On June 19, 2013, the U.S. Court of Appeals, Second Circuit, heard oral arguments in the case U.S. vs Lawrence DiCristina. Having reserved its decision at the time, today their opinion was published and the decision of the District Judge, Jack Weinstein, to set aside the jury verdict, was reversed by the appellate court.
Lawrence DiCristina was charged with operating an illegal gambling business by running a Texas Hold’em poker game in a warehouse in Brooklyn, New York. Weinstein had allowed the district court case to proceed to verdict, having denied DiCristina’s motion to dismiss based on testimony regarding the significance on the skill vs chance argument of Texas Hold’em Poker. Following a guilty verdict for violations of the Illegal Gambling Business Act of 1970 (IGBA) and conspiracy to violate IGBA, DiCristina renewed his motion to dismiss and after reconsideration, Jusge Weinstein ruled that the jury verdict be set aside, finding that Texas Hold’em Poker was not covered by IGBA by virtue of the skill of the game predominating over chance.
The government filed a timely appeal in the Second Circuit and the courts opinion was released today. The complete opinion can be seen here.
The appellate court found that DiCristina’s argument, in part, relied on whether the IGBA statutory definition of gambling would apply, that the defense “improperly conflates the important distinction between gambling, which is not prohibited by the IGBA, and operating a gambling business, which is prohibited by the IGBA”.
They also found that the wording of the final adopted statute did not include the narrow definition of gambling that was present in an earlier version. The court further found that the canon of ejusdem generis (with respect to the definition of gambling) had no place in the arguments because such a rule would only apply when there is an uncertainty as to the meaning of a clause in the statute.
The court found the IGBA statute requires only three requirements to have been met, and that they were:
(b) As used in this section –
(1) “illegal gambling business” means a gambling business which
(i) is a violation of the law of a State or political
subdivision in which it is conducted;
(ii) involves five or more persons who conduct, finance,
manage, supervise, direct, or own all or part of such business;
(iii) has been or remains in substantially continuous
operation for a period in excess of thirty days or has a gross
revenue of $2,000 in any single day
The court did not address the findings of the skill vs. chance argument, having found that because the three above requirements had been met, such findings were not necessary. The court ruled that the decision of the district court shallbe reversed, that the district court find Lawrence DiCristina convicted of both charges and proceed to sentencing.
It is still unclear what might happen next. The defense may proceed to further appeals, ie to request a rehearing en banc, in which all justices of the appellate court hear the appeal instead of a panel of three, or eventually ask the appeal to be heard by the Supreme Court of the United States.
Diamond Flush Poker will bring updates as they become available.