Just so we all don't give the folks that have not used markers before the wrong idea, I think that it does need to be stated that in essence when you are gambling with markers you are actually gambling on borrowed money. Money that you just went in debt to get...
Here is a purdy good article that goes into a little more detail and also the impact that Gambling Markers can play on ones economic future. It's a little long but well worth the read:
A convenience for some, and a nightmare for others
By CHRIS DI EDOARDO
With the stroke of a pen, the flash of a driver's license and proof of a bank account, a gambler can receive thousands of dollars in casino credit from a smiling host. Thanks to a December ruling by the Nevada Supreme Court, those players who fail to cover the markers may also be signing away their freedom, their right to a "fresh start" in bankruptcy and even their ability to visit or remain in the United States.
The Nevada Supreme Court's decision in Nguyen v. State of Nevada is the latest, and possibly final, stage in a legal campaign launched 128 years ago to subject those who default on their gambling debts to civil and criminal prosecution.
The saga began in 1872, when the state Supreme Court declared in Scott v. Courtney that gambling debts were unenforceable. Although the Legislature changed that in the early 1990s, gaming corporations still faced the challenge of collecting sizable amounts of cash from players who lived out of state.
"You used to call them and work things out," said Michael Gaughan, owner of the Gold Coast and Barbary Coast casinos. "If a guy didn't want to pay his marker, you just cut them off.
"I usually collected most of my markers, and I don't think I ever sued anybody on a marker."
One former gaming insider noted, "The goal always was to get the player back. ...
"You'd block him at Central Credit to make sure he didn't get credit anywhere else and then you'd go the other way. You'd sweet-talk him and say, 'If you come out here again, we'll comp you,' and so on."
About a decade ago, most casinos restructured their markers as "counter checks" and added language informing patrons the draft would be charged against their bank accounts if not repaid. While this was apparently done to make it easier for the casino to write off dud markers as bad debts, it set the stage for the 1995 decision of the Clark County district attorney's office to criminally prosecute those who didn't pay their markers.
"When I was campaigning in 1994, bad checks and the fact that law enforcement did nothing about them was the biggest issue for the small-business community, not for banks and casinos," said District Attorney Stewart Bell. "To a small beauty shop, several bad checks for $300 in a month can break it."
Still, when the gaming industry asked to be included, Bell didn't turn them away.
"We started it for small businesses, but the law applies to everybody," he said.
The unit began with two employees. "We wanted to do it in a way that takes police out of the loop," Bell said. "They certainly have more important things to do with the violent criminals out there."
Under the program, "If you write a bad check and you're a first offender, we give you the opportunity to make restitution, pay an official fee, which is set by statute, and send you to 'Don't Write Bad Checks Anymore' school, which costs about $50," Bell said. If the offender agrees, charges are dropped. If not, or if the accused is a serial bad-check writer, the case proceeds to trial.
"It's a win-win situation for everybody," Bell said, adding that his office handles between 3,000 and 5,000 bad checks and recovers about $1 million every month. According to the district attorney's office, about 90 to 95 percent of these checks are written for relatively small amounts to small businesses around the valley.
"If you're a big bank or casino and someone writes you a bad check for $10,000, you can hire a lawyer and go through the civil process," Bell said. "What do you do if you're a small business and you have a bad check for $500?"
As one-time Texan Tuan Ngoc Nguyen discovered, the bad-check law is also a potent collection instrument for those markers.
According to District Court records, Nguyen's troubles began in December 1995, when he signed $5,000 markers at both Harrah's Las Vegas and the Luxor, as well as a $2,500 marker at Excalibur.
Each marker contained the name and address of Nguyen's bank, his account number, the notation "Pay to the Order Of" and a guarantee Nguyen had sufficient funds on deposit to cover the marker. Nguyen left town without settling the debt.
To Deputy District Attorney Dan Ahlstrom, who leads the bad-check unit, the Nguyen case eliminates any doubt about whether the markers were checks.
