A United States Federal judge ruled Tuesday that poker is a game of skill, a ruling poker players and fans hope is a step towards the game eventually becoming completely legal in the country. The ruling was enthusiastically welcomed by the Poker Players Alliance (PPA), the grassroots poker advocacy organization that played a major role in shaping the judge’s decision in the case.
The case at hand, United States of America v. Lawrence Dicristina, was heard before Judge Jack Weinstein of the United States District Court for the Eastern District of New York. Dicristina was charged with operating an illegal gambling business, an underground poker game of sorts, which was said to be in violation of the Illegal Gambling Business Act (IGBA) of 1955. He had originally been convicted by a jury, which was instructed that operating a “poker establishment” was illegal under the IGBA.
Fortunately for Dicristina, Judge Weinstein eventually reversed the ruling, agreeing with the defendant’s two-pronged argument. First, he argued that even if poker was deemed to be “gambling” under New York law, it was not necessarily “gambling” according to the IGBA. Second, he defined a “gambling business” as one in which players are competing against the house and that the game offered is predominated by chance, neither of which, he maintained were the case with poker.
The PPA’s lawyers wrote the principal briefs and presented the principal oral arguments and the PPA provided expert witnesses for the defense. After considering everything presented, the judge agreed with the defense. Of note was the definition of “gambling” in the text of the IGBA, which read, “…including, but…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 defense argued that while poker need not be included in that list to be considered gambling, it is nowhere close to the types of games listed. Additionally, poker was a very popular game at the time the law was written, so its omission was purposeful. Wrote the judge:
Both the defendant’s and the government’s interpretations of the statute are plausible. It is unclear from the text and legislative history of the IGBA whether every state gambling offense would permit a federal conviction…It is equally uncertain whether, in enacting the statute, Congress foresaw that poker businesses would be prosecutable under it…In light of these ambiguities, the rule of lenity requires that the defendant’s interpretation be adopted, and his conviction be dismissed. His acts did not constitute a federal crime.
As one might surmise from the above, the rule of lenity states that when dealing with ambiguity in a statute, the government has the burden of proof. Should the government not clearly convince the judge of its side, the “tie” goes to the defendant, in a manner of speaking.
The judge also wrote:
Poker is, for the purposes of this case, an elephant—or perhaps an eight hundred pound gorilla—that Congress would have been unlikely to ignore. 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 its omission from the IGBA. As Sherlock Holmes would describe the clue, it is the dog that didn’t bark.
As for the defendant’s skill argument, Judge Weinstein sided with him, as well:
The average poker player is not so highly skilled as to take advantage of an advanced player’s techniques and knowledge; yet skill, when sufficiently honed, makes the difference between winning and losing in poker. See Fig. 2-3, supra, and accompanying text. As in bridge, the champions who can consistently demonstrate that skill underlies success in the game are few. Dr. Heeb (the defense’s expert witness) has shown persuasively that skilled players will predominated over the less skilled in a relatively short time.
The judge summed it up nicely when he said, simply, “The government must demonstrate that it is more probable than not that poker is predominated by chance rather than skill. It has failed to do so.”
Needless to say, the PPA was thrilled about the ruling, especially considering the deep involvement the group had in the case. In a press release, PPA executive director John Pappas said, “As we worked for years defending players against vague gambling laws, we have patiently waited for the right opportunity to raise the issue in federal court. Today’s federal court ruling is a major victory for the game of poker and the millions of Americans who enjoy playing it.”
