Poker Bans

Federal Judge Says Poker Is Not Gambling


Yesterday a federal judge threw out the conviction of a Staten Island poker room operator accused of violating the Illegal Gambling Business Act (IGBA), ruling that poker does not qualify as gambling under the statute because it is primarily a game of skill. According to the Poker Players Alliance, which "played a central role in the case" by advising the defense, supplying briefs, and arranging for expert testimony, this is "the first federal court decision on whether poker is a game of skill rather than gambling." The issue arose as U.S. District Judge Jack Weinstein grappled with the scope of IGBA, which does not mention poker. Instead the law, enacted in 1970 as part of a crackdown on organized crime, makes it a federal offense to operate a "gambling business" that 1) violates state law, 2) involves more than five people running the business, and 3) has been operating continuously for more than 30 days or takes in revenue of more than $2,000 in a single day. The poker room run by the defendant, Lawrence Dicristina—who took a 5 percent rake from Texas Hold 'Em games with buy-ins of $100 to $300—met those three criteria. But was it a "gambling business"? The government argued that state law should determine the answer, while Dicristina said Congress intended a distinct federal definition of gambling. Finding that both interpretations were plausible, Weinstein concluded that the "rule of lenity," which says ambiguities in the definition of a crime should be resolved in the defendant's favor, required an acquittal.

"The fact that card games like poker, pinochle, gin rummy, and bridge were so widely played by law-abiding individuals in noncriminal settings may explain [their] omission from the IGBA," Weinstein writes. He notes that IGBA specifically mentions "pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein." While that list is not exhaustive, he says, it suggests Congress had in mind forms of betting similar to those explicitly included, all of which are dominated by chance. Poker, by contrast, is "predominately a game of skill"—a conclusion Weinstein reached based on the expert testimony and studies presented by the defense:

The influence of skill on the outcome of poker games is far greater than that on the outcomes of the games enumerated in the IGBA's illustrations of gambling….

Expert poker players draw on an array of talents, including facility with numbers, knowledge of human psychology, and powers of observation and deception. Players can use these skills to win even if chance has not dealt them the better hand. And as the defendant's evidence demonstrates, these abilities permit the best poker players to prevail over the less-skilled players over a series of hands….

[The government's expert witness] provided no basis for the court to conclude that chance predominates over skill in poker….

Neither the text of the IGBA nor its legislative history demonstrate that Congress designed the statute to cover all state gambling offenses. Nor does the definition of "gambling" include games, such as poker, which are predominated by skill. The rule of lenity compels a narrow reading of the IGBA, and dismissal of defendant's conviction.

Weinstein adds that Dicristina still could be prosecuted in state court. Although the "dominating element" test for gambling that Weinstein applied in this case is the one most commonly used by the states, New York defines gambling 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" (emphasis added). Citing several cases in which New York courts have deemed poker to be gambling under state law, Weinstein says any argument to the contrary "has no merit." But as I noted last year, it is not clear whether these courts are reading the law correctly. Bennett Liebman, executive director of the Government Law Center at Albany Law School, argues that the "material degree" test is essentially the same as the "dominating element" test that prevailed before a revised New York penal code took effect in 1967. Based on the argument accepted by Weinstein, courts should not classify poker as gambling under the latter definition.

As for federal law, Weinstein notes in passing that the Wire Act "applies only to wagering on sporting events." Although the Justice Department insisted for years that the Wire Act made online gambling (including poker) illegal, last year it finally conceded, in an Office of Legal Counsel opinion cited by Weinstein, that such an interpretation of the law is highly implausible. But Weinstein's detailed, 120-page decision could influence how other federal statutes dealing with gambling are read. If his colleagues find his analysis persuasive, the Poker Players Alliance may achieve its goal of carving out a special immunity for this particular game based on the skill argument. That would be a significant achievement, although I would much prefer that the government, at the state as well as the federal level, refrain from trying to dictate the games people play.

Weinstein's decision, which anyone following the controversy over how to classify poker should find interesting, is here.

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  1. There are some luck involved, but with poker, it is primary a matter of skill. God know, I have no skill, thus limit my annual Indian Casino donation drive to just Black Jack.

    1. Depends on the time span you are talking about. Over the course of one 2 hour long home game, luck is quite a strong factor. Over the course of the WSOP Main Event, luck becomes minimal.

      1. Minimal luck in the sense of “someone really bad doesn’t win,” but not in the sense of “the best player always wins (and can be easily determined.)

        Though similar can be said of sporting contests, such as the NCAA Tournament.

