They know when to fold 'em. Las Vegas prosecutors targeting two men who took advantage of a software bug to win a small fortune at video poker have dropped all hacking charges from the case, cashing out an 18-month legal battle over the applicability of the 1986 Computer Fraud and Abuse Act.
"The United States of America, by and through the undersigned attorneys, hereby moves this Court to dismiss Counts 2 and 3 of the Indictment," wrote(.pdf) Assistant U.S. Attorney Michael Chu yesterday, in a terse motion immediately granted by U.S. District Judge Miranda Du.
Du had asked prosecutors to defend their use of the federal anti-hacking law by Wednesday, in light of a recent 9th Circuit ruling that reigned in the scope of the CFAA.
The dismissal leaves John Kane, 54, and Andre Nestor, 41, facing a single remaining charge of conspiracy to commit wire fraud – another federal law that generally criminalizes fraudulent schemes that use wire communications. Trial is set for August 20.
In 2009, Kane, an avid gambler according to his attorney, stumbled onto a firmware bug in IGT's Game King video poker machine that allowed him to effectively play back a prior winning hand at ten times the original value. He phonesd his friend Andre Nestor, who joined Kane in Vegas to allegedly exploit the bug at a string of casinos. Nestor then returned to Pennsylvania and used the bug at a casino there to the tune of $400,000 in winnings.
Prosecutors had argued that the complex sequence of button presses needed to activate the bug made it a form of hacking. But defense lawyers argued that Kane and Nestor only played by the rules imposed by the machine.
“The case never should have been filed under the CFAA," says Kane's lawyer, Andrew Leavitt. "It should have been just a straight wire fraud case. And I'm not sure its even a wire fraud. I guess we’ll find out when we go to trial.”
Asked if his client was still gambling, Leavitt says, “I don’t know. I hope not.”
Updated 14:40 with comment from Leavitt.
