[JURIST] A judge for the US District Court for the Eastern District of New York [official website] ruled Tuesday that a poker game operator could not be tried under a federal gambling law essentially because poker is more a game of skill than a game of chance. Judge Jack Weinstein wrote in a 120-page judgment [order, PDF] that the Illegal Gambling Business Act (IGBA) [Cornell LII materials] does not apply to the poker room operated in a warehouse owned by Lawrence Dicristina, from which Dicristina took five percent of each night’s pot for covering costs and for his own profit. New York law recognizes poker as a form of gambling [NYT report], but no federal court had ever ruled on the subject. Before trial Discristina moved to dismiss the indictment, but on the basis of pretrial arguments and expert testimony the court instructed the jury that poker games fall under the purview of the IGBA, and Dicristina was subsequently convicted both of operating an illegal gambling business involving poker games and of conspiracy to do so. Post-verdict Dicristina renewed his motion for a judgment of acquittal, arguing that the nine games listed under the IGBA definition of “gambling” limits which state gaming laws trigger prosecution under the IGBA, and because poker is not explicitly listed in the IGBA his poker room does not constitute a “gambling business” under the statute’s definition. The government argued that the plain language of the statute does not limit the types of games covered, and that any gambling activity that is illegal under state law is “gambling” under the IGBA.

Both the defendant’s and the government’s interpretations of the statute are plausible. It is unclear from the text and legislative history of the IGBA whether every state gambling offense would permit a federal conviction. … It is equally uncertain whether, in enacting the statute, Congress foresaw that poker businesses would be prosecutable under it. … In light of these ambiguities, the rule of lenity requires that the defendant’s interpretation be adopted, and his conviction be dismissed. His acts did not constitute a federal crime.

Weinstein vacated the jury verdict and dismissed the original indictment. Dicristina would have faced up to 10 years in prison.

In December the Department of Justice (DOJ) [official website] clarified its stance on online gambling [JURIST report] in a memorandum opinion holding online non-sports related gambling that crosses state or international borders is not covered by the Wire Act of 1961 [text]. In November New Jersey passed Public Question 1 [JURIST report] by a 65 percent margin, amending the New Jersey constitution [text] to legalize sports gambling, but earlier this month professional and college sports leagues filed a lawsuit against the state [JURIST reports] seeking to enjoin the law as a violation of the federal Professional and Amateur Sports Protection Act (PASPA) [text]. In 2010 the Washington Supreme Court [official website] ruled that a state ban on online gambling [JURIST report] is constitutional. That month the EU Court of Justice (ECJ) [official website] delivered three judgments striking down gambling restrictions [JURIST report] in Germany because the regulations were not designed to protect public interest. However the ECJ upheld a Swedish law restricting Internet gambling [JURIST report].