United States v. Lawrence DiCristina

Court Memorandum, Order, and Judgment


Since games run by the defendant’s business must constitute “gambling” as defined by

the IGBA, it must be determined whether poker falls under that definition of gambling.

As noted above, the IGBA defines “gambling” as “includ[ing] but . . . not limited to poolselling,

bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting

lotteries, policy, bolita or numbers games, or selling chances therein.” 18 U.S.C. § 1955(b)(2).

The list is non-exclusive. Although poker and other card games requiring skill were widely

played when the IGBA was passed, such games are not included in that provision’s list of

gambling activities. See McBoyle, 283 U.S. at 26 (noting that “[a]irplanes were well known in

1919 when this statute was passed, but it is admitted that they were not mentioned in the reports

or in the debates in Congress” in holding that an airplane is not a vehicle).

Yet, the fact that the statute does not explicitly mention poker, in itself, is not conclusive

evidence that that game should not be considered gambling under the IGBA. Cf., e.g., National

Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) (“The fact that [the

Racketeering Influenced Corrupt Organizations Act (RICO)] has been applied in situations not

expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.”);

Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 550 (2008) (“We have repeatedly

refused to adopt narrowing constructions of RICO in order to make it conform to a preconceived

notion of what Congress intended to proscribe.”).

As one court has aptly put it, ‘[n]ot every silence is pregnant.’ In some cases,

Congress intends silence to rule out a particular statutory application, while in

others Congress’ silence signifies merely an expectation that nothing more need

be said in order to effectuate the relevant legislative objective. In still other

instances, silence may reflect the fact that Congress has not considered an issue at

all. An inference drawn from congressional silence certainly cannot be credited

when it is contrary to all other textual and contextual evidence of congressional


Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Illinois Dep’t of Public Aid v.

Schweiker, 707 F.2d 273, 277 (7th Cir. 1983)), abrogated on other grounds as recognized by,

Irizarry v. United States, 553 U.S. 708 (2008).

The defendant points out that “Congress ‘does not, one might say, hide elephants in

mouseholes.’” Bilski v. Kappos, 130 S.Ct. 3218, 3250 (2010) (internal citations and quotations

omitted). The question remains whether poker is an elephant or a mouse under the statute.

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, in

The Memoirs of Sherlock Holmes 1-38 (Random House 2012) (1894).

As a matter of statutory construction, poker must fall under the general definition of

gambling and be sufficiently similar to those games listed in the statute to fall within its

prohibition. See Dauray, 215 F.3d at 262. It does not.

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.

As already noted, the IGBA is not the only tool available for the federal and state

governments to prosecute organized crime involvement in poker games. If the Mafia operates

such a game in an unlawful fashion (such as by also engaging in related loan sharking, extortion,

or money laundering), the organizers and operators can be prosecuted under RICO, 18 U.S.C. §

1962. It is notable that no such evidence was present in this case. Illustrations in the

government’s brief of federal poker prosecutions appear to be for racketeering under that statute.

See Gov’t Mem. of L. in Opp. to Def.’s Rule 29 Mot. 23-25, Doc. Entry 96, July 27, 2012 (citing

Ex. A-G attached to the same memorandum).

Even without the organized crime connection, this defendant’s operations were

necessarily and properly found by the jury to violate New York state gambling laws. He could

have been prosecuted in state court by the Richmond County District Attorneys Office.

The indict

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