ONLINE POKER United States v. DiCristina The federal district court for the Eastern District of New York, 21 August 2012 The federal district court held that Texas Hold'em poker is not 'gambling' as defined in the Illegal Gambling Business Act (IGBA), 18 U.S.C. §1955, based on the court's determination that Texas Hold'em poker is a game predominated by skill. The defendant and others one that (i) is a violation of the law the defendants subjected to them. 'operated a poker club in the of a State or political subdivision in ... This venerable rule not only backroom of a warehouse out of which it is conducted; (ii) involves vindicates the fundamental which he conducted a legitimate five or more persons who conduct, principle that no citizen should be business,' where Texas Hold'em finance, manage, supervise, direct held accountable for a violation of was played at two tables. The or own all or part of such business; a statute whose commands are defendant was 'charged with and (iii) has been or remains in uncertain, or subjected to operating an illegal gambling continuous operation for a period punishment that is not clearly business involving poker games in in excess of thirty days or has a prescribed. It also places the violation of [IGBA] and with gross revenue of $2,000 in any weight of inertia upon the party conspiring to do so.' The single day. 18 U.S.C. §1955(b)(1). that can best induce Congress to government alleged the defendant's IGBA defines 'gambling' as speak more clearly.’ 553 U.S. 507, conduct was illegal under New 'includ[ing] but ... not limited to 514 (2008). York Penal Law §§225.05 and pool-selling, bookmaking, 225.20. Before trial, the Defendant maintaining slot machines, roulette The decision The IGBA's gambling definition moved for the charges to be wheels or dice tables, and dismissed, arguing that the conducting lotteries, policy, bolita The DiCristina Court's analysis government had failed to allege or numbers games, or selling began with a discussion of United that the operation of a poker club chances therein.' The IGBA's States v. Atiyeh, 402 F.3d 354 (3d violated IGBA. The defendant prohibition does not apply 'to any Cir. 2005), which, according to the reasoned that the poker played at bingo game, lottery, or similar court, was the only decision the club - Texas Hold'em - did not game of chance conducted by an addressing whether a violation of constitute 'gambling' under the organisation exempt from tax the IGBA occurs only if there is an IGBA's definition, even if the under' Section 501(c)(3) of the activity that meets the statute's operation of the poker club Internal Revenue Code, 'if no one definition of 'gambling.' The court violated New York law. The court, associated with the organisation concluded Atiyeh was not a after a hearing on the defendant's profits from the receipts of the persuasive authority because the motion and the government's games.' 18 U.S.C. §1955(e). Third Circuit 'did not have the motion to preclude expert benefit of the extensive briefing on testimony, at trial, regarding The rule of lenity the text and history of IGBA whether poker is a game of skill, The rule of lenity provides that available to this court [and] granted the government's motion when a defendant is alleged to have [r]ather than grappling with the and declined to rule on the violated a criminal statute, and the text of the statute itself, [it] relied defendant's motion. statute is ambiguous on its face or on prior decisions which did not At the conclusion of the applies to the defendant, the consider that issue of presentation of evidence at trial, ambiguity should be resolved in interpretation.' The court then the defendant renewed his motion the defendant's favour. As the US proceeded to explain its conclusion to dismiss. When the jury returned Supreme Court explained in that the IGBA requires proof that a verdict against the defendant, the United States v. Bass, 404 US 336, the statutory definition of court ordered additional briefing 347 (1971): '[W]hen choice has to 'gambling' is met, as well as, that a on the defendant's motion and be made between two readings of state gambling law is violated. held a post-trial hearing at which it what conduct Congress has made a The court explained what it heard testimony regarding whether crime, it is appropriate, before we considered to be the two equally Texas Hold'em poker is a game choose the harsher alternative, to plausible views regarding the predominated by skill. require that Congress should have functionality of the definition of spoken in language that is clear,' gambling in the IGBA. Based on IGBA and thus 'ambiguity concerning the text of the IGBA, §1955(b)(2) The IGBA provides: 'Whoever the ambit of criminal statutes could serve two distinct purposes. conducts, finances, manages, should be resolved in favour of First, as advocated by the supervises, directs, or owns all or lenity.' In 2008, in United States v. defendant, it could limit what part of an illegal gambling Santos, the Supreme Court re- kinds of state gambling crimes business' commits a crime.’ 18 affirmed this principle: ‘The rule of would trigger IGBA liability by U.S.C. §1955(a). The IGBA defines lenity requires ambiguous criminal providing an independent federal an 'illegal gambling business' as laws to be interpreted in favor of definition of gambling. Second, as 14 E-Commerce Law Reports - volume 12 issue 05
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