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Aug 22 2012

Federal Court Rules Poker is Not “Gambling” Under Federal Law

One of my favorite quotes to use in the lawschool class I teach on Legal Writing comes not from a great judge or a famous legal case. It is from Lewis Carroll’s Alice in Wonderland describing an exchange between Alice and Humpty Dumpty after Alice becomes frustrated that Humpty is misusing common English words:

When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

I use it to emphasize that words in statutes may not have their ordinary meaning and instead mean whatever the statute says they mean or whatever courts have interpreted them to mean. So that before you assume you know what a statute says, you need to examine each and every word used in the section that applies to your case – because you never know!

That’s exactly what federal public defender Kannan Sundaram did in challenging the conviction after trial of his client Lawrence Dichristina. Dichristina was charged under the federal Illegal Gambling Business Act (IGBA). The IGBA was designed to help break up the Mafia which makes a fair penny from illegal gambling operations. But of course, like the Federal RICO law, it gets applied most often against non-Mafia defendants like Dichristina, who ran a small poker room that took a 5% “rake” or commission off of each pot. IGBA 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.” While it lists roulette and dice as gambling activities governed under the law, it does not specifically list poker as one that is covered. Instead, federal prosecutions under IGBA aimed a poker rooms have relied on the catch-all provision of “other games that rely predominantly on chance.” According to the decision in United States v. Dichristina many folks have gotten convicted for poker-related activities under the IGBA but no court “has ruled directly on whether poker constitutes gambling as defined by [the IGBA].”

So Dichritina’s lawyer jumped on the language and presented expert evidence that poker is a game that relies predominantly on SKILL not chance. The defendants’ expert on game theory, Randal Heeb, an economist, statistician and a player in national poker tournaments testified that “Whether or not to bet, whether or not to raise, which player is going to bet zero, let the other person bet and raise after the fact, these are all strategic elements which are the essence of poker, and in that sense there’s nothing analogous to that in a game of chance like betting on a football game or betting on a roll of the dice.” Heeb also testified on how the top poker players in the country win consistently showing that skill usually trumps luck. Heeb, the judge noted testified “that poker falls in between chess, which he characterized as an almost pure game of skill, and roulette, which he characterized as a pure game of chance.”

The judge, Jack Weinstein, of New York’s influential Southern District Court, bought the argument and dismissed the conviction. In his 120 page decision, he highlighted the significance of mastering a word’s definition under the specific statute not its common usage:

The overwhelming majority of cases have assumed, without analysis, that the government need only prove that the business involved gambling as defined by state law, not that the game operated constituted ‘gambling’ as defined” by the Illegal Gambling Business Act…. The government must demonstrate that it is more probable than not that poker is predominated by chance rather than skill,” he said. “It has failed to do so.”

In dismissing the conviction, Weinstein noted that running a poker room is still illegal under NY state law, which includes poker in its definition of gambling. But sentencing under the NY state law is much less harsh than the Federal statute, let’s remember was aimed as tool to put away the John Gottis, Joe Colombos and Lucky Lucianos of the world.

What the case demonstrates is that great trial lawyers never take anything for granted and need to think creatively to attack any avenue that may help their client as Mr. Sundaram did on behalf of his client. It also shows that trial law is (like poker) a game relying predominantly on skill not chance. I’m all in!

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