In Nguyen's case the casinos attempted to obtain payment by mail, then tried to draw on Nguyen's bank, only to discover he had closed his account.
The casinos then referred the matter to Ahlstrom's office, which filed charges against Nguyen in 1996. He remained at large for 14 months before being apprehended in Los Angeles and extradited to Las Vegas, where he was charged with four felony counts of passing bad checks and seven counts of felony theft. He remained in custody from his initial arraignment on March 9, 1998, through June 2, 1999, when he was sentenced.
In June 1999, Nguyen pleaded guilty to one felony count of passing bad checks and agreed to pay $13,000 in restitution and $189 in fines. As a condition of probation, Nguyen is barred from entering any casino for the purposes of gambling. Pursuant to the plea agreement, Nguyen was permitted to challenge the applicability of the bad-check statute to those who defaulted on markers, which led to the state Supreme Court's decision in December.
However, Nguyen's case may not be over yet. Las Vegas attorney William McGimsey, who represented Nguyen in both District Court and the Supreme Court, has filed a petition asking the latter to reconsider. He declined further comment pending the outcome of that petition.
To Las Vegas attorney Robert L. Langford, who has represented a host of debtors in legal proceedings and pre-litigation negotiations with casinos over their markers, the issue isn't as cut-and-dried as Ahlstrom believes.
"I want the casinos to take that nifty little flier that (District Attorney) Stew Bell generated and put it in their packet, which they call a credit application, and tell these people who are writing these so-called checks that there are penalties if these checks are dishonored and they will turn them over to the DA, who will arrest them in their homes," Langford said. He was referring to the "Before You Write a Check, Read This" notice posted by retailers around Clark County. "The Nevada Supreme Court, for the first time in history, has created a debtor's prison."
Langford also said the unit's funding scheme undermines its moral authority. Bad-check writers who are prosecuted may be assessed special fees, set by statute, from $25 minimum to $500. For amounts over $10,000, the fee is 10 percent.
"If we are really righteous about the idea that people who do not pay markers are criminals, we should be willing to pay for prosecuting them," he said. "But Mr. Bell has taken the line that we are going to charge a surcharge so that the citizens of the state of Nevada don't have to pay for these prosecutions.
"I wonder how many taxpayers in Clark County would be willing to fund a DA's office which acts as a collection agency for the casinos."
Bell takes exception to that characterization.
"We're not a collection business, as some of the lawyers have suggested," he said. "The Legislature has said when I give you a check, I am impliedly stating that you can take that check to my bank and obtain cash money. If you can't do that, I have perpetrated a fraud upon you."
Bell said he wasn't surprised the practice was upheld, not only in Nguyen, but also by U.S. District Court Judge Philip M. Pro in Fleeger v. Bell.
In November 1997, Matthew Fleeger took out several markers at Caesars Palace. By April 1998, his debt topped $183,856. When the casino deposited several of the markers, they were returned because of insufficient funds.
Ahlstrom and Bell filed criminal charges and Fleeger was arrested in Texas. Fleeger responded by suing the casino, alleging it violated the federal Fair Debt Collection Practices Act. Relying on the Nevada Commercial Code and a Louisiana Court of Appeals case, Pro declared the markers to be "checks" and dismissed the suit.
To Los Angeles attorney Richard I. Fine, who represented Fleeger in federal court, Pro's decision was about as well reasoned as a system for picking keno winners.
"Judge Pro did not have any support of why a marker is a check," Fine said. "He looked at a Louisiana state case and the Nevada Commercial Code, but he didn't cite any federal case law determining whether the marker is a check.
"In contrast, in the federal system you have several cases which say a marker is not a check."
Unfortunately for Fleeger, none of the aforementioned federal cases from New Jersey, Arkansas and elsewhere are binding on Nevada judges. Additionally, the Supreme Court expressly adopted Pro's reasoning when it decided the Nguyen case, seemingly driving another nail into the coffin of the argument that markers are not checks.
