All Aces for Poker in Gambling Law Challenge

BROOKLYN, N.Y. (CN) - A maverick federal judge ordered prosecutors to fold their indictment against the owner of a poker establishment because the card game is one of skill.

With nearly half a century on the bench, 90-year-old U.S. District Judge Jack Weinstein built his careeron bold and controversial stands against the harsh punishments for addiction-related crimes, from drug abuse to child pornography. The judge generally favors psychological treatment over incarceration for both those offenses, a position gaining increasing popularity among his colleagues.

On Tuesday, Weinstein found that the long arm of federal gambling laws cannot reach poker lovers. The 120-page order notes that "poker has a long history in the United States," and "has been embraced by many of our political leaders and other public figures.

Quoting a 2004 Supreme Court decision, Weinstein noted: "For example, 'Justice Douglas was a regular at President Franklin Roosevelt's poker parties; Chief Justice Vinson played poker with President Truman.'"

"Driven in part by the Internet, which allows for online poker playing, and cable television, which frequently broadcasts poker tournaments, the game has surged in popularity in recent years," Weinstein added. "In 2006, 8,773 players entered the 'main event' in the World Series of Poker, the most prestigious poker tournament in the United States, and more than 44,500 players participated in the tournament at large."

Weinstein's treatise sets the stage for the appeal of Lawrence Dicristina, who was convicted of running an illegal gambling business that catered to the Texas Hold 'em poker game.

The appeal turns over whether the Illegal Gambling Businesses Act, or IGBA, proscribes poker in its prohibition of "pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances."

In finding poker a game of skill, Weinstein heeded the testimony of Dr. Randal Heeb, an economist who testified for the defense.

Summarizing Heeb's arguments, the judge wrote: "Bluffing, raising, and folding require honed skills to maximize the value of the cards dealt by Lady Luck."

Later, Weinstein added: "Position at the table and the habits of fellow players must be taken into account to play successfully."

The ability of certain players to make a steady living particularly impressed the judge.

"According to Dr. Heeb, 'many people make a living playing poker and win consistently over time' whereas 'it is impossible to make a living and to win consistently playing casino games such as roulette' where chance predominates," the order states. "This fact alone was an independent foundation for his opinion that skill predominates over chance in poker."

Indeed, Weinstein added, "the most skillful professionals earn the same celestial salaries as professional ball players."

The government's expert, whom Weinstein described as "well-qualified econometrician" Dr. David DeRosa, posited that one could theoretically reap the same fortunes by flipping a coin.

"But, while Dr. Heeb showed that the same poker players would consistently come out on top in the play of a new set of multiple hands of poker, this consistency could not be demonstrated in a new set of coin tossers by the same tossers," the order states.

The order includes several pages of charts the experts submitted depicting the fortunes of top poker players versus unskilled ones, and simulated results of hypothetical coin-tossing tournaments.

One chart shows that "highly skilled" players trounce unskilled counterparts up to 99 percent of the time when 3,000 games are played.

Nevertheless, Heeb admitted an element of chance existed.

"He acknowledged that poker falls in between chess, which he characterized as an almost pure game of skill, and roulette, which he characterized as a pure game of chance," the order states.

Admitting that his ruling might trouble legislators worried about the overlap between gambling and organized crime, Weinstein found that state laws would be able to target mob-influenced rackets.

"In poker games controlled by the Mob, a violation of state gambling laws would permit federal prosecution under the Racketeer Influenced and Corrupt Organizations Act (RICO)," the order states. "Even if the gambling business is not Mob-controlled - as it was not in this case - New York State gambling laws would permit prosecution in state court."

Weinstein indicated that prosecutors could still try their luck on an appeal.

"A reversal of this decision and reinstatement of the jury verdict by the Court of Appeals for the Second Circuit would not violate the defendant's Double Jeopardy rights," the order concludes.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit