The Poker Players Alliance filed an amicus brief responding to the Justice Department’s assertions that a district court erred in granting defendant Lawrence DiCristina’s motion to dismiss a previous indictment for conspiring to operate an illegal poker club in New York.
An amicus brief is presented by someone who hopes to influence the outcome of a lawsuit but who is not involved in the lawsuit itself.
In the Second Circuit U.S. Court of Appeals, the DOJ is arguing that the district court misinterpreted the Illegal Gambling Business Act as creating a definition of gambling.
"Gambling for purposes of the IGBA should simply mean wagering on an uncertain outcome, and poker should be included within that definition," a U.S. district attorney argued in the appeal.
In overturning DiCristina’s conviction last August, longtime judge Jack Weinstein of the U.S. District Court for the Eastern District of New York made the first federal ruling that poker is a game of skill.
Although not representing DiCristina directly, the PPA and attorney Tom Goldstein played a key role in the victory by assisting him in drafting briefs to the district court and presenting oral argument that the IGBA does not apply to poker.
The DOJ is focusing its appeal on the issue of whether poker should be included under the IGBA. This is a big deal because no federal law clearly designates poker as illegal. It has been a gray area for a long time. Confirmation by the circuit court that the IGBA does not apply to poker will strengthen the argument that poker is not illegal under federal law, while an overturn decision would give the DOJ justification to continue using the IGBA to attack poker in the future. The IGBA was one of the laws the DOJ cited in the Black Friday indictments.
Also filing amicus briefs in favor of DiCristina were poker player and author James McManus, and a joint filing by poker players Mike Sexton, Greg Raymer, Jonathan Little and Vanessa Selbst.
It’s unclear whether the circuit court will comment on the skill argument. The government now admits that skill predominates over chance in poker, though the government does note that expert testimony in the earlier case stated that it could take hundreds of hands for skill to prevail and there is no requirement that someone play that many hands as opposed to getting lucky and winning a big pot.
If the circuit court doesn’t address the skill argument, Judge Weinstein’s language on the issue could continue to be used as precedent but wouldn’t carry much strength.
"It would be infinitely better if we could get approval on the skill argument," Goldstein said. "Judge Weinstein’s ruling if left unappealed doesn’t get you very much because it doesn’t bind anyone. If we really want to make a difference, we have to get a ruling from the court of appeals."
The PPA argues that the skill in poker separates it from all other games that are explicitly mentioned in the IGBA. The DOJ states that sports betting, which is included in the law, also has a skill element.
To that assertion, Goldstein counters: "Every sports bettor who hopes to consistently make money with a bookmaker must make better predictions than a professional oddsmaker — a feat that the typical bettor can accomplish only by luck, and therefore not consistently. But in poker, the players compete in a fair contest against opponents of comparable skill."
The PPA also notes poker’s distinct place in American history and culture, stating this matters because Congress would not have targeted poker without even mentioning it.
This is exactly the sort of case for which Goldstein teamed up with the PPA. He provides the organization with someone who has experience arguing in front of courts of the highest level. Over the past 15 years, Goldstein has argued 28 cases before the U.S. Supreme Court. He is publisher of the website www.SCOTUSblog.com.
"Tom is just an absolutely great ally," said Patrick Fleming, director of the PPA’s litigation support network, who operates a private practice specializing in criminal defense and civil rights litigation in New Hampshire. "Tom is well recognized as one of the best appellate lawyers in the U.S. His experience is tough to match. To have him working for us is an incredible benefit."
Goldstein was introduced to the PPA by Ken Adams, a leading antitrust lawyer who has volunteered his services to the PPA in the past. Adams had played with Goldstein in an office game among attorneys in Washington, D.C.
"There’s a clique of pretty influential attorneys here in D.C. who play poker," said PPA executive director John Pappas. "We kind of lucked out to be able to tap into that network of poker-playing attorneys."
Goldstein began playing poker in 2005, one of the many people intrigued by the TV boom that came from ESPN’s coverage of the World Series of Poker. He hosted games at his law firm. He spent 2006 to 2010 as a partner at Akin Gump Strauss Hauer and Feld, and is currently a partner at Goldstein and Russell. He never got into playing online, but there was a time when he would go up to Atlantic City to play fairly often.
"I’m a big believer in the skill versus chance question," Goldstein said. "I really think this has been a national pastime. I think putting people in jail for playing poker is not what legislation intended. I think poker is completely different from gambling. I’m a true believer. It’s great to be able to mix your personal passions with your professional ones."
Next up in the DiCristina case will be the government’s response to DiCristina’s brief and the amicus briefs on April 29, with oral arguments likely to be scheduled for the summer.