      2. Actually luck is a heavy factor in the WSOP Main Event as shown by how few professionals win it nowadays. Tournaments have a large luck factor. The correct time scale is over many tournaments or many hours of table play.

        1. “Actually luck is a heavy factor in the WSOP Main Event as shown by how few professionals win it nowadays.”

          Put some of these amateurs in a cash game with the pros and it’s a lot easier to see the difference. Tournament poker is nothing like seeing the money that comes out of your pocket being handed across a table.

          1. Oh yes, and have experienced it. I always enjoy playing a tournament in Vegas and you know up front what your losses are going to be (assuming you don’t get in the money). Plus the style of play is way more fun. Then again when you are the skilled one table games can be very profitable. Payed for all my beer money freshman year back in the wild west days of online poker.

        2. Just being an amateur doesn’t mean you’re a bad player.

          1. No and the better amateurs are going to survive. But when you have to beat 7000 other people your going to have to put bad beats on people many many times by the time you get to the end.

            1. But you can’t bad beat your way to the bracelet either.

              1. We’re probably in a agreement, I just think that the luck factor in a 2 hour home game is actually lower than the WSOP but they aren’t really comparable.

                1. My point was that you can bad beat your way to a win in a home game (though of course over many weeks the poor player is gonna go broke in that home game too).

      3. I used to work at a casino, and we had one regular who played poker for a living. He showed up at 10 AM, and left at 4 PM Mon-Thur every week unless he was on vacation. He never played in the tournaments, or stayed later if he was winning big, and he NEVER lost. He bought in for $200 every morning, and cashed out about $800 to $1,200 every afternoon.

        Also, you know how some players wear headphones and sunglasses? This guy wore a painter’s mask. He said it was becuase of the cigarette smoke, but I always thought it must be really easy to have a great poker face when you’re wearing a gas mask and sunglasses.

  2. But was it a “gambling business”? The government argued that state law should determine the answer.

    Wow, that’s a first that I’ve seen fed government arguing for the 10th amendment.

  3. …”rule of lenity,” which says ambiguities in the definition of a crime should be resolved in the defendant’s favor, required an acquittal.

    This is the first I’m hearing of any rule of lenity. Vaguely defined laws are what keep prosecutors in business.

    1. I seem to recall a Supreme Court justice recently determining an “ambiguity” in favor of the government.

      1. That was different! He was heroically saving the legislature from its own mistakes!

        1. The mistake of explicitly wording it a certain way to avoid political backlash.

        2. Obviously, the will of the people = undoing changes to a law made by legislators afraid of getting booted out of office if they didn’t make the change.

          1. legislators afraid of getting booted out of office

            Since when did incumbents really have to worry about getting booted out of office?

  4. Poker is absolutely a game of skill primarily but there is no escaping the fact that there is luck involved. You can be the best player at any table and still lose out to lucky hand, which in turn makes it gambling in my opinion. Interesting case in my opinion, I think the real problem with making online gambling illegal is the amount of tax revenue the government would be missing. It’s not a small amount that is for sure!

    1. So if there is any skill involved at all, it’s gambling? NFL football games are gambling, because the coin toss decides who gets the ball to start each half?

      1. If there is any luck involved at all

        I would gladly pay you Tuesday for an edit button today.

    2. I think the real problem with making online gambling and poker playing illegal is not allowing peopl eto do what they want with their own damn money.

      But then again, I didn’t build/earn that.

      1. Listen: if you’ve got an opinion, you didn’t think that.

        1. You clearly weren’t talking about opinions

    3. Wow, that’s your main problem with making online gambling illegal?

    4. You can be the best player at any table and still lose out to lucky hand, which in turn makes it gambling in my opinion.

      And that might be the only hand you loose, which makes it a game of skill in my opinion.

    5. You can be the best player at any table and still lose out to lucky hand, which in turn makes it gambling in my opinion.

      If any element of luck is a problem, then a drastic change in wind during a player’s ball flight at the Masters could end up imprisoning a lot of people.

  5. private games remain legal. the house musta been taking a cut to run afoul of the law.

    1. From the first paragraph:

      The poker room run by the defendant, Lawrence Dicristina?who took a 5 percent rake from Texas Hold ‘Em games with buy-ins of $100 to $300?met those three criteria.

    2. Private games are legal, as long as there’s no rake or no fee to pay for shit like food and drink. So, pretty much children’s games played with MyM’s.

