes, Fla. Stat. §§ 849.01, 

849.02, 849.03, 849.0931, sufficiently alleges one of the essential elements needed 

to obtain a conviction under the federal gambling statute: that the business “is a 

violation of” state law, 18 U.S.C. § 1955(b)(1)(i). Larry Masino and his ex-wife 

Dixie Masino own a Florida business called Racetrack Bingo Inc. Although 

Florida law generally prohibits gambling, it allows bingo to be conducted under

stringent regulations. See Fla. Stat. § 849.0931. The government alleges a scheme 

in which the Masinos, through Racetrack Bingo, operated illegal bingo games on 

behalf of several charities, defrauded those charities as to the legality of their 

operation, charged the charities unlawfully excessive fees, and then laundered the

profits. Count Two of the indictment charges the Masinos with violating the 

federal gambling statute, 18 U.S.C. § 1955. To establish a violation of that statute, 

the government must prove, among other things, that the business is an “illegal 

gambling business,” which in turn requires proof that the business “is a violation” 

of state law, id. § 1955(b)(1)(i). The district court dismissed part of Count Two on 

the ground that a violation of the Florida bingo statute could never convert a bingo 

business into an illegal gambling business. The government appealed, and Larry 

Masino filed a cross-appeal. Because we decline to exercise pendent appellate 

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jurisdiction over Larry Masino’s interlocutory cross-appeal, we dismiss the crossappeal. And because a gambling business that violates the Florida bingo statute, 

Fla. Stat. § 849.0931, could be “a gambling business which is a violation of the law

of a State,” 18 U.S.C. § 1955(b)(1)(i), we reverse the dismissal of the indictment 

and remand. 

I. BACKGROUND

Former spouses Larry and Dixie Masino and their children own Racetrack 

Bingo Inc., a Florida corporation that conducted bingo games on behalf of several 

charities in Fort Walton Beach, Florida. Each charity sponsored two bingo sessions 

a week. The charities collectively formed Ft. Walton Beach Charities LLC to 

manage and distribute proceeds of the bingo games. At the direction of the 

Masinos, each charity entered into annual lease agreements with Racetrack Bingo. 

The leases provided that Beach Charities would pay Racetrack Bingo a fee that 

ranged from $1,050 to $1,770 a bingo session. The lease fee did not cover 

electronic bingo equipment rental, paper bingo supplies, bank fees, and set up and 

cleanup costs.

In February 2016, a federal grand jury returned a 41-count indictment 

against Larry and Dixie Masino for conspiracy to commit wire fraud, operating an 

illegal gambling business, conspiracy to commit money laundering, and money 

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laundering. 18 U.S.C. §§ 1343, 1349, 1955, 1956(h), 1957. In June 2016, a federal 

grand jury returned a superseding indictment that added predicate offenses to 

Count Two, operating an illegal gambling business. Count Two states as follows: 

Between on or about January 1, 2006, and on or about July 31, 2015, 

in the Northern District of Florida, the defendants,

Larry L. Masino and Dixie L. Masino, 

did conduct, manage, supervise, direct, and own all or part of an 

illegal gambling business, to wit, a gambling business involving bingo 

games called Racetrack Bingo Inc., which business was in violation of 

the laws of the State of Florida, to wit, Florida Statutes, Sections 

849.01, 849.02, 849.03, and 849.0931, and which involved five or 

more persons who conducted, managed, supervised, directed, and 

owned all or part of said illegal gambling business, and which 

remained in substantially continuous operation for a period in excess 

of 30 days, and which had a gross revenue of $2,000 in any single 

day. 

In violation of Title 18, United States Code, Sections 1955 and 2. 

The prosecution proceeded under the theory that the Masinos “defrauded the 

charities by falsely representing that they were operating [Racetrack Bingo] in 

compliance with Florida law. Instead, [they] falsely inflated the amount charged 

for rent and expenses so [they] could unlawfully retain bingo proceeds that were 

otherwise supposed to go to the charities.” The Masinos then “conspired to launder 

and did launder the proceeds of their fraud and illegal gambling operation.” The 

government suggested that “the amount ordered in restitution, forfeiture, and any 

money judgment [could] exceed approximately $5.8 million.”

