案件简介：被告人吴某某、陈某某等结伙在台州市椒江区洪街道某闹市区聚集他人赌博，吴某某等以“拔二张”形式聚众赌博并向庄家抽头获利，赌场共抽头获利100000余元，被告人吴某某在其同伙被抓后，向公安机关投案自首，后被取保候审。公诉机关以开设赌场罪移送法院审判，辩护人受吴某某的委托出庭为其辩护。法院一审判决吴某某等犯聚众赌博罪判处有期徒刑一年两个月，缓期两年执行，公诉机关未就本案抗诉。

争议焦点：被告人吴某某等行为构开设赌场罪还是聚众赌博罪。

辩护词

审判长、人民陪审员：

浙江利群律师事务所接受本案被告人吴某某的委托，指派金伟律师担任被告人吴某某的辩护人。为履行辩护人的职责，开庭前辩护人查阅了本案的卷宗材料，会见了被告人吴某某，又参加了刚才法庭调查，现根据事实和法律发表如下辩护意见，供合议庭参考：

一、首先，辩护人认为被告人吴某某的犯罪行为应当定性为聚众赌博罪，起诉书指控被告人吴某某等构成开设赌场罪不成立。

我国《刑法》第三百零三条规定了聚众赌博罪与开设赌博罪两个罪名，两罪在主观方面均表现为故意且以营利为目的，但在客观方面有所不同。聚众赌博罪是指以营利为目的，聚众赌博或者以赌博为业的行为；而开设赌场罪是指行为人以营利为目的，营业性的为赌博提供场所、设定赌博方式、提供赌具、筹码、资金等组织赌博的行为。分析本案被告人吴某某的犯罪行为符合聚众赌博罪的特征，而不符合开设赌场罪的特片,理由有如下：

1、开设赌场顾名思义是指行为人提供给赌徒一个由他们开设的赌场，这个赌场既由行为人开设，当然由行为人操控。但本案被告人吴某某等人并没有提供或设立专门用于赌博的场所。他们所认为是他们开设的赌场，其实只是他们寻找到的认为可以聚众赌博的所在，也就是说被告人吴某某他们只是在寻找赌博地点，寻找能够吸引赌徒前来参赌、人气旺的赌博地点。这可以从陈某某的讯问笔录中的内容予以证明，见陈某某的第一次讯问笔录第3页第第4行起“我、吴某某、李某某等就在商量赌场放哪里好，李某某说去洪家上洋桥村看看等,来到洪家上洋桥村112路公交车站牌往北150米至200米的一个竹棚底下，我们决定先在这里试试看。第二天上午9、10点钟，我、吴某某、李某某等就来到这个竹棚里面开设“拨两张”的赌场，不过，这里人气不旺，赌场放5、6天左右就搬到上洋桥菜场东大门门口卖鱼摊的边上去了”，第5页倒数第10行第9行“我们就聚在菜场东大门南面路边卖鱼摊旁赌博以招徕赌徒，但围观的人不少、参赌抓牌下注的人太少”，第6页第2行“之后，赌场又搬到了上洋桥菜场东大门对面现在的熟食摊隔壁的简易棚底下”，第6页第7行到第9行“第三个位置开设了一个月左右，因为对面鸡鸭的摊主的鸡鸭毛太臭了，又把赌场搬到鸡鸭摊所在的铁皮棚下面”，“赌场换到第四个位置10天左右。。。赌场又往南向里面移了一下”。陈某某的上述供述表明被告人吴某某、陈某某等人一直在寻觅一个可以用来赌博且能够招徕或吸引更多赌徒的赌博地点，这个地点是开放的，不归属于任何人所有或任何人控制的场所。之所以他们寻找到的场所变成了赌博场所，完全是因为他们一伙聚在一起先赌起来，招徕了过往路人一起参赌而已。尽管陈某某在讯问笔录中讲到他们是开设赌场的，但他们所谓的开设赌场并不是真正法律意义上的开设赌场，仅是指他们寻找到一个地点认为这个地点可以聚赌的赌博地点。

2、被告人吴某某等人以自己先赌起来再吸引别人来参赌，然后进行抽头渔利的行为，完全符合聚众赌博的客观表现，为聚众赌博行为，开设赌场行为一般行为人不参与赌博。

被告人吴某某、陈某某均交代，在他们物色到一个他们认为可以赌博的所在后，他们几个人就聚在一起先赌起来，以招徕其他赌徒前来参赌。见吴某某的第4次询问笔录第2页第9行-第11行“我们聚在上洋桥菜场三岔路口的铁皮棚下面以扑克牌拨两张的形式进行赌博，先是我、陈某某等轮流抓牌下注来招揽赌徒，等赌徒多起来了，我们五人便不再抓牌、下注了”；第3页第13行起“赌场里如果缺人拨牌、下注，我们就顶上去”。陈某某第1次询问笔录第5页第3行“我们五人轮流抓牌、下注，赌资都是自顾自得，往往自己几个赌了半个多小时仍旧没有人的话就站在边上玩了”，第5页第17行18行“我们问上洋桥菜场的门卫老头借来一张木桌和几张塑料凳，就聚在菜场东大门南面路边卖鱼摊旁赌博以招徕赌徒”。

