On August 21, 2012, the federal district court for the Eastern District of New York, in United States v. DiCristina, No. 11-CR-414, 2012 U.S. Dist. LEXIS 118037 (E.D.N.Y.) (“DiCristina”), set aside Defendant’s conviction under the Illegal Gambling Business Act (“IGBA”), 18 U.S.C. §1955, and dismissed the indictment against him. In doing so, the district court determined that Texas Hold’em poker is not “gambling” under the IGBA’s definition of that term, even if it is gambling under New York law. This holding was based on the district court’s conclusion that Texas Hold’em poker is a game predominated by skill, which was derived from two critical legal conclusions that arose out of the “rule of lenity” – (1) not all violations of state gambling law can serve as the predicate for a violation of IGBA and (2) IGBA’s definition of gambling does not include games predominated by skill.
This paper examines the district court’s decision in DiCristina, particularly its use of the rule of lenity and its determination that poker is a game predominated by skill. In doing so, we look at the background of the case, provide a brief summary of IGBA, discuss the rule of lenity, and examine the court’s analysis related to its determinations that (1) a violation of IGBA occurs only if the alleged gambling activity meets the statute’s definition of “gambling” (in addition to a violation of a state or local gambling law); (2) the gambling defined by IGBA is predominated by chance; and (3) the Texas Hold’em games conducted by Defendant were predominated by skill. The paper concludes with a discussion of some potential impacts of the decision, including some potential impacts on Internet poker.
Defendant and others “operated a poker club in the backroom of a warehouse out of which he conducted a legitimate business.” DiCristina, 2012 U.S. Dist. LEXIS 118037 at *67. About twice a week, Texas Hold’em was played at two tables in the warehouse. Id. The average buy-in ranged from $100 for the 1-2 table to $300 for the 5-5 table. Id. at *68. Five percent of each pot (a “rake”) was paid to the “house,” out of which expenses were paid, including 25% to the dealers.
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