Brief And Special Appendix For The United States

7/28/2019 Brief And Special Appendix For The United States

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12-3720To Be Argued By:

NATHAN D. REILLY

United States Court of AppealsFor the Second Circuit

UNITED STATES OF AMERICA,

Appellant,

against

LAWRENCE DICRISTINA,

Defendant-Appellee,

STEFANO LOMBARDO, also known as MITZIE,

Defendant.

On Appeal From The United States District Court

For The Eastern District of New York

BRIEF AND SPECIAL APPENDIXFOR THE UNITED STATES

d

LORETTA E. LYNCH,United States Attorney,

Eastern District of New York.DAVID C. JAMES,

MARISA MEGUR SEIFAN,NATHAN D. REILLY,

Assistant United States Attorneys,Of Counsel.

Case: 12-3720 Document: 22 Page: 1 12/20/2012 800060 176


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . iii

PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 2

JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . 2

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 4

A. The Motion to Dismiss and the Daubert Hearing.. . . . 4

B. Trial.. . . . . . . . . . . . . . . . . . . . . . . . 6

C. Post-Trial Briefing and Proceedings.. . . . . . . . . 7

D. The Memorandum and Order. . . . . . . . . . . . . . . 9

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

THE DISTRICT COURT ERRED INGRANTING DICRISTINAS MOTION. . . . . . . . . . . . . . . . . 14

A. Legal Standards.. . . . . . . . . . . . . . . . . . 14

1. Standard of Review.. . . . . . . . . . . . . . 14

2. Statutory Scheme.. . . . . . . . . . . . . . . 14

B. 1955(b)(2) Does Not Define Gamblingfor Purposes of the IGBA. . . . . . . . . . . . . . 16

C. The District Courts Definition ofGambling Is Unduly Narrow.. . . . . . . . . . . . 18

1. Legislative History. . . . . . . . . . . . . . 22

2. Sports Betting.. . . . . . . . . . . . . . . . 29

3. Other Federal Statutes.. . . . . . . . . . . . 33



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C. The Interpretative Aids Invoked by theDistrict Court Do Not Support its Definitionof Gambling.. . . . . . . . . . . . . . . . . . . 35

1. The Rule of Lenity.. . . . . . . . . . . . . . 35

2. Common Law.. . . . . . . . . . . . . . . . . . 38

3. Ejusdem Generis. . . . . . . . . . . . . . . . 40

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 43



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TABLE OF AUTHORITIES

CASES

Abbott v. United States,131 S. Ct. 18 (2010). . . . . . . . . . . . . . . . . . . . 35

In re Advisory Opinion to the Governor,856 A.2d 320 (R.I. 2004). . . . . . . . . . . . . . . . . . 26

Ali v. Fed. Bureau of Prisons,552 U.S. 214 (2008).. . . . . . . . . . . . . . . . . . . . 42

Barber v. Thomas,130 S. Ct. 2499 (2010). . . . . . . . . . . . . . . . . . . 35

CSX Transp., Inc. v. Alabama Dept. of Revenue,131 S. Ct. 1101 (2011). . . . . . . . . . . . . . . . . . . 40

City of New York v. Permanent Mission of India to United Nations,618 F.3d 172 (2d Cir. 2010).. . . . . . . . . . . . . . 41, 42

Commonwealth v. Dent,992 A.2d 190 (Pa. Super. 2010). . . . . . . . . . . . . . . 26

Cooper Distrib. Co. v. Amana Refrig., Inc.,63 F.3d 262 (3d Cir. 1995). . . . . . . . . . . . . . . . . 41

DePierre v. United States,131 S. Ct. 2225 (2011). . . . . . . . . . . . . . . . . . . 35

Duncan v. Walker,533 U.S. 167 (2001).. . . . . . . . . . . . . . . . . . . . 11

Emerson v. Townsend,73 Md. 224 (1890).. . . . . . . . . . . . . . . . . . . . . 26

Garono v. State,524 N.E.2d 496 (Ohio 1988). . . . . . . . . . . . . . . . . 26

Garrett v. Alabama,963 So. 2d 700 (Ala. Crim. App. 2007).. . . . . . . . . . . 26

Ianelli v. United States,420 U.S. 770 (1975).. . . . . . . . . . . . . . . . . . . . 27