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Larry and Dixie Masino moved to dismiss Count Two of the indictment, 

Fed. R. Crim. P. 12(b)(3)(B). The district court initially granted the motion to 

dismiss Count Two in its entirety because it determined that “bingo offenses are 

not a form of illegal gambling under Florida law, and therefore, a violation of the 

Florida Bingo statute may not serve as a predicate offense for purposes of the 

Federal Gambling statute.” But the district court later vacated that order and 

instead granted in part and denied in part the Masinos’ motion to dismiss Count 

Two. The district court explained, “Given that the Florida Legislature plainly 

expressed its intent by including offenses chargeable under the Bingo Statute as 

forms of ‘racketeering activity’ under the 2013 amendment to Florida’s 

[Racketeering Act], it necessarily follows that a violation of the Bingo Statute now 

constitutes an ‘illegal gambling business’ in violation of Florida law for purposes 

of the [federal gambling statute].” The district court dismissed Count Two to the 

extent it charged a violation based on bingo activities that occurred before the 

amendment to Florida’s Racketeering Act, which occurred on April 10, 2013. The 

district court concluded that the indictment failed to charge the essential element 

that Racetrack Bingo was an “illegal gambling business” because no violation of 

the Florida bingo statute could convert a bingo company into an illegal gambling 

business.

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The government appealed the partial dismissal of Count Two, 18 U.S.C. 

§ 3731. Larry Masino cross-appealed on the ground that the district court should 

have dismissed Count Two in its entirety. Dixie Masino did not file a cross-appeal.

After we asked the parties to address the basis for our jurisdiction over the crossappeal, the government argued that we lack jurisdiction over a cross-appeal of a 

denial of a motion to dismiss an indictment. We construed this response as a 

motion to dismiss the cross-appeal and carried that motion with the case.

II. STANDARD OF REVIEW

We review the legal sufficiency of the allegations in an indictment de novo. 

United States v. York, 428 F.3d 1325, 1331 n.8 (11th Cir. 2005).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that even if we have 

the authority to exercise pendent appellate jurisdiction when the government 

appeals from the dismissal of an indictment, 18 U.S.C. § 3731, we decline to 

exercise that jurisdiction over the cross-appeal. Second, we explain that Count Two 

of the indictment is legally sufficient because there are at least some violations of 

the Florida bingo statute, Fla. Stat. § 849.0931, that could make Racetrack Bingo 

an “illegal gambling business” under federal law, 18 U.S.C. § 1955. 

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A. We Decline to Exercise Pendant Jurisdiction over Larry Masino’s CrossAppeal.

Ordinarily, we cannot review a criminal case “until conviction and 

imposition of sentence.” Flanagan v. United States, 465 U.S. 259, 263 (1984); see 

28 U.S.C. § 1291. But there is a statutory exception for “an appeal by the United 

States . . . from a[n] . . . order of a district court dismissing an indictment.” 18 

U.S.C. § 3731. And the doctrine of pendent appellate jurisdiction allows a federal 

court to “address nonappealable orders if they are ‘inextricably intertwined’ with 

an appealable decision or if ‘review of the former decision [is] necessary to ensure 

meaningful review of the latter.’” Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 

1326, 1335 (11th Cir. 1999) (alteration in original) (quoting Swint v. Chambers 

Cty. Comm’n, 514 U.S. 35, 51 (1995)).

Larry Masino argues that his cross-appeal is inextricably intertwined with 

the order the government appeals, but even if we have jurisdiction over that crossappeal, we decline to exercise it. See, e.g., Hartley v. Parnell, 193 F.3d 1263, 1272 

(11th Cir. 1999) (“To the extent we have discretionary pendent appellate 

jurisdiction . . . , we decline to exercise that jurisdiction.” (citation omitted)). We 

will instead address only the appeal filed by the government. 

B. Count Two of the Indictment Is Legally Sufficient To State an Offense.

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Congress passed the Organized Crime Control Act of 1970, Pub. L. No. 91-

452, 84 Stat. 922, to address a major source of money and power for organized 

crime—gambling. See United States v. Harris, 460 F.2d 1041, 1045 (5th Cir. 

1972). The Act prohibits substantial and continuous illegal gambling businesses: 

(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.

. . .

(4) “gambling” includes but is not limited to pool-selling, 

bookmaking, maintaining slot machines, roulette wheels 

or dice tables, and conducting lotteries, policy, bolita or 

numbers games, or selling chances therein.

18 U.S.C. § 1955. 

The government argues that Count Two of the indictment sufficiently 

alleges that Racetrack Bingo is an “illegal gambling business.” “An indictment is 

sufficient if it: ‘(1) presents the essential elements of the charged offense, (2) 

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notifies the accused of the charges to be defended against, and (3) enables the 

accused to rely upon a judgment under the indictment as a bar against double 

jeopardy for any subsequent prosecution for the same offense.’” United States v. 

Lang, 732 F.3d 1246, 1247 (11th Cir. 2013) (quoting United States v. Dabbs, 134 

F.3d 1071, 1079 (11th Cir. 1998)). The district court ruled that a violation of 

Florida law could not convert a gambling business into an illegal gambling 

business, so the indictment failed to state the essential element about state law 

required to prove Count Two. No party argues about either of the two other 

elements of sufficiency, so our inquiry is limited to deciding whether the 

indictment presents the essential element about state law. We agree with the 

government that the indictment is sufficient because at least some violations of the 

Florida bingo statute, Fla. Stat. § 849.0931, which the indictment cites, could make 

Racetrack Bingo an “illegal gambling business,” 18 U.S.C. § 1955. 

