Second Circuit Goes All In, Holds Poker Falls Under IGBA

Lawrence DiCristina hosted Texas Hold'em poker games, in the back room of his business, twice a week from December 2010 to May 2011. He was charged with, and found guilty of, violating the Illegal Gambling Business Act (IGBA), and conspiracy to conduct an illegal gaming business.

Although a jury found DiCristina guilty, the district court dismissed the indictment and acquitted DiCristina. On appeal, the Second Circuit reversed.

What Constitutes Gambling?

The main issue before the court was whether poker fell under the ambit of the IGBA. DiCristina argued that because poker was a game of chance, rather than skill, poker was not prohibited under the IGBA. The court was not persuaded.

The IGBA was enacted as a means to strike at organized crime because of its involvement in illegal gambling. Specifically, the IGBA prohibits the establishment of an illegal gambling business that (1) violates state laws; (2) involves five or more people; and (3) is in business for at least 30 days or makes more than $2,000 in revenue in one day. DiCristina did not contest the second and third prong.

Here, the court had to turn to New York law to determine whether poker was a violation of the NY penal law, and it found that it did. In fact, the parties didn't contest that poker was violated by NY law. DiCristina argued that poker was not listed among the examples of gambling business in the IGBA.

The court noted that the IGBA merely provided examples, and the list was not exhaustive. Furthermore, the court noted that the IGBA doesn't need to prove that poker was a gambling business. The government need only show that poker violated state law, the federal law prohibited the running of a gambling business.

In adopting this reading, the Second Circuit is now in agreement with the Third Circuit. No circuit split here, so it's unlikely the Supreme Court will be addressing this any time soon.

Can You Ante Up?

If you're shaking in you cowboy boots wondering if you can play Texas Hold'em at your kitchen table with friends, you need not worry. The court made clear that Congresses intention was with dealing with large scale gambling businesses.

Related Resources:

• New Jersey Betting on 3rd Circuit to Revive Sports Gambling Law (FindLaw's U.S. Third Circuit Blog)
• NJ Wants to Squash Bookies, 3rd Cir Weighs In (FindLaw's U.S. Third Circuit Blog)
• United States v. Atiyeh (FindLaw's CaseLaw)