Joker Club LLC v. Hardid,643 S.E.2d 626 (N.C. Ct. App. 2007).. . . . . . . . . . . . 26



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Jones v. United States,526 U.S. 227 (1999).. . . . . . . . . . . . . . . . . . . . 33

Liparota v. United States,471 U.S. 419 (1985).. . . . . . . . . . . . . . . . . . 36, 38

Muscarello v. United States,524 U.S. 125 (1998).. . . . . . . . . . . . . . . . . . . . 36

People v. Mitchell,444 N.E.2d 1153 (Ill. App. Ct. 1983). . . . . . . . . . . . 26

People v. Turner,629 N.Y.S.2d 661 (N.Y. Crim. Ct. 1995). . . . . . . . . . . 26

Ramirez v. City Demonstration Agency,549 F.2d 97 (9th Cir. 1976).. . . . . . . . . . . . . . . . 41

Smith v. United States,508 U.S. 223 (1993).. . . . . . . . . . . . . . . . . . . . 29

State ex rel Schillberg v. Barnet,488 P.2d 255 (Wash. 1971).. . . . . . . . . . . . . . . . . 26

State v. Duci,151 Ariz. 263 (1986). . . . . . . . . . . . . . . . . . . . 26

State v. Schlein,253 Kan. 205 (1993).. . . . . . . . . . . . . . . . . . . . 26

Taniguchi v. Kan Pacific Saipan, Ltd.,132 S. Ct. 1997 (2012). . . . . . . . . . . . . . . . . . . 18

Town of Mount Pleasant v. Chimento,2012 WL 5870814 (S.C. Nov. 21, 2012). . . . . . . . 21, 26, 39

Union Bank v. Wolas,502 U.S. 151 (1991).. . . . . . . . . . . . . . . . . . . . 29

United States v. Aguilar,515 U.S. 593 (1995).. . . . . . . . . . . . . . . . . . . . 40

United States v. Angiulo,897 F.2d 1169 (1st Cir. 1990).. . . . . . . . . . . . . . . 18

United States v. Aquino,336 F. Supp. 737 (E.D. Mich. 1972). . . . . . . . . . . . . 24



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United States v. Atiyeh,402 F.3d 354 (3d Cir. 2005).. . . . . . . . . . . . . . 10, 17

United States v. DiCristina,__ F. Supp. 2d __, 2012 WL 3573895 (E.D.N.Y. 2012). . . passim

United States v. Farris,624 F.2d 890 (9th Cir. 1980). . . . . . . . . . . . . . . . 24

United States v. Gotti,459 F.3d 296 (2d Cir. 2006).. . . . . . . . 10, 13, 17, 20, 21

United States v. Harris,959 F.2d 246 (D.C. Cir. 1992).. . . . . . . . . . . . . . . 29

United States v. Hunter,478 F.2d 1019 (7th Cir. 1973).. . . . . . . . . . . . . . . 18

United States v. Kaczowski,114 F. Supp. 2d 143 (W.D.N.Y. 2000).. . . . . . . . . . . . 18

United States v. Migi,329 F.3d 1085 (9th Cir. 2003).. . . . . . . . . . . . . . . 41

United States v. Mine Workers,330 U.S. 258 (1947).. . . . . . . . . . . . . . . . . . . . 33

United States v. Reitano,862 F.2d 982 (2d Cir. 1988).. . . . . . . . . . . . . . . . 18

United States v. Rieger,942 F.2d 230 (3d Cir. 1990).. . . . . . . . . . . . . . . . 17

United States v. Roselli,432 F.2d 879 (9th Cir. 1970). . . . . . . . . . . . . . . . 29

United States v. Sacco,491 F.2d 995 (9th Cir. 1974). . . . . . . . . . . . . . . . 23

United States v. Stewart,590 F.3d 93 (2d Cir. 2009). . . . . . . . . . . . . . . . . 14

United States v. Tarter,522 F.2d 520 (6th Cir. 1975). . . . . . . . . . . . . . . . 17

United States v. Useni,516 F.3d 634 (7th Cir. 2008). . . . . . . . . . . . . . . . 18



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United States v. Velastegui,199 F.3d 590 (1999).. . . . . . . . . . . . . . . . . . . . 36

