US v. Elie et. al.

Reply Memo ISO Motion to Dismiss re Bank Fraud


In an attempt to tell a story that Mr. Elie and the Poker Companies engaged in a conspiracy to deceive banks about voluntary transactions by the banks’ customers, from which the banks profited, the Government makes every effort to cast them as members of a shadowy conspiracy. This description blinks reality. The Poker Companies never concealed the fact that they offered poker games to U.S. residents and despite the Government’s insistence that banks would never knowingly process poker-related transactions, the Indictment alleges they knowingly did. As the Government is well aware, the industry repeatedly sought to resolve any legal ambiguities with Government officials, including federal regulators. But the Government ignores all of this as it reaches beyond the facts of the Indictment in an effort to retroactively justify this prosecution. The Government’s characterization of poker as an unlawful, underground game is even more cavalier. Poker is an American cultural institution, and has been enjoyed by “presidents,

congressmen, justices, generals, captains of industry, and ordinary Americans for two centuries now.” James McManus, Cowboys Full: The Story of Poker 403 (2010). Today, more than 55 million Americans play poker, and approximately 15 million of those played real-money online poker. See Poker Player’s Alliance, Poker Facts, (last visited

Nov. 16, 2011). But the Government skips past all of this in an effort to portray the game of poker as a crime—a form of gambling no different from bookmaking. Even as it presses prosecutions and

billion-dollar forfeitures under a theory sustainable only if poker is “plainly” gambling throughout the country, it has acknowledged as “[i]ndusputabl[e]” that “there is skill involved in poker.” The reality is that poker is not some inherent unlawful activity such that transactions involving poker are somehow malum in se. Other counts involve efforts to stretch the text of federal statutes. The wire and bank fraud count rests on efforts to ignore well-established circuit precedent and bedrock principles of criminal law. It is not enough to dupe someone into a profitable transaction she might otherwise wish to avoid. It is also not enough simply to parrot the words of the statute and call it a day. As explained further below, the fraud count must be dismissed.

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Reference Info:Legal Memoranda: Motion Addressed to Pleadings | Federal, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ian Imrich, Law Offices of Ian J. Imrich, APC | Attorney Advertising

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