Bingo is a form of gambling. Federal law defines the term “gambling,” id. 

§ 1955(b)(4), and then defers to state law to determine which gambling businesses 

are illegal, id. § 1955(b)(1)(i). States may decide what conduct is illegal, but states 

may not redefine “gambling.” Cf. United States v. One Single Family Residence 

Located at 18755 N. Bay Rd., Miami, 13 F.3d 1493, 1497 (11th Cir. 1994) 

(“Section 1955 ‘borrows’ state law only for the limited purpose of defining the 

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conduct that is prohibited as illegal gambling. Incorporation of state law for other 

purposes has been rejected . . . .” (emphasis omitted)). Gambling “includes but is 

not limited to pool-selling, bookmaking, maintaining slot machines, roulette 

wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or 

selling chances therein.” 18 U.S.C. § 1955(b)(4). And bingo is an activity where 

“participants pay a sum of money for the use of . . . cards[,] . . . numbers are drawn 

by chance, . . . [and a] player calls out ‘bingo’ and is declared the winner of a 

predetermined prize.” Fla. Stat. § 849.0931(1)(a). Selling chances in a numbers 

game is classically gambling, and the list of examples defining gambling is not 

exhaustive. The federal gambling statute also excludes bingo games conducted by 

a nonprofit organization, 18 U.S.C. § 1955(e), an unnecessary exception if bingo is 

not gambling. Because bingo is gambling, and because Racetrack Bingo is a bingo 

business, Racetrack Bingo is a gambling business.

The question remains whether the indictment alleges that Racetrack Bingo is 

an illegal gambling business: “a gambling business which is a violation of the law 

of [Florida].” Id. § 1955(b)(1)(i). Answering this question depends on what the 

meaning of the word “is” is. The federal gambling statute applies only to a

gambling business that “is a violation of the law,” 18 U.S.C. § 1955(b)(1)(i) 

(emphasis added), not to a gambling business that “is in violation of” or “has 

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violated the law.” We have stated that “Section 1955 defines an illegal gambling 

business as one that . . . operates in violation of state law,” United States v. Miller, 

22 F.3d 1075, 1077 (11th Cir. 1994), but this dictum paraphrases the elements of 

the statute and is imprecise. That a business violates state law is necessary, but not 

sufficient, for that business to be illegal. As the Eighth Circuit explained, “The 

word ‘is’ strongly suggests that the government must prove more than a violation 

of some state law by a gambling business. The gambling business itself must be 

illegal.” United States v. Bala, 489 F.3d 334, 340–41 (8th Cir. 2007). 

The Supreme Court has held that “[t]he allowable unit of prosecution under 

§ 1955 is defined as participation in a single ‘illegal gambling business.’ Congress 

did not . . . define discrete acts of gambling as independent federal offenses.” 

Sanabria v. United States, 437 U.S. 54, 70 (1978). “[T]he essence of the crime 

created by Congress is participation in a ‘business.’” Id. That the unit of 

prosecution is a single gambling business also suggests that the violation of state 

law must be about the existence and nature of the business itself, not a single

illegal action. 

The unit of prosecution defined by section 1955 may sometimes require 

difficult line-drawing. When gambling is squarely banned under state law, it is not 

difficult to conclude that a gambling business is illegal. In contrast, when “the core 

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gambling activity was specifically authorized by state law but the manner in which 

[the] defendant conducted that activity violated some aspect of state law,” we must 

“identify those . . . violations of state law that turn a legal gambling business into 

an ‘illegal gambling business’ that is itself a violation of state law.” Bala, 489 F.3d 

at 340. Because all of the statutes charged in the indictment are criminal and 

related to gambling, we do not have to resolve whether a gambling business might 

be “illegal” because it operates without official grant of authority (e.g., an 

“underground” Las Vegas casino that lacks a business license and never pays 

taxes). Nevertheless, “it may be difficult in some cases to determine when a 

[criminal,] gambling-related violation is sufficient to make a legal gambling 

business illegal for purposes of § 1955.” Id. at 341. But “the text of the statute 

. . . require[s] that the line be drawn.” Id. 

