Is It a Federal Crime to Host a Poker Game? SCOTUS May Soon Decide

Is it a federal crime to host a poker game? The U.S. Supreme Court may soon weigh in on the answer. At their private conference this Friday, the justices will consider a petition for review filed by a New York man facing up to five years in prison for hosting poker games in the back of his bicycle shop.

At issue in DiCristina v. United States is the reach of the Illegal Gambling Business Act, a federal law enacted as part of the Organized Crime Control Act of 1970, which lays out federal penalties for anyone who "conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business." According to the Justice Department, small business owner Lawrence DiCristina violated that law by running games of "No Limit Texas Hold 'Em" where DiCristina charged players a fee of five percent of each hand's pot.

DiCristina counters the government's position by arguing that because poker is a game of skill, and not a game of chance, it does not count as a form of gambling, and therefore the federal statute should not apply to his activities. "Using this anti-Mafia statute, federal prosecutors have targeted low-profile poker games with no connection to organized crime," DiCristina told the Court in his petition. And because of that federal overreach, the petition continues, "DiCristina, a small business owner with no prior criminal record, now is a federal felon because he hosted poker games for money in his bicycle shop."

Unsurprisingly, the case has caught the attention of professional poker players. In a friend of the court brief submitted on DiCristina's behalf, a group of professional and amateur players, including Poker Hall of Fame member Michael Sexton and 2004 World Series of Poker Main Event winner Gregory Raymer, urges the Supreme Court to side with DiCristina. "Poker is similar to golf, bridge, Scrabble, and numerous other games of skill where players put up a monetary stake, compete against each other, and reward the winning player," the brief states. "Unlike poker, competitions involving these games have never been branded federal felonies."

The Supreme Court could announce as early as next week whether or not it will hear the case.

Comments

[Dr. Frankenstien]

Does the Federal government have the authority to outlaw local gambling? Checks pocket US Constitution. Ah yes here it is the FU that's why clause.

[~Knarf Yenrab~]

I wouldn't put living things like the US Constitution in my pocket were I you.

[WTF]

Yup, not really one of the powers delegated to the federal government.

[Mongo]

I thought that statisticians and numbers people determined poker to be a game of chance already.

It seems like a game of chance to me (a newbie) unless you factor in the psychological reading and physical cues of your opponent.

[Floridian]

The cards are random, but the way you play them is not. That is why skilled players routinely end up at the final table in tournaments.

[Two Fingers]

"I thought that statisticians and numbers people determined poker to be a game of chance already."

The deal of the cards is random; therefore any winning (non-draw) hand is purely by chance.

However, any selective betting is completely non-random. Therefore the act of betting converts a game of chance into one of skill.

It is poker without betting that should be banned as a game of chance!

[John]

I think they are on pretty weak ground to call it a game of skill.

That said, I guess it is too much to ask that they kill this thing on commerce clause grounds.

The problem here is not that poker isn't gambling. It certainly is. The problem is that there is no way in hell two people betting on a golf game or playing cards for money in their living room should be subject to federal law. And if this guy is, those people are as well.

I am not optimistic this guy is going to win. The right result would be to rule the statute unconstitutional as it applies to games that do not involve interstate commerce. Set up a game that advertises to people from out of state and is designed to get business from across state lines, sure maybe the feds have an interest in that. But absent proof of that, this guy should walk.

Writing that opinion would require killing Wickard. And that won't happen.

Think about it though, if the feds can tell you that you can't grow wheat in your home garden, why can't they make it a felony to gamble on a golf game?

[sarcasmic]

Every time you spend money on anything, that money could have been spent on something else that affected interstate commerce.

Thus the federal government, in the name of interstate commerce, can involve itself in any exchange of any kind between anyone.

Or something.

[WTF]

They can also force you to participate in anything that has some kind of remote connection to commerce, because 'regulate' means 'make rules about', including rules requiring you to do things you otherwise wouldn't do.

(MNG actually argued this in all seriousness.)

[Francisco d Anconia]

The cards were made in another state. Commerce clause.

Er, no wait...the money was printed in another state.

FUCK WICKARD!

[Robert]

A point of contention is whether "illegal gambling" is to be construed as a unitary term, or whether "illegal" and "gambling" are to be construed separately, which could have a bearing on whether a statutory (or regulatory, or case law) definition established by state or federal law rules. I'm afraid that if "gambling" is construed separately and not defined, customary usage may determine all card games with stakes to be "gambling" whether skill is involved in them or not.

As with marriage, this issue may turn on how people customarily use particular words.

[John]

The fed statute can't cover gambling that is otherwise legal in the state it is in. If it did, then all the legal casinos would be in violation of federal law.

But even if this is "illegal gambling" under state law, it still has to be an activity that affects inter state commerce or the feds have no jurisdiction to apply their laws to it.

[PM]

I think they are on pretty weak ground to call it a game of skill.

Baxter vs US provides some precedent in that direction.

[PM]

To wit:

the Court finds that capital was not a meterial -income-producing factor in Baxter's gaming income. In fact, the Court finds that Baxter's income was derived entirely from his personal services and that the capital he used to finance his poker playing was merely a "tool of the trade." The money, once bet, would have produced no income without the application of Baxter's skills. [...] it was Baxter's extraordinary poker skills which generated his substantial gaming income, not the intrinsic value of the money he bet.

[Grange95]

Baxter v. U.S. is held up by many in the poker community as proving poker is a game of skill. Problem is, the case only interpreted an old IRS statute (long-repealed) related to tax treatment of earned v. unearned income. The Baxter decision was also merely a federal district court decision. In short, Baxter has absolutely no precedential value today, and no relevance to the DiCristina suit (in fact, neither side has cited that decision).

