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Is poker more a game of skill? 2nd Circuit says question need not be answered to uphold conviction

Posted Aug 7, 2013 10:22 AM CDT
By Debra Cassens Weiss

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A federal appeals court has reinstated the conviction of a man who ran an underground poker club, saying his business is illegal under federal law even if the game involves more skill than luck.

The New York-based 2nd U.S. Circuit Court of Appeals reinstated the conviction of Lawrence DiCristina in an opinion (PDF) issued on Tuesday. How Appealing links to the opinion (PDF) and to stories by Reuters, the Associated Press and the New York Post.

U.S. District Judge Jack Weinstein had set aside DeCristina’s conviction, saying that poker didn’t constitute illegal gambling under federal law because it is predominated by skill rather than chance. But the 2nd Circuit said the federal statute bans the act of running a gambling business that is illegal in the state in which it is conducted. The parties did not dispute that poker constitutes gambling under New York law, the court said.

Under the federal statute, the gambling business is not illegal unless it is conducted by five or more people, and it either operated for more than 30 days or earned more than $2,000 in one day.

Those elements make clear that the focus of the statutory ban “is not on what game is being played, but on the size of the business and the revenue derived by those who are running it,” the 2nd Circuit said. “The question of whether skill or chance predominates in poker is inapposite to this appeal.”

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