Federal Appeals Court Says Poker Is a Crime After All

Today the U.S. Court of Appeals for the 2nd Circuit overturned a federal judge's 2012 determination that poker, as a game in which skill is more important than luck, is not covered by the Illegal Gambling Business Act (IGBA). The 2nd Circuit's decision reinstates the conviction of a Staten Island poker room operator named Lawrence DiCristina, who argued that IGBA applies only to games of chance like those mentioned in the statute. U.S. Judge Jack B. Weinstein found DiCristina's argument plausible enough to enter a post-verdict judgment of acquittal. He said that result was dictated by the rule of lenity, which requires that ambiguous criminal statutes be interpreted in the light most favorable to the defendant. Where Weinstein saw ambiguity, however, the appeals court saw clarity. The 2nd Circuit rejected the idea that IGBA is based on a special federal definition of gambling that is distinct from New York's, which includes any game "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."

IGBA criminalizes the operation of any "gambling business" that "(i) is a violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day." The law says "'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." Although that list is not exhaustive, Weinstein said, it can fairly be read to imply that the law's targets are similar to these activities, all of which are dominated by chance. The 2nd Circuit disagreed, concluding that "the question of whether skill or chance predominates in poker is inapposite." Hence it instructed Weinstein to "reinstate the jury verdict" and "proceed with sentencing DiCristina," who faces up to five years in prison for one count of violating IGBA, plus five more for conspiracy. 

According to the Poker Players Alliance, Weinstein's ruling was "the first federal court decision on whether poker is a game of skill rather than gambling." The appeals court saw no need to question Weinstein's judgment on that score.