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.