Poker’s Patriotic, Not Criminal, Professor Says

MANHATTAN (CN) - A Harvard professor urged the 2nd Circuit to ensure the end to federal prosecution of poker, a "national game" that he said "captures and expresses Americans' pioneering spirit, meritocratic ideals, and entrepreneurial values."

Last year, prosecutors convinced jurors that running a Texas hold 'em parlor made Lawrence Dicristina a criminal, not Captain America.

Overturning Dicristina's conviction, U.S. District Judge Jack Weinstein concluded in a 120-page opinion that the Illegal Gambling Business Act, or IGBA, could not touch poker because it is a game of skill.

At the time, Weinstein invited prosecutors to try their luck with an appeal, and he noted that the 2nd Circuit could reinstate the jury verdict without violating Dicristina's double jeopardy rights.

Prosecutors took the appellate gamble in September.

James McManus, the author of "Cowboys Full: The Story of Poker," submitted an amicus, or friend-of-the-court, brief on Thursday supporting Weinstein's "thorough and well-reasoned opinion."

"Given that poker was enjoyed by a wide segment of American society at the time of the IGBA's enactment, it is unlikely that Congress would have sought to bring it within the ambit of the IGBA and clearer still that if Congress had so intended, it would have expressly referenced poker in the statute," McManus wrote. "The omission of poker from the text of the IGBA, as the district court aptly noted, 'is the dog that didn't bark.'"

Prosecutors insist that the IGBA can take down poker proprietors because of the alleged link between gambling establishments and organized crime.

McManus argued, however, that the difficulty of rigging a poker game actually makes it unappealing to organized crime.

"Poker's decentralized nature also differs from the centralized gambling operations long favored by organized crime," he wrote. "A poker game, while demanding considerable skill to deal, has comparatively low barriers to entry. Moreover, the house is not betting against anyone; its role is simply as the supplier of cards, chips, tables, and venue. For this reason, poker can be - and is - played virtually anywhere by anyone, and organized crime correspondingly has difficulty gaining a toehold."

He said the game has a "far more honorable place in American life" than traditional gambling, noting that several U.S. presidents, from Theodore Roosevelt to Barack Obama, were avid poker players.

"Military generals from Lee, Grant, and Sherman to Pershing and Eisenhower have likewise enjoyed poker and analogized poker tactics, especially bluffs and other ways of disguising the strength of a hand, to battlefield strategy," wrote McManus, who serves on an advisory board at Harvard University's Berkman Center for Internet & Society.

Love of poker also unites often-divided Supreme Court Justices Antonin Scalia and Sonia Sotomayor, he added.

"Whereas traditional forms of gambling have had long-standing associations with criminal syndicates and shady underworlds, poker is a mainstream activity that is enjoyed by Americans from all walks of life," the brief states. "Poker is also inherently social and allows for the exercise of considerable skill, unlike games such as slots or roulette, which depend entirely on chance and lack the tactical elements intrinsic to poker."

In his August 2012 ruling, Weinstein relied on research by an economist, Dr. Randal Heeb, who found expert players beat amateurs far too often for poker to be a game of chance.

"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," Weinstein wrote. "This fact alone was an independent foundation for his opinion that skill predominates over chance in poker."

McManus said poker partly owes its popularity in the United States to its "merit-based nature."

"Poker appears to have found a receptive home in the United States because it offers a level playing field where success is tied predominantly to individuals' skill, with chance playing a far more minor role - and, in any event, no more likely to favor one player than another," the brief states. "From its earliest days, buffalo hunters, printer's assistants, sharecroppers, and freemen of color all played on level footing.

"This egalitarian sentiment endures."

As evidence, McManus cited an editorial by conservative economist Charles Murray of the American Enterprise Institute, who described poker tables as "pure meritocracies."

"When you are outthought and outplayed ... by a skinny 28-year-old wearing a football jersey and with his baseball cap on backward, it is hard to condescend to him because he ... never went to college," Murray wrote in the in The New York Times, according to the brief.

McManus further distinguished poker from games of pure chance by its relatively low stakes.

"Indeed, even on the extremely rare occasions when a player is able to swoop in to a ten-person poker game and proceed to win every player's money, he will be collecting at most nine times his investment, far from the numbers winner who sees a return of 600 times his outlay, ... let alone the 250-million-to-1 payouts awarded to some lottery winners," the brief states.

The appellate battle will have high stakes for Dicristina, who reportedly faced a maximum 10-year sentence before his conviction was vacated.

McManus is represented by Anand Raman with Skadden, Arps, Slate, Meagher & Flom.

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