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Judge in Texas Hold 'Em case: Poker's not gambling

A hand of poker, which a New York

A hand of poker, which a New York judge has said relies more on skill than chance, thus overturning a Staten Island man's conviction for illegal gambling. Credit: iStock

A Brooklyn federal judge ruled on Tuesday that skill plays a bigger role than chance in poker, vacating the conviction of a Staten Island man charged with running Texas Hold 'Em games in violation of the federal Illegal Gambling Business Act.

"Expert poker players draw on an array of talents, including facility with numbers, knowledge of human psychology, and powers of observation and deception," U.S. District Judge Jack B. Weinstein wrote. "Players can use these skills to win even if chance has not dealt them the better hand."

The 120-page ruling, which Weinstein described as the first of its kind, was based on extensive statistical evidence and testimony from experts, and included both an exposition on the history and popularity of poker and a series of multicolored graphs illustrating poker probabilities.

It erased the conviction of Lawrence DiCristina, who was found guilty by a jury in July of running a twice-weekly poker club in a warehouse in which waitresses plied the players with drinks and the house took a 5 percent "rake" from each pot.

Weinstein said illegal poker businesses could still be prosecuted under New York State laws, which require showing only that chance is a "material" factor in the outcome. But he said the federal gambling-business statute requires that chance "predominate" over skill, and is directed at games like numbers and roulette.

Poker is not a game of "pure skill," such as chess, Weinstein wrote, but is comparable to golf, in which chance -- a bad bounce, a change in weather -- might have an effect, but is not controlling. He said professional poker players' ability to make a living off the game as well as analysis of thousands of hands from poker websites show that skill is critical.

"An amateur may get a 'lucky shot,' or benefit from 'the luck of the draw,' and defeat an expert player in a single or even a few instances," the judge noted. "Nevertheless, across a series of games . . . the influence of skill becomes obvious and overwhelming."

DiCristina's lawyer, Kannan Sundaram, said Weinstein's ruling could encourage pro-poker challenges under other gambling statutes, a view that was echoed by the Poker Players Alliance, a group supporting legalization of Internet poker that submitted a friend of the court brief in the case.

"As the judge's opinion aptly notes, poker is an American pastime that is deeply embedded in the history and fabric of our nation and his decision sets aside the notion that vague laws render the game criminal," said John Pappas, executive director of the group. The alliance is headed by lobbyist and ex-Sen. Alfonse D'Amato.

A spokesman for U.S. Attorney Loretta Lynch said prosecutors were reviewing the opinion.

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