Key Legal Opinion Holdings:
1. Poker is Predominated By Skill Rather than Chance.
2. Poker is Not Gambling Under IGBA.
On December 9, 2011, defendant Lawrence Dicris-tina was charged in a second superseding indictment with operating an illegal gambling business involving poker games in violation of the IGBA (Count Two) and conspiring to do so (Count One). See Second Superseding Indictment, Doc. Entry 25, Dec. 9, 2011. He initially pled guilty to Count Two, the substantive IGBA offense. See Tr. of Guilty Plea, Doc. Entry 40, Dec. 12, 2011. At his sentencing hearing, [*10] he moved to withdraw his plea. Doc. Entry 50, May 1, 2012. The plea was with-drawn, and a trial date was set.
Defendant Lawrence Dicristina was charged with op-erating an illegal gambling business involving poker games in violation of the Illegal Gambling Business [*3] Act (IGBA), 18 U.S.C. § 1955, and conspiring to do so. See Second Superseding Indictment, Doc. Entry 25, Dec. 9, 2011. The type of poker alleged and proved to have been played in defendant's establishment was "Texas Hold'em," a game described in Part II(B)(1), in-fra. When reference is made to "poker" in this memorandum, this is the variant of poker referred to.
Mr. Dicristina moved to dismiss the indictment on the grounds that a poker room does not fall under the definition of an illegal gambling business proscribed by the federal statute because poker is predominately a game of skill rather than chance. Def.'s Mot. to Dismiss the Indictment, Doc. Entry 69, June 29, 2012. He also contended that whether poker is a game of chance or skill is a mixed question of law and fact to be determined by the jury. Id.
Because the poker played on the defendant's prem-ises 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 be-ginning in the years since its passage, does not retroac-tively 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 prose-cute 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 [*177] 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.
Key Legal Conclusion:
Neither the text of the IGBA nor its legislative his-tory demonstrate that Congress designed the statute to cover all state gambling offenses. Nor does the definition of "gambling" include games, such as poker, which are predominated by skill. The rule of lenity compels a nar-row reading of the IGBA, and dismissal of defendant's conviction.