3、被告人渔利的主要方式是“抽头”，开设赌场往往除了“抽头”还提供高息赌资获利。

辩护人认为本案中被告人吴某某等人在主观上确实有开设赌场进行营利活动的意思表示，但在实际行为过种中他们采取的方法并不是直接的开设赌场组织他人赌博营利，而仅仅是以聚赌的方式来吸引他人参赌予以抽头营利的，故不构成开设赌场罪，而是构成聚众赌博罪。

二、在量刑方面辩护人认为，被告人吴某某具有法定从轻、减轻处罚的情节，请求法庭依法对其从轻处罚。

1、被告人吴某某系自首。根据《刑法》第六十七条第一款的规定，对于自首的犯罪分子，可以从轻或者减轻处罚；对于犯罪较轻的，可以免除处罚。

2、被告人系初犯，以前无违法犯罪的不良记录；

三、请求对被告人吴某某适用缓刑。

《刑法》第七十二条规定，对于被判处拘役、三年以下有期徒刑的犯罪分子，同时符合下列条件的，可以宣告缓刑，一是犯罪情节较轻，二是有悔罪表现，三是没有再犯罪的危险，四是宣告缓刑对所居住社区没有重大不良影响。被告人吴某某犯罪后能够主动投案自首，充分体现了其悔罪态度和没有再犯罪的危险，另外根据刑法第三百零三条第一款的规定，犯赌博罪的量刑是在三年以下有期徒刑、拘役或管制，因此对被告人吴某某适用缓刑，完全符合法律规定的条件，请求法庭能充分予以考虑。

Brief introduction to the case: The defendants, Wu and Chen, teamed up to gather others to gamble in a downtown area of Hongjie Street, Jiaojiang District, Taizhou City. Wu and others gathered to gamble in the form of "pulling out two cards" and made profits from the dealers. The casino made a total profit of more than 100000 yuan from the lottery. The defendant, Wu, surrendered to the public security organ after his accomplice was arrested, and was later released on bail pending trial. The prosecution was transferred to the court for trial on the crime of opening a casino, and the defender was entrusted by Wu to appear in court to defend him. The court sentenced Wu and others in the first instance to one year and two months in prison for the crime of gathering people to gamble, with a two-year suspension of execution. The public prosecution did not protest against this case.

The focus of controversy: whether the defendant Wu and others constitute the crime of opening a casino or the crime of gathering people to gamble.

Defense statement

Chief Judge and People's Juror:

Zhejiang Liqun Law Firm has accepted the commission of the defendant Wu in this case and appointed Lawyer Jin Wei as the defender of the defendant Wu. In order to perform the duties of the defender, the defender consulted the file materials of the case, met the defendant Wu Moumou, and participated in the court investigation just now. Now, based on the facts and laws, the defender expresses the following defense opinions for the reference of the Judicial panel:

1. Firstly, the defense believes that the defendant Wu's criminal behavior should be classified as the crime of gathering people to gamble. The indictment accuses the defendant Wu and others of constituting the crime of opening a casino and is not established.

Article 303 of the Criminal Law of our country stipulates two charges: the crime of gathering people to gamble and the crime of opening gambling. Both crimes are subjectively manifested as intentional and profit-making, but there are differences in objective aspects. The crime of gathering people to gamble refers to the act of gathering people to gamble or engaging in gambling for the purpose of profit; The crime of opening a casino refers to the behavior of the perpetrator, with the purpose of profit, providing a place for gambling, setting up gambling methods, providing gambling equipment, chips, funds, and other organized gambling activities. The criminal behavior of the defendant Wu in this case conforms to the characteristics of the crime of gathering people to gamble, but does not meet the special features of the crime of opening a casino. The reasons are as follows:

(1) Opening a casino, as the name suggests, refers to a casino provided by the actor to gamblers, which is both opened and controlled by the actor. However, the defendant Wu and others in this case did not provide or establish a dedicated gambling venue. What they believe to be the casino they opened is actually just the place they found that they believe can gather for gambling. That is to say, the defendant Wu is just looking for a gambling location, looking for a popular gambling location that can attract gamblers to participate in gambling. This can be proven by the content in Chen's interrogation transcript, From the fourth line of page 3 of Chen's first interrogation transcript, "I, Wu, Li, and others are discussing where to put the casino. Li said to go to Hongjia Shangyangqiao Village to take a look and wait. We arrived at a bamboo shed 150 to 200 meters north of the 112 bus stop sign in Hongjia Shangyangqiao Village, and decided to give it a try. The next day at 9:00 am and 10:00 am, Wu, Li, and others came to this bamboo shed to open" dial two tickets " The casino, however, is not very popular here. After about 5 or 6 days, the casino moved to the side of the fish stall at the east gate of the Shangyangqiao vegetable market. "On page 5, bottom 10, line 9," We gathered at the fish stall on the south side of the east gate of the vegetable market to gamble and attract gamblers, but there were many onlookers and too few people participating in the gambling and betting, On page 6, line 2, "Afterwards, the casino moved to the simple shed next to the current cooked food stall opposite the east gate of the Shangyangqiao vegetable market." On page 6, lines 7 to 9, "The third location was opened for about a month because the chicken and duck feathers of the vendor opposite were too smelly, and the casino was moved to the iron shed where the chicken and duck stall was located." "The casino moved to the fourth location for about 10 days. The casino moved south and inside again. The above statement by Chen indicates that the defendants Wu, Chen, and others have been searching for a gambling location that can be used for gambling and attract or attract more gamblers. This location is open and does not belong to any place owned or controlled by anyone. The reason why the place they found turned into a gambling venue was entirely because they got together and started gambling, attracting passersby to participate together. Although Chen mentioned in the interrogation transcript that they opened a casino, their so-called opening of a casino does not truly mean opening a casino in the legal sense, but only refers to finding a gambling location that they believe can be used for gambling.

(2)The defendant Wu and others used their own behavior of gambling first, then attracting others to participate in the gambling, and then taking turns to profit, which fully conforms to the objective manifestation of crowd gambling. It is a behavior of crowd gambling, and generally, the behavior of opening a casino does not involve gambling.

The defendants Wu and Chen both confessed that after they found a place they believed could be gambling, they gathered together to start gambling and attract other gamblers to participate. On page 2, lines 9 to 11 of Wu's fourth inquiry record, we gathered under the iron shed at the intersection of the Shangyangqiao vegetable market to gamble by playing two cards. First, I, Chen, and others took turns grabbing cards and betting to attract gamblers. When there were more gamblers, the five of us stopped playing cards and betting; Starting from line 13 on page 3, "If there is a shortage of people in the casino to dial cards or place bets, we will go ahead. On page 5, line 3 of Chen's first inquiry record, we took turns grabbing cards and betting, and the gambling was done on our own. Often, if we had gambled for more than half an hour without anyone, we would stand by and play. On page 5, line 17, line 18, we asked the old guard at the Yangqiao vegetable market to borrow a wooden table and several plastic stools, and gathered by the fish stall south of the east gate of the vegetable market to attract gamblers.

(3)The main way for the defendant to profit is through "lottery", and opening casinos often provides high interest gambling profits in addition to "lottery".

The defense believes that the defendant Wu and others in this case did subjectively express their intention to open a casino for profit activities, but in their actual behavior, the method they adopted was not directly to open a casino to organize others to gamble for profit, but only to attract others to participate in gambling and make profits through group gambling. Therefore, it does not constitute the crime of opening a casino, but rather constitutes the crime of gathering gambling.

2. In terms of sentencing, the defender believes that the defendant Wu has a legally mitigated or mitigated punishment, and requests the court to impose a lighter punishment on him in accordance with the law.

(1) The defendant Wu surrendered himself. According to Article 67 (1) of the Criminal Law, criminals who voluntarily surrender may be given lighter or mitigated punishment; For those who commit minor crimes, they can be exempted from punishment.

(2) The defendant is a first-time offender and has no previous criminal record;

3. Requesting the application of probation to the defendant Wu.

Article 72 of the Criminal Law stipulates that for criminals who are sentenced to criminal detention or fixed-term imprisonment of not more than three years and meet the following conditions, suspension of sentence can be declared: firstly, the crime is relatively minor, secondly, there is repentance, thirdly, there is no risk of committing another crime, and fourthly, the suspension of sentence has no significant adverse impact on the community in which they reside. The defendant, Wu, was able to voluntarily surrender after committing a crime, which fully reflects his repentant attitude and the risk of no further crime. In addition, according to Article 303 (1) of the Criminal Law, the sentencing for committing gambling crimes is imprisonment, detention, or public surveillance of no more than three years. Therefore, the application of probation to the defendant, Wu, fully meets the conditions stipulated by law. The court is requested to fully consider this.