Utsler v. Territory,10 Okla. 463 (1900).. . . . . . . . . . . . . . . . . . . . 39

STATUTES

18 U.S.C. 1955. . . . . . . . . . . . . . . . . . . . . passim

25 U.S.C. 2703. . . . . . . . . . . . . . . . . . . . . . . 35

Ariz. Rev. Stat. 13-3301. . . . . . . . . . . . . . . . . . 20

Ark. Code 5-66-112. . . . . . . . . . . . . . . . . . . . . 26

Cal. Pen. Code 337j.. . . . . . . . . . . . . . . . . . . . 26

Conn. Gen Stat. 53-278a.. . . . . . . . . . . . . . . . . . 26

Fla. Stat. 849.085. . . . . . . . . . . . . . . . . . . . . 26

Haw. Rev. Stat. 712-1220. . . . . . . . . . . . . . . . . . 20

Idaho Code 18-3801. . . . . . . . . . . . . . . . . . . . . 26

Idaho Const. Art III 20(2). . . . . . . . . . . . . . . . . 26

720 Ill. Comp. Stat. 5/28-1.. . . . . . . . . . . . . . . . 20

Indian Gambling Regulatory Act,25 U.S.C. 2701, et seq.,. . . . . . . . . . . . . . . . . 34

Iowa Code 99B.11. . . . . . . . . . . . . . . . . . . . . . 26

La. Rev. Stat. Ann. 14:90.. . . . . . . . . . . . . . . . . 20

N.J. Stat. Ann. 2C:37-1.. . . . . . . . . . . . . . . . . . 20

N.Y. Penal Law 225.00.. . . . . . . . . . . . . . . 15, 16, 20

National Gambling Impact Study Commission ActPub. L. No. 104-169, 110 Stat. 1482 (1996)(codified at 18 U.S.C. 1955 notes). . . . . . . . . . 33, 34

Okla. Stat. 21 941. . . . . . . . . . . . . . . . . . . . . 26



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Or. Rev. Stat. 167.117. . . . . . . . . . . . . . . . . 20, 26

Pub. L. No. 91-452, 84 Stat. 922 (1970).. . . . . . . . . . . 24

Pub. L. No. 104-169, 110 Stat. 1482 (1996). . . . . . . . . . 33

Tenn. Code Ann. 39-17-501.. . . . . . . . . . . . . . . . . 26

Wis. Const. Art IV, 24(6)(c). . . . . . . . . . . . . . . . 26

LEGISLATIVE MATERIALS

116 Cong. Rec. 590 (daily ed. Jan. 21, 1970). . . . . . . . . 27




Hearing on S.30 and Related Bills before Subcomm. No. 5of the H. Comm. on the Judiciary,91st Cong. 2d Sess. (May 21, 1970).. . . . . . . . . . . . 25

Illegal Gambling Business Control Act of 1969,S. 2022, 91st Cong., 1st Sess. 201. . . . . . . . . . . . 22

Report of the Senate Judiciary Committee,S. Rep. No. 91-617, 91st Cong., 1st Sess. (Dec. 18 1969).. 27

MISCELLANEOUS

American Heritage Dictionary of the English Language(1st ed. 1969). . . . . . . . . . . . . . . . . . . . . . 19

Blacks Law Dictionary (9th ed. 2009).. . . . . . . . . . . . 18

Anthony Cabot & Robert Hannum,Poker: Public Policy, Law, Mathematics, and the Futureof an American Tradition,22 T.M. Cooley L. Rev. 443 (2005).. . . . . . . . . . . . . 38

Garrett Downing, Career Sports Bettors Battle theBetting Line, Las Vegas Sun, Mar. 30, 2009. . . . . . 30, 32



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The Gambler, 60 Minutes(CBS television broadcast Jan. 16, 2011).. . . . . . . 31, 32

Anthony Holden, Bigger Deal: A Year Inside the Poker Boom

(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 28

James McManus, Cowboys Full: The Story of Poker (2009). . . . 39

Merriam-Webster Online Dictionary (July 27, 2012).. . . . . 39-40

Office of the Attorney General of the State of New York,Formal Opinion No. 84-F1, N.Y., Op. Att'y Gen. (1984). . . 30

President's Commission on Law