If you want to read more about the Baxter case, a lengthier legal analysis can be found here: http://craakker.blogspot.com/2.....rk-or.html

[Francisco d Anconia]

Wyatt: "Didn't you always say gambling's an honest trade?"

Doc: "No, I said Poker's an honest trade. Only suckers buck the tiger. The odds are all on the house."

[Floridian]

"I'm your huckleberry. That's just my game."

[Grand Moff Serious Man]

Ike: What is that now, 8 hands in a row? Son of a bitch, Holliday nobody's that lucky!

Doc: Why Ike, whatever do you mean? Maybe poker is just not your game. I know, let's have a spelling contest!

[Floridian]

Ike: "why don't I wring your scrawny neck!?"

[S.P.]

Just the opposite: Statisticians and "numbers people" have come down squarely on the side of poker being a game of skill.

The Staten Island man who was charged in this case called a ton of academic and other experts as witnesses, and won the first ruling from a Federal judge agreeing that it is skill.

Anybody can get "lucky" on a single hand, but over time the skilled players will always win, because they are bringing hugely sophisticated math, psychology and observation to bear on the random cards dealt.

If I were the defense, I would offer to put the nine justices up against nine pros for a weekend of poker. I guarantee that at least 4 out of 5 of the last players at the table would be pros, probably more like 5 out of 5.

[Agammamon]

Its slightly less a game of chance than, say, Blackjack - far more so than craps.

[S.P.]

Serious poker involves complex math, psychology, strategy, and observation. That's why it's a game of skill. While anyone can get "unlucky" on a given hand, over the course of hundreds of hands skill will win out.

[Downsize DC]

What's more outrageous, that Congress deems it has the Constitutional authority to prohibit this behavior, or that it has the MORAL authority to prohibit this activity between consenting adults?

[John]

The states do. But the feds sure as hell don't, unless the activity involves inter state or international commerce.

[Dances-with-Trolls]

the MORAL authority

Which we all know is the best kind of authority, and best wielded by those who have the weakest claim to it.

[Brian D]

Some people in a given game of poker could have arrived at the table from another state. Ergo, Commerce Clause, plus ipso facto FYTW.

[John]

Maybe. But I doubt the government bothered to allege that much less prove it. The government I am sure is relying on the court thinking that anything that has some downstream effect on inter state commerce is good enough.

[Robert]

No, it's one of those "aggregate effect", "comprehensive scheme" things. Individually illegal gamblers have no effect on interstate commerce, but the aggregate effect of gambling in contravention of state laws will be said to have an effect, even though the state laws are different so there can't be a comprehensive scheme on this federally.

[John]

Yes. that was my point above about growing wheat in your back yard. The case ought to die for commerce clause reasons. But doing that would require giving Wickard its much deserved death. And no way that is going to happen.

[whitemonie]

The real crime here is charging a 5% uncapped rake on each pot.

[Mickey Rat]

In a No Limit Texas Hold 'em tournament that does seem excessive.

[PM]

Doesn't sound like a tournament, sounds like it was ring play. The rake is per pot. In most casinos it's 4-8% and capped at a fixed dollar amount. Usually around $4 depending on limit.

[Byron]

Terminology. It is most certainly not a crime if the participants voluntarily accepted those terms in advance.

[An Innocent Man]

No less a game of skill than fantasy football.

[Byron]

I'd say it's far, far more a game of skill than fantasy football.

[silverfang789]

I say unless it involves being someone robbed, raped or murdered, it's not a crime.

[S.P.]

The main argument for limiting who can run games has generally been that large amounts of cash in an underground setting invites robberies and violence.

But that is as true of convenience stores as poker games?except that by banning so much of the poker being played in this country and driving it under the radar, it makes it harder for hosts to guarantee security.

[PM]

Imagine how you could mitigate those risks by having people play together over a secure network connection with all the money off-site. Oh wait...

[Byron]

This argument is a bit of a red herring. While poker is most certainly a game of skill, that distinction isn't really important. If consenting adults want to get together and gamble their own property/money over any game of pure chance, they should absolutely be free to do so. I'm also sick of this misinterpretation (a la Wickard v. Filburn) that 'regulating' IC means to make rules about. That is patently false. The clear intent of the CC is to prevent unfair tarrifs/barriers/restrictions on trade between the states. It is a very narrowly-intended clause that has been beaten out so thin that it now acts as a cover for all-encompassing federal regulation. It's as if proponents of the argument think the Framers created the CC with the intent of killing the very Federalist system they created in the first place. (SLD, FYTW, law of the land, SCOTUS says, blah fucking blah)

[Grange95]

First, DiCristina is NOT "facing up to five years in prison for hosting poker games in the back of his bicycle shop." He's facing federal prison time because he was running an illegal card game and taking in thousands of dollars in rake. DiCristina even admits the game was illegal under NY state law.

Second, the DiCristina case is purely about statutory interpretation. Specifically, the issue is whether the language of the Illegal Gambling Business Act (IGBA) covers poker, or only more traditional casino-type games (slots, roulette, blackjack etc.). Depending on the analysis of the IGBA language, whether poker is a game of skill or a game of chance may or may not be relevant.

In any event, there is no Commerce Clause issue in play, and no Constitutional issues of any kind have been raised. FWIW, various Commerce Clause and other Constitutional challenges to the IGBA were heard and rejected by SCOTUS and several Federal Circuit Courts of Appeal in cases in the 1970s.

For those interested in the details of the underlying Second Circuit decision, a lengthier legal analysis can be found at: http://www.craakker.blogspot.c.....okers.html

A similar legal analysis of DiCristina's petition for writ of certiorari can be found at: http://craakker.blogspot.com/2.....es-to.html