"The more courts decide in our favor, the fewer times we'll have to face this challenge problem," Bell said. "Success breeds success, just like failure breeds failure."
Langford, who serves as Fine's co-counsel on the Fleeger case, has a different view, especially since Pro's ruling is currently before the 9th U.S. Circuit Court of Appeals in San Francisco.
"Am I shocked that a Nevada court gave its imprimatur to what Nevada gaming has done?" Langford said. "No, I am not.
"But let's see what a San Francisco court says."
If the 9th Circuit reverses Pro's ruling in Fleeger, it could reopen the Nguyen litigation and jeopardize the practice of filing criminal charges against those who default on their markers. On the other hand, if the duo roll craps before the court of appeal, their last recourse will be to petition the U.S. Supreme Court to take the case, something the high court is doing less and less frequently in recent years.
As Nguyen and Fleeger discovered, state lines or the fact that gambling may be illegal -- and gambling debts thus unenforceable -- in their home states, won't shield them from a Nevada prosecution.
"We haven't had any lack of cooperation from our sister agencies," Bell said. "They leave issues of Nevada law to Nevada."
Indeed, under federal law they have little choice.
"The U.S. Supreme Court has made it rather clear that California should not be looking into whether the charged crime in Nevada would be a crime in California," said Deputy District Attorney Bob Locke, the in-house extradition specialist at the San Diego County district attorney's office. "If the guy is a true fugitive, our governor wouldn't have discretion not to render him up."
While these rules apply in all 50 states, bringing back fugitives from other countries can be an exercise in frustration for state and federal prosecutors.
Even in those cases where a country has agreed, either by custom or by treaty, to extradite its nationals to stand trial in the United States, both state prosecutors and U.S. attorneys must comply with a host of procedural requirements that burn up time and resources.
Assuming their erstwhile customers don't run for the border, in the post-Nguyen environment casinos have more leverage over their debtors than any of the state's banks.
Under the U.S. Bankruptcy Code, the general rule is that if a creditor advances cash or credit to an individual and fails to secure his loan with a lien on the borrower's collateral, he risks being left out in the cold if the borrower files bankruptcy.
In contrast, "If (the debtor is) prosecuted criminally and there is a criminal fine or restitution imposed, that fine or restitution is not dischargeable," said Assistant U.S. Trustee Ronald Cundick. Nondischargeable debts are not wiped out by bankruptcy, so, by referring their claims to the district attorney, casinos place themselves in a much more likely position to be paid than other debtors.
To Langford, the mere threat of criminal prosecution is enough for some people to make good on the debt.
"I deal with people running mom and pop stores to international CEOs," he said. "The minute they sit in the DA's office they will attempt to pay the debt by hook or by crook.
"People will cash out their retirement, will impose upon their relatives to cash out their retirement and will do anything they can to avoid prison. I think that's damn sad."
Finally, thanks to several amendments to federal immigration laws in 1996, certain immigrants convicted of felony bad-check writing -- whether in connection with defaulting on their casino markers or not -- can lose their right to remain in the United States. A similar set of rules applies to tourists, who can be barred from re-entering the United States because of a felony conviction.
"You can't come to the U.S., commit a crime and go away scot-free," said Karen Kraushaar, a Washington, D.C., spokeswoman for the Immigration and Naturalization Service. "If an individual comes here on a tourist visa and commits a prosecutable offense they could become inadmissible for that reason.
"Any felony that imposed a one year or more sentence is considered to be a deportable offense," Kraushaar said. She noted the current version of the law classifies white-collar crimes or fraudulent activities, such as passing bad checks, to be a deportable offense if the amount taken exceeds $10,000.
The decision whether to begin deportation proceedings, which the INS refers to as removal proceedings, rests with the agency's district counsel.