Appellate Court Overturns US v. DiCristina Verdict, Skill Game Argument Declared Moot

scales-justiceTuesday’s reversal of the landmark 2012 decision in United States v. Lawrence DiCristina again showed the inherent problems in the “poker is a game of skill” argument in legal circles, which remain pitted directly against United States’ entrenched gambling laws at the state and federal levels, which often leave no room for “skill” considerations.

A summary of the latest news is in order.  Tuesday’s opinion by the United States Court of Appeals for the Second Circuit reverses the original decision by Judge Jack Weinstein wherein Weinstein ruled that because poker was clearly a game of skill, it was therefore not covered by the Illegal Gambling Business Act (IGBA), the statute under which charges were brought against DiCristina, who along with another man owned and operated a regular small-stakes poker room being run out of a Staten Island (NY) warehouse.

In the latest decision, Weinstein’s finding was summarily dismissed by the three-judge appellate court.  Here’s the very brief overview of the appellate court’s decision:

Appeal from an order of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), granting Defendant’s motion to dismiss the second superseding indictment and vacating his conviction for operating and conspiring to operate an illegal poker business, in violation of 18 U.S.C. §§ 1955 and 371. We hold that the District Court erred in determining that Defendant’s poker business did not fall within the ambit of the Illegal Gambling Business Act.

Accordingly, the order of the District Court is REVERSED.

As usual, the best details come from deeper in the body of the decision.  It’s also important to understand that DiCristina was actually found guilty in his original trial of violating IGBA and running a “gambling enterprise,” and that Weinstein actually set aside a jury verdict in rendering his 2012 decision.

The brief opinion attached to the decision, authored by appellate judge Chester J. Straub, emphasizes that point.  Wrote Straub: “Because we find that the plain language of the IGBA covers DiCristina’s poker business, we REVERSE the judgment of acquittal and REMAND to the District Court with instructions to reinstate the jury verdict, enter a judgment of conviction on both counts, and proceed with sentencing DiCristina.”

This doesn’t mean that DiCristina and his attorneys couldn’t launch their own appeal, and the Poker Players Alliance — which presented the “skill game” evidence regarding poker as an amicus curiae (“friend of the court”) participant, has already declared in a statement that they’ll continue to support DiCristina through any appeal.

The key argument, as thoroughly argued before the appellate court and parsed very carefully in its finding, was this clause taken from IGBA, defining the types of gambling to be covered under the “illegal gambling business” reach of the statute:

(2) “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.

The emphasis on “includes but is not limited to” was the appellate court’s work, and was further detailed in the opinion.  When the appellate judges turned to IGBA’s heavy leaning on state law to help determine what other forms of gambling might be covered, that’s where their findings started to shift against DiCristina.

In truth, arguing this in the face of IGBA’s reliance on New York state law in this case was always a glaring weakness of the defense tactics, since New York has a very broad definition of gambling which has already been used to prosecute other poker games as “gambling activity.”

As was relevant to (and incorporated within) IGBA’s scope, this part of the NY gambling statutes thus had relevance:

A “contest of chance” is in turn defined under New York law as “any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.”

That overly broad definition led the appellate court to dismiss the claim by DiCristina’s attorneys that the “rule of lenity” should apply.  That’s when two reasonably different interpretations of a law can be offered, as in this case, whether or not poker was intended to be included under the NY state law’s reach.  The appellate judge’s thought the reach to cover poker was proper.

So did Weinstein, for that matter, but he had earlier set aside the second part of DiCristina’s original guilty verdict on the “poker is a skill game” argument; at one point in DiCristina’s original trial, Weinstein had declared PPA-provided statistical expert Randall Heeb’s “skill game” analysis and testimony as moot, since DiCristina himself had already acknowledged poker’s gambling aspects as well.

As for the PPA, they declared the reversal disappointing, while continuing to harp on poker’s skill-game aspects, which true or not, were likely irrelevant given the construction of the New York code.  Here’s part of a statement by PPA Executive Director John Pappas:

“Today’s decision by the 2nd Circuit Court, while unfortunate, only adds to the growing call for federal clarity on the definition of gambling. The 2nd Circuit clearly did not dispute the district court’s finding that poker is a game of skill. This is a key point distinguishing poker from the types of gambling games that Congress and state legislatures have often tried to prohibit. What the court did was conclude that the IGBA does not set forth an independent federal definition of gambling, but instead only incorporates state law.

“Ample academic studies and judicial rulings at the state and federal level have concluded that poker is indeed a game of skill. Period. The PPA will continue to advocate for a clear, federal definition of gambling as a game predominated by chance, thus preserving the right of Americans to play this great game of skill.

“The PPA stands ready to support Mr. DiCristina should he choose to appeal this decision, and we are committed to working through the judicial and legislative processes to establish a clear definition of gambling based on the predominance test.”

Unfortunately, IGBA remains a lousy vehicle to attack, since it is based on 50 different state laws, meaning that an activity that might be deemed criminal under IGBA in New York (with DiCristina’s warehouse poker game the example), might not even be a crime under IGBA in a different state.  That’s sort of odd, but it’s the legal reality.  It also shows that poker/gambling arguments remain, inherently, a state-level matter.

The DiCristina reversal?  It wasn’t a great day for poker, but it also wasn’t an unexpected one.  The technical matter under which the original guilty verdict was dismissed by Weinstein remained a good point for introducing the poker-as-a-game-of-skill argument for public debate, but it was always a thin legal argument under NY law.

And so poker moves on.


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