Supreme Court Declines Review of “Gambling is a Game of Skill” Internet Poker Ruling

blogpostpic5-3In September, 2012, we blogged about the federal district court ruling in United States v. DiCristina.  (See Federal Judge Rules “Texas Hold‘em” is Game of Skill, Not “Gambling” Under Illegal Gambling Business Act).  The case involves a defendant arrested and charged with violating the federal Illegal Gambling Business Act  (“IGBA”) for running a game of Texas Hold’em in the back of a warehouse located on Staten Island.  The defendant was found guilty of violating the federal law, but the judge issued a post-verdict judgment of acquittal “[b]ecause the poker played on the defendant’s premises is not predominately a game of chance, it is not gambling as defined by the IGBA. That the statute was targeted at limiting the influence of organized crime, and organized crime groups have operated poker games beginning in the years since its passage, does not retroactively change the statute’s scope.”

However, as we told you in August 2013, a federal appeals court reversed the decision and reinstated the judgment of conviction against the defendant.  (See Federal Appeals Court Reverses the DiCristina Verdict and Finds that Poker Violates the IGBA).  The court ruled that the definition of “gambling” is not at issue in a criminal action brought under the IGBA.  Instead, the court held, “[t]he relevant definition for our purposes is that of an ‘illegal gambling business,’ provided for in 18 U.S.C. § 1955(b)(1), not the definition of ‘gambling’ provided for in § 1955(b)(2).”  The defendant appealed this decision to the United States Supreme Court (See Will the Supreme Court Chime in on the Legality of Poker?).

On February 24, 2014, the Supreme Court declined to hear the appeal.

Impact of Supreme Court Decision

The Supreme Court summarily declined to hear DiCristina’s appeal without issuing an opinion.  Although it is difficult to speculate, the federal appellate court’s decision reinstating the conviction is in accord with numerous federal courts that have rejected the “gambling is a game of skill” argument.  Accordingly, with a lack of a “circuit split” on the question, the Supreme Court likely found no reason to hear the appeal.

Additionally, as we have previously noted, there are a number of bills pending before the United States Congress that may redefine “gambling” under federal law.  (See Newest Federal Online Poker Bill Includes Mandatory Tax).  Most pending federal gambling legislation is limited to online gambling.  As such, the Supreme Court must be aware of the interest in online poker legislation and simply may have opted to allow Congress to decide whether to legalize online poker.

Takeaway and the Effect on Internet Poker

The Supreme Court’s decision regarding DiCristina’s appeal is unlikely to affect the continuing efforts at both the federal and state level to legalize, regulate and tax online poker and other casino games.  Please note that IGBA should not affect the bills that are presently being considered by Congress.

If you are interested in learning more about this topic or pursuing licensure on a state level, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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