On Aug. 12, 2012, Judge Jack B. Weinstein declared that poker was a game predominantly of skill and therefore not illegal under the federal Illegal Gambling Business Act (IGBA). The decision was greeted with celebration among advocates of legal poker because of the judge’s stature and because the ruling was right on point.
Weinstein is a senior U.S district judge for the federal district of Eastern New York. His 120-page opinion held that a defendant, Lawrence DiCristina, should not have been charged with violating the IGBA—the federal statute most frequently used against online gambling—for running a couple of Texas Hold ’em tables in his Brooklyn warehouse.
Lobbyists, columnists and poker enthusiasts were sure the case would be followed by other courts and legislators because Weinstein laid out such a cogent and detailed analysis. In fact, the case would be legally binding, at least for courts in the important New York area, once the Court of Appeals affirmed it.
The Court of Appeals did not affirm.
On Aug. 6, 2013, the 2nd Circuit reversed, but not on the grounds that poker was predominantly chance.
The impact of the decision was not devastating, at least in part because it was not understood. Everyone had been celebrating an important federal judge declaring poker legal because it was a game of skill and not gambling—which, in fact, is kind of what Weinstein had declared. So, how could the Court of Appeals reverse but specifically state, repeatedly, that it was not declaring that poker was predominantly chance? It was declaring that poker was, nonetheless, gambling.
To understand the ambiguous impact of the latest DiCristina decision, you have to start with understanding the difference between federal and state laws. The states, through their constitutions, legislators and courts, have always been free to decide for themselves their public policies toward gambling. Utah can ignore what its southern neighbor Nevada is doing.
The federal government, including Congress and the Department of Justice, has always accepted that its role is to support states’ decisions, at least when it comes to gaming. So in 1970, when the states were almost universally prohibitionist in their attitudes toward gambling but were having trouble shutting down illegal operations, Congress enacted IGBA as part of the Organized Crime Control Act. It was designed to give federal prosecutors a new weapon with which to go after the Mob.
The IGBA seems fairly straightforward. It is a violation if five or more people do more than $2,000 in business a day, in violation of a state or local anti-gambling law. In fact, it is a federal felony even if the state would only charge the operators with a misdemeanor.
The first DiCristina decision was the result of good lawyering. The defense counsel, faced with a client who was guilty on the facts, decided to change the law. Federal defenders, with help from the Poker Players Alliance, came up with a new way to interpret the IGBA by reading the statute very carefully.
IGBA has this provision: “‘Gambling’ includes but is 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 lawyers argued that this creates a new standard. To be guilty of violating the IGBA, five or more people have to be conducting games that were illegal under state law and the games had to involve “gambling” under federal law. Weinstein adopted that position.
He held that the forms of gambling listed in the IGBA were not just examples; they created a new federal definition of gambling. Looking at pool-selling, bookmaking, etc., Weinstein ruled that they were all predominantly chance. So, if a game was predominantly skill, it was not gambling under the IGBA, even if it would be gambling under state law.
Although a good lawyer-like argument and ruling, there was only one problem: It was wrong.
Even before Weinstein’s decision was reversed, another federal court openly rejected it. In April 2013, a judge for the U.S. District Court of Guam, with the great name of Frances M. Tydingco-Gatewood, held that the IGBA did not create a new federal definition of gambling. Tydingco-Gatewood was not bound by what Weinstein, another federal trial judge, had ruled. But he could not ignore the decision because he was also faced with a defendant, Wai Kam Ho, who was charged with violating the IGBA by running Texas Hold ’Em games.
Tydingco-Gatewood looked at the same legal sources and arguments as Weinstein. But where Weinstein found the language about “gambling” including pool-selling, bookmaking, etc., as creating an additional barrier for a conviction, Tydingco-Gatewood said those listed were only examples. Congress was not declaring that an operator had to be violating state law and the form of gambling had to be predominantly chance.
The 2nd Circuit, the Court of Appeals below the U.S. Supreme Court, came to the same conclusion. What possible reason could there have been for Congress to create a new federal standard for what constitutes gambling?
The legislative history shows Congress was only trying to give federal prosecutors a way to go after organized crime syndicates that were running illegal gambling operations—illegal under state laws. The law creating the IGBA says so in its name: the Organized Crime Control Act. As with all other federal laws—with only a rare exception—the statute was merely designed to help the states enforce their decisions about what forms of gambling are acceptable. If poker is legal, then running a game is not a federal crime. If poker is illegal under state law and operators in that state are running big games and making at least $2,000 a day from legality of poker, it is a federal crime.
Weinstein held that poker is gambling under New York state law, but the game had too much skill to be gambling under the federal IGBA. Tydingco-Gatewood, and now the 2nd Circuit, has held that if poker is gambling under the local law—New York’s or Guam’s—it does not matter whether it is predominantly skill or chance. The federal IGBA, like every other federal law, looks only to state law to decide if an activity is gambling.
So, we still have a senior federal judge from New York, who heard evidence and wrote a long, thoughtful opinion ruling that poker is predominantly skill. And that should help with future trials.
But, whether the operators of a poker game in a warehouse or online can be charged with a federal crime depends entirely on what the test for gambling is under state laws. In most states, gambling does require that a game be more chance than skill. But in states supposedly like New York, where a game can be more skill than chance and still be gambling, the operators could face federal prosecution if the operation is big enough.