    3. The laws vary considerably from state to state. Many states do in fact allow private home games, provided there is no kind of house “rake” or fee. But in some states only “penny-ante” games are legal, (penny-ante usually defined as pots not to exceed $10), and in some states wagering any money at all on dice and card “games of chance” is completely prohibited, regardless of whether the house is taking a profit or not.

  6. Who cares if it is a skill or all luck. It shouldn’t be a crime in the first. Butt out, jerks.

    1. ^^THIS

      Skill can be defined any way you like. From being able to find the fucking slot for the quarter in the slot machine to being able to distinguish between red and black on a roulette table. And if you’re really skilled you can read the numbers.

    2. Very very true.

    3. Very very true.

      Another very very true thing: the spam filter sucks.

  7. Random memory: playing online poker at the fake money tables, and there was always, and I mean always, some asshole who went all-in on every hand. Every fucking hand. They would run out of fake chips and leave the table and some other all-in fucker would show up.

    1. That doesn’t happen with real

        1. By which I mean that I wish it did happen

    2. Playing for fake money is stupid. With no risk involved nobody is going to play with the right incentives.

      1. You precognitive bastard!

        1. Seriously, play a $5 buy in tournament or something if you are worried about friends losing to much money.

          Or online they had/have things like $1 buy in tournaments with just one table. Even that is a huge jump up from free play.

          1. When I was high school we played $5 tournaments 1-2 nights a weekend. It was a blast. No one ever lost more than $20 in a weekend, and you had hours of fun. Even if you got knocked out right off, you just ate Wendy’s and played Halo.

            1. The first 5 years of my professional life me and 3-7 other young’uns would do this in the conference room at work for Friday happy hour. Good times.

      2. Many people will play as if it were “real”. All it takes is one or two goofing around to make a play money table useless as practice.

    3. This is a big part of the reason I don’t enjoy free poker games at all. People don’t care about actually playing the game when there is no risk.

  8. The question I’m left with: Why are games of luck illegal?

  9. I think the best argument I’ve seen that it’s a game of skill is the one crafted by Annie Duke (I believe). Anyway, the argument goes something like:

    Don’t focus on the winning aspect, but focus on the losing aspect. Name another “game of chance” that you can guarantee yourself not winning a dime in? Even games with the longest odds you cannot guarantee yourself to be a loser. For example, playing the lottery. Can you guarantee that you won’t win? Of course not. What about another game that’s strictly luck, roulette? Can you put your money down and ensure that your number won’t come up? Again, no.

    But then look at poker. You can make sure you don’t win any hands over the course of an evening/week/month/lifetime if you wanted.

    1. Of course this just focuses on the game of luck vs. skill argument. Obviously, neither should matter and people should be left alone with their decisions on playing a game for money, whether or not it’s based on luck.

      Even more infuriating is the fact that the very same states will gladly suck up money for the lottery.

    2. Eventually you’re required to go all in, and then you can’t control whether you win or not.

      1. I’ll bet most games with have no problem with the old “call the big blind all in and then fold manoeuvre”

        I know I sure wouldn’t.

      2. As the above person states, there’s nothing that says you can’t fold after going all in. I don’t think many at the table would object.

        And if we’re talking a cash game, not a tournament/no limit game, you’ll rarely, if ever, have to go all in.

  10. prior to WA making online poker a C felony, i played a LOT online.

    in over 30 months of playing, i only had 1 losing month. considering that i played thousands of hands a month, that’s not surprising (multi-tabling).

    the variance in no-limit can be high game to game, but when you are multi-tabling and playing “small ball”, it’s pretty workable.

    it really comes down to this, and it’s EXACTLY like futures trading – if you have an edge, if you exploit that edge, and if the edge EXCEEDS the rake (which is much lower online. the rake at casinos can make low limit play VERY difficult to beat longterm), you will win, assuming your bet sizing and stakes you play are well within your bankroll.


    1. poker is CLEARLY, given sufficient “n” a game of skill. all one has to do is look at the success rate of elite players YEAR after YEAR decade after decade to see that.

      anybody can win short-term. a complete donk can beat luke schwartz no problem. in the short term.

      for me, i used extensive tracking data to track my opponent’s betting patterns online, and that was my edge. i exploited their weaknesses.

      i’ve played a fair amount at casinos, and i did very well in vegas at low limits, but at least in WA, given the rake, and when you consider gas money, etc. it is going to be difficult to win longterm at low stakes poker. online, it is much easier math-wise, even though the caliber of play is generally better.

      live poker does allow one to exploit live tells, but imo live tells are overemphasized. betting patterns are a much better tell, especially when playing good players. you will rarely catch a live tell (body language, pulse, etc.) on a good player. any decent poker player should be able to beat a polygraph imo (which are a joke, but i digrees).

      betting patterns are a much more robust and reliable method. and again, exploit the weaknesses. at a super tight table, play looser at a loose table, play tighter, check the aggros, raise the passives, etc.

      iow, the judge is right

      1. Another big advantage of online poker is the speed of play, which allows you get more hands in. Assuming you’re a winning player, more hands/per hour means a higher earnings rate.

