NY appeals court reinstates poker convictionBy LARRY NEUMEISTER , Associated Press
Aug. 6, 2013 2:11 PM ET
NEW YORK (AP) — A federal appeals court reinstated the gambling conviction Tuesday of a man who operated an underground poker club, saying a lower-court judge had erred when he concluded the conviction could not stand because poker was more a game of skill than chance.
The 2nd U.S. Circuit Court of Appeals in Manhattan said sentencing should proceed for Lawrence DiCristina, who was convicted under a law created to stop organized crime from operating gambling dens. DiCristina and others between December 2010 and May 2011 had operated a poker club in the back room of a Staten Island warehouse where he also sold electric bicycles. The twice-a-week games of Texas Hold 'em at two tables were advertised by word of mouth and text messages. No crimes were alleged besides playing illegal poker games.
Last year's decision by U.S. District Judge Jack Weinstein in Brooklyn to toss out the 2012 conviction had been greeted enthusiastically by those advocating the legalization of Internet poker in the United States. Weinstein seemed to give their argument fuel when he concluded that because "the poker played on the defendant's premises is not predominantly a game of chance, it is not gambling" as defined in the federal law.
The appeals court, however, said in a unanimous ruling written by Judge Chester J. Straub that it was not necessary to consider whether poker was mostly a game of skill or chance to decide the case.
It said all that mattered was that the games violated New York state law, involved five or more people who conducted or managed the business, that it existed for more than a month and had a gross revenue of $2,000 in any single day.
"Thus, the question of whether skill or chance predominates in poker is inapposite to this appeal," the court said.
It also noted that legislators when the law was passed had been careful to create requirements that "would exclude the typical friendly game of poker."
The court case dealt with traditional, face-to-face games of Texas Hold 'em, though the appeals court said it did not need to specify what game of poker was at stake to reach its conclusions.
Dicristina's attorneys did not immediately respond to comment requests.
When he ruled, Weinstein had cited research, including a study that analyzed 103 million hands of Texas Hold'em poker, where 75 percent of poker hands ended when one player induced his opponents to fold so that no cards were revealed.
"Other studies have found that skilled players defeated unskilled players both in simulations and in real-world play," he said.