Poker ruled a skill-based game and not "gambling" under IGBA federal statute
In U.S. v DiCristina, a federal judge today ruled that poker is a game of skill & not illegal gambling as defined by IGBA! PPA provided an amicus brief and expert witnesses. Check out the ruling at http://www.scribd.com/doc/103482098/...ion-08-21-2012
Highlights from Judge Weinstein’s Opinion:
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. See Part VI, infra. It is equally uncertain whether, in enacting the statute, Congress foresaw that poker businesses would be prosecutable under it. See Part VII, infra.
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.
While questions of burdens of proof generally apply to factual matters, the rule of lenity, in essence, places a burden of proof on the government with respect to statutory interpretation. In order to prevail, the government must show that it is more probable than not that the meaning that it relies upon is the appropriate interpretation of the statute. A state of equipoise on the issues requires favoring the defendant’s view. See id. at 513-14 (stating that, where two competing definitions of a critical statutory term are equally plausible, “the tie must go to the defendant”). The government bears the burden of proving by a preponderance standard any factual propositions that underlie its interpretation of the statute.
Scant reference was made to poker. This may be because, at the time, Mafia involvement in poker games
was limited. United States v. Roselli, 432 F.2d 879, 886 n.8 (9th Cir. 1970) (noting that poker is not “traditionally associated with organized crime”).
The addition of a separate definition of gambling in a distinct section of the IGBA in the final version of the statute suggests a design adopting a distinct federal definition of gambling. No explanation for this change could be found in the legislative record.
The text, structure, and history of the IGBA fail to satisfactorily establish that the government is correct in its interpretation of the statute. Because “a reasonable doubt persists about a statute’s intended scope,” the rule of lenity applies. Moskal, 498 U.S. at 108; see also Part IV(B), supra. The defendant’s narrower, more persuasive construction is adopted.
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. See generally Sir Arthur Conan Doyle, Silver Blaze, inThe Memoirs of Sherlock Holmes 1-38 (Random House 2012) (1894).
Contrary to the government’s argument, chance (as compared to skill) has traditionally been thought to be a defining element of gambling and is included in dictionary, common law, and other federal statutory definitions of it. See Part V(A)(2)-(3), (B), supra. 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. While a gambler with an encyclopedic knowledge of sports may perform better than others when wagering on the outcome of sporting events, unlike in poker, his skill does not influence game play. A sports bettor is better able to pick a winning team, but cannot make them win. In poker, by contrast, increased proficiency boosts a player’s chance of winning and affects the outcome of individual hands as well as a series of hands. 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.
Whether the ambiguities in the statute are the result of inadequate drafting or of a conscious choice, born of political compromise, to leave issues for the courts to resolve, they must be construed in favor of the defendant. Under either the definition of gambling as proposed by the defendant or that proposed by the plaintiff:
[A]ll provisions of the federal . . . statute are coherent; no provisions are redundant; and the statute is not rendered utterly absurd. From the face of the statute, there is no more reason to think that [one definition is more correct than the other]. Under a long line of our decisions, the tie must go to the defendant.
Santos, 553 U.S. at 514 (plurality op.). In order to constitute an illegal gambling business under the IGBA, as at common law, the business must operate a game that is predominately a game of chance.
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.
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 has shown persuasively that skilled players will predominated over the less skilled in a relatively short time.
The rule of lenity places the burden of proof on the government. It has failed to show that it is more likely than not that chance predominates over skill in poker. Dr. Heeb’s studies and conclusions are found to be accurate and persuasive by this court, which heard andanalyzed all the evidence. Even were the expert testimony to have left the court in a state of equipoise, the rule of lenity requires that it find in favor of the defendant.
Because the poker played on the defendant’s premises is not predominately a game of chance, it is not gambling as defined by the IGBA. That the statute was targeted at limiting the influence of organized crime, and organized crime groups have operated poker games beginning in the years since its passage, does not retroactively change the statute’s scope. “The statute should not be extended . . . simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used.” McBoyle, 283 U.S. at 27.
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.