        1. yes. it smooths the curves, too when multi-tabling. i usually played 4 tables at a time. i was not one of those uber geniuses who play 8 or more tables.

          1. The problem with 8 tables is that you won’t really be paying attention to whats going on at most tables, so you’ll pick up a lot less on other players. You’ll be playing more based just on your hand (and if the table turnover isn’t too high, generic player stats you looked up).

            1. it works for the uber geniuses. guys like dwan etc. did that for years and made incredible bank

              it’s just clearly WAY WAY WAY WAY beyond my comfort zone or skills, but i can’t deny the people it works for.

              i totally agree btw, i think the more tables you play the less you are exploiting individual player tells/patterns and the more you are playing math. 8 tables appeal to the pareto-optimal guys a lot.

              2+2 forum btw, is an incredible forum for poker info. a lot of very interesting stuff.

              1. I didn’t mean to imply that it couldn’t work for people, just that you’re turning it into more of a formula. While I tend to play bit more mathematical than most, I don’t want to be making every decision like a robot. That stops being fun and starts just being about making long term money. I just don’t enjoy being a grinder.

      2. By far the most common live tell I have noticed playing in brick-and-mortar games over the years is that there are certain types of guys that just talk too damn much whenever they have a monster.

        And some of them are actually pretty decent players, but they just can’t seem to help themselves. As soon as they start yapping away preflop, I know right away they have the bullets.

        1. yup. and some will do the exact opposite. matusow is prone to this. either way, i agree it’s very exploitable.

          another tell that works on poor players is watch their eyes when the flop comes. if they look at the flop, then immediately dart their eyes away from it, it almost means the flop hit them hard. it’s like they don’t want to keep looking at it, lest they think other people can see them salivating over it.

          in online poker, with some players, you CAN tell just by how long they take to click a bet, whether they have it or not. really quickly more often means bluff. when they have the nuts, they will wait longer because they want to make it look like they are agonizing over a decision.

          the main thing is it is somehwat player dependant which is why online was so exploitable. i could watch a table and track player patterns for hours and track them in my poker software for future use

          for example, i would see that when he check-raised the turn in late position, he always “had it”. other players, knowing the “baluga whale ” theory (spelled correctly) will check raise the turn when they are weak, because they know it LOOKS strong to those playing ABC poker

          gotta play the player

          1. When I played online, I made sure to always take the same amount of time to make a raise.

            A good thing for me in live play is that I don’t really talk ever. I’m not playing in a casino to make friends.

            1. talking can work for or against you. i am a talkative player.

              sometimes when i am playing somewhere new i will totally play the part of the donk (godfather theory). some people think that’s angle shooting, but i think it’s fair.

              i will ask some TOTAL newbie questions, and even fumble with my chips etc. and say stuff that is just inane (this comes easily to me) 🙂

              and wait.

              usually, there will be a table captain/bully who will exploit the donk (that’s me) and i can turn around and felt him given the rights circs.

              i model my play most closely on negreanu’s who plays small ball and who does the talking game

              i think my cop background (interviewing/interrogating) and my 2 yrs undercover and my acting experience make the talking shit a natural for ME. but i agree, for many players it is more likely to hurt them.

              good police work is 90%+ communication skillz imo. it’s a “people job”

              that’s why, when i am doing interviewing, i look for those skills (on oral board) vs. criminal justice degrees or other rubbish

              show me a successful car salesman and he could be a great cop
              or poker player

              police work and poker are both games where game theory and operating under limited information framework, apply

              short term, you can’t be results oriented, you must be process oriented.

              the right play in either game can lose big time. you can get sucked out on

              that’s life. it doesn’t mean you made the wrong play. you made the right play, but it turned out wrong

              1. The best session I ever had was on a cruise ship where they had this semi-electronic table thing. I had never seen that before, and didn’t know how to work it when I sat down. I picked up quite a few hands early on that seemed to be because the other guys thought I didn’t know poker.

  11. So, out of newbie curiosity, what are the best online holdem sites remaining for Americans?

  12. So if it’s a game of skill, they can bring back internet poker now?

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