GPWA Times Magazine - Issue 22 - October 2012

COVER STORY “In short, this [decision] is one of the most significant decisions regarding poker and federal law ever rendered. If it is upheld in an appeal, it may mean that offering poker online would not constitute an IGBA violation, regardless of whether poker was a violation of the law of the state in which a player resided.” In the 120-page Memorandum , the court exhaustively examined the legislative history of the IGBA (pp 62-74) and utilized detailed scholarly works (pp 12-47) and various state statutes and poker judicial decisions (pp 47-53) in order to determine whether poker was a skill game. The court also concluded that there was no “money laundering or loan-sharking . . . [or] connection to organized crime” (p 55). What may be most remarkable in the Memorandum analysis of the IGBA’s legislative history would be the court’s emphasis that the IGBA’s purpose in 1970 was to combat organized crime and that poker was not mentioned as a prohibited game (pp 62-74, 99, 107-108). “Scant reference was made to poker. This may be because at the time, Mafia involvements in poker games were limited” (p 73). The Memorandum conclusion states: “Neither the text of the IGBA nor its legislative history demonstrates that Congress designed the statute to cover all state gambling offenses. Nor does the definition of ‘gambling’ include games, such as poker, which are predominated by skill. The rule of lenity (ambiguity) compels a narrow reading of the IGBA, and dismissal of defendant’s conviction” (p 120). This decision is also important insofar as it was based on expert evidence and testimony regarding the role of skill in poker, and held that the nature of poker – as a game of skill or chance – constitutes a question of law for the Court, not a question of fact for a jury. In short, this is one of the most significant decisions regarding poker and federal law ever rendered. If it is upheld in an appeal, it may mean that offering poker online would not constitute an IGBA violation, regardless of whether poker was a violation of the law of the state in which a player resided. The decision is not binding for state or other federal district courts, but may be considered as persuasive by courts facing similar poker issues. Those remaining Black Friday defendants should find the decision most helpful even though it was not in the Southern District of New York. Since the DiChristina decision did not involve online poker, the UIGEA is barely mentioned in the decision. The authors have long maintained that the UIGEA did not criminalize anything new, but only increased penalties for unlawful online gambling and for financial transaction providers of unlawful gambling. It is not uncommon for U.S. courts to examine the legislative history of an ambiguous statute. This practice is not common in other countries. It was not until 1993, for example, that referring to legislative history was permitted by courts to construe a statute of the British Parliament. Readers may wonder why the judge did not dismiss the indictment before the jury trial if poker as a matter of law was not in violation of IGBA. Should the Memorandum decision be overturned by the federal appellate court, it would reinstate the convictions. You can read the DiChristina Memorandum by visiting http://gpwa.org/294. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joseph Kelly , Ph.D., J.D. is Professor of Business Law at SUNY College at Buffalo and an associate of Catania Gaming Consultants. Frank Catania is a senior partner of Catania Gaming Consultants and of counsel to the law firm of Catania & Ehrlich of New Jersey. He may be reached at frank@cataniaconsulting.com “Hmm . . . maybe poker really IS a game of skill!”