Poker Is A Game of Skill East of Manhattan, Under One Federal Statute
In a 120-page opinion, U.S. District Judge Jack Weinstein ruled in late August that poker is a game of skill – not a game of chance – for purposes of the federal Illegal Gambling Business Act (IGBA), 18, U.S.C. § 1955. In United States v. Dicristina, No. 11-CR-414 (E.D.N.Y.), the veteran and often trailblazing judge largely adopted the analysis of the defendant’s expert (and poker player) Dr. Randal Heeb, ruling that skill predominates over chance. He agreed with Dr. Heeb that statistical analysis showed that skill determines “more than 50% of the outcome in poker in as few as 240 hands.”
The case arose when Lawrence Dicristina was indicted for violating the IGBA by operating a “Texas Hold ‘Em” poker game in the Staten Island warehouse of his electric bicycle business. The IGBA reaches a “gambling business” with five or more persons which remains in “substantially continuous operation” for more than thirty days or has gross revenues exceeding $2,000 in a day. The central statutory definition states that “gambling” includes “but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels, or dice tables, and conducting lotteries, policy, bolita or numbers games.”
Judge Weinstein emphasized that poker is not listed among the banned gambling games in IGBA. He found plausible both the prosecutors’ theory that the statute reaches poker and the defense argument that it does not. With such an ambiguous statutory provision, he concluded, he should apply the “rule of lenity” to construe the statute in the defendant’s favor.
To reach that conclusion, the judge had to accept that skill predominates over chance in determining poker outcomes, a holding based on a blizzard of charts and graphs and calculations of odds and the performance of poker players. Judge Weinstein distinguished poker from other gambling games by pointing out that the majority of poker hands end when a player’s behavior “induces his opponents to fold.” He also found significant the poker player’s ability to read opponents’ behavior.
Judge Weinstein emphasized that his ruling does not disturb the many explicit state law prohibitions on poker as a form of gambling, or other federal statutes that may reach poker either directly or by incorporating state law prohibitions. Even with that limitation, the Dicristina decision provides a boost to poker advocates who have argued for many years that poker is a game of skill, not chance.
