Poker is a game of skill that is not covered under the federal Illegal Gambling Business Act, Eastern District Judge Jack Weinstein ruled.
Weinstein (See Profile) reversed the jury conviction of Lawrence Dicristina and found that, as a matter of law, Congress did not clearly intend to criminalize poker when it passed the act. Part of the judge's reasoning was that poker games, in this case Texas Hold'em, are not purely games of chance.
"Bluffing, raising and folding require honed skills to maximize the value of the cards dealt by Lady Luck," Weinstein said in United States v. Dicristina, 11-CR-414.
In a 120-page decision, Weinstein noted that New York courts have long considered that poker contains a sufficient element of chance to constitute gambling under state laws, N.Y. Penal Law §225.00(2). But the federal law is ambiguous as to whether it federalizes state gambling offenses, he said.
"It is unclear from the text and legislative history of the Illegal Gambling Business Act, whether every state gambling offense would permit a federal conviction," Weinstein said. "It is equally uncertain whether, in enacting the statute, Congress foresaw that poker businesses would be prosecutable under it."
Therefore, the judge said he was applying the rule of lenity, which holds that ambiguous criminal laws are to be interpreted in favor of the defendant subjected to them.
Weinstein rejected the interpretation of the government that the federal act's definition of gambling should be as inclusive as possible because the law was intended as a weapon against organized crime, for which illegal gambling is a principle source of revenue.
Dicristina and two others allegedly ran a poker game out of a New York warehouse on Mondays and Thursdays. Players were given free food and drink by waitresses and a 5 percent "rake" for the house was collected by the dealers from each pot. Other than the games, the judge said, there was no allegation of other illegality or any connection with organized crime.
Weinstein held a pretrial hearing on Dicristina's motion to dismiss, but delayed judgment on the motion until after the jury verdict in July. Dicristina was convicted of two counts of violating the gambling act, 18 U.S.C. §1955.
The Illegal Gambling Business Act criminalizes the running of an "illegal gambling business" defined as one that "(i) is a violation of the law of a State…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."