In an opinion in a criminal case on August 21, 2012, US v. Dicristina, Eastern District of New York Judge Jack Weinstein entered a judgment of acquittal against a defendant who had been charged under the federal Illegal Gambling Business Act (IGBA) for operating a poker room out of the back room of a bicycle warehouse. The operator took a 5% rake from each pot, of which 25% was paid to the dealer. The Court found that the operation of a poker business, specificaly Texas Hold'em, even in violation of state law, does not violate the IGBA. Accordingly, although the defendant could be prosecuted under state law, the court found that no federal crime had been committed.
The court's analysis centered on two factors: first, did Congress understand the term "gambling" in the IGBA to include poker when it was enacted, and second, is poker a game predominated by chance. In terms of the construction of the statute, the Court noted that concerns about organized crime was the primary driving force behind the IGBA. The Court looked to the statute's legislative history and concluded that the statute was intended to stop large-scale business operations rather than poker of "sporadic" or "insignificant" proportions. The Court noted that Congress did not apparently engage in a lengthy consideration of the definition of "gambling" or whether poker was within that definition. Most of the discussions surrounding "gambling" during the consideration of the statute centered around numbers games and bookmaking. The Court concluded that it could not have been the intent of Congress to criminalize all state law gambling offenses, because if so, Congress would not have had to include examples of gambling within the statute. Because the Court concluded that a reasonable doubt exists as to whether poker was meant to be included within the scope of the IGBA, the Court applied the rule of lenity and found that the defendant's proposed construction of the statute was more appropriate.
The Court analyzed the question of whether poker was a "game of chance." The Court rejected the defendant's contention that because poker is not house-banked, it should be outside the ambit of a game of chance. But, the Court did conclude that poker players can draw on facility with numbers, knowledge of human psychology, powers of observation, and deception, to win, even if chance has not dealt them the best cards. The Court credited the defendants' expert testimony that better skilled poker players will, in the long run, prevail over less skilled players. As a result, the Court concluded that skill predominates over chance in poker. Given the lack of convincing evidence to the contrary, the Court found that it was required to read the statute narrowly and dismiss the defendant's conviction.