This appeal does not require that we resolve every hypothetical difficulty in 

deciding what makes a gambling business illegal because there are at least some 

violations of the Florida bingo statute, Fla. Stat. § 849.0931, that may make 

Racetrack Bingo “illegal.” The indictment alleges that Racetrack Bingo was an 

“illegal gambling business”; it does not allege an incidental illegal act by an 

otherwise legal business. The Florida bingo statute states that charitable 

organizations may conduct bingo games “provided the entire proceeds derived 

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from the conduct of such games, less actual business expenses . . . , are donated by 

such organizations.” Id. § 849.0931(2)(a). The charitable organizations may “only 

be directly involved” and may not “serve as a sponsor of a bingo game . . . 

conducted by another.” Id. § 849.09319(2)(b). For a non-charitable organization, 

“its right to conduct bingo games . . . is conditioned upon the return of all the 

proceeds from such games to the players in the form of prizes.” Id. § 849.0931(3)

(emphasis added). If, for example, the government can prove that Racetrack Bingo 

illegally allows charities to sponsor bingo games without their direct involvement

or that Racetrack Bingo forfeits its right to conduct bingo by not returning all of 

the proceeds from those games to the players, then a jury could find that Racetrack 

Bingo is an illegal gambling business. 

It is a harder question whether Racetrack Bingo is an illegal gambling 

business if it violates only the more detailed rules on topics such as the number of 

days a week an organization may conduct bingo, the location of the games, or the 

rental rates charged to lease property where bingo is conducted. See id. 

§ 849.0931(5)–(13). But at the indictment stage, we need not decide whether every 

possible violation of the Florida bingo statute can support federal prosecution 

under the Act. The district court ruled only that a violation of the Florida bingo 

statute before 2013 could never convert a business into an illegal gambling 

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business, and we decide only that there are at least some violations of the bingo 

statute that could make Racetrack Bingo an illegal gambling business. The 

Masinos have not filed a motion for a bill of particulars on the ground that the 

indictment provided them insufficient notice. See United States v. Davis, 854 F.3d 

1276, 1293 (explaining that “[t]he purpose of a bill of particulars is ‘to inform the 

defendant of the charge against him with sufficient precision to allow him to 

prepare his defense, to minimize surprise at trial, and to enable him to plead double 

jeopardy in the event of a later prosecution for the same offense’” (quoting United 

States v. Warren, 772 F.2d 827, 837 (11th Cir. 1985))). And the government will 

bear the burden to prove at trial that Racetrack Bingo is an illegal gambling 

business under Florida law.

As the parties acknowledge, whether a violation of the bingo statute may 

serve as a predicate offense for the Florida Racketeering Act is irrelevant to this

appeal. In 1998, the Florida Supreme Court held that violations of the bingo statute 

were not punishable under the state lottery or racketeering statutes because the 

bingo statute had its own separate system of criminal penalties. Dep’t of Legal 

Affairs v. Bradenton Grp., Inc., 727 So. 2d 199, 202 (Fla. 1998). On remand, 

Florida attempted to evade this holding by using the federal gambling statute to 

transform a violation of the bingo statute into a racketeering violation. The Florida 

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District Court of Appeal held that this argument was barred by collateral estoppel

and that, in any event, the government could not use the federal statute to 

circumvent the state statutes. Brandenton Grp., Inc. v. State, 970 So. 2d 403, 408–

11 (Fla. Dist. Ct. App. 2007). In 2013, the Florida legislature amended its 

Racketeering Act to allow violations of the bingo statute to count as 

“[r]acketeering activity.” See Fla. Stat. § 895.02(8)(a)(45). The district court 

reasoned that this change in the law meant that only violations of the Florida bingo 

statute that occurred after the amendment could constitute an illegal gambling 

business for purposes of the federal gambling statute. But whether a violation of 

the bingo statute is a predicate offense for the Florida Racketeering Act and 

whether a violation of the bingo statute makes an otherwise legal gambling 

business into an illegal gambling business for purposes of the federal gambling 

statute are separate questions. Violations of the bingo statute could make a 

business illegal regardless of whether those violations also support a state 

racketeering prosecution. The district court erred when it drew a distinction 

between bingo offenses committed before and after the amendment to the Florida 

Racketeering Act.

Because a violation of the Florida bingo statute could satisfy the essential 

element about state law required to prove Count Two, we need not address Florida 

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gambling house statutes as a basis for upholding the indictment. See Fla. Stat. 

§§ 849.01, 849.02, 849.03 (prohibiting individuals, their agents, and their lessors, 

from “keep[ing], exercis[ing] or maintain[ing] a gaming table or room” or 

“suffer[ing] or permit[ting] any person to play for money or other valuable thing at 

any game whatever.”); see also Brandenton, 727 So. 2d at 201–02 (explaining that 

violations of the bingo statute are punishable by the bingo statute, not other 

gambling statutes). The bingo statute provides at least some violations that would 

make a gambling business illegal. As a result, the indictment stated the essential 

element about state law. 

IV. CONCLUSION

We DISMISS the cross-appeal for lack of jurisdiction. We REVERSE the 

order dismissing part of Count Two of the indictment and REMAND for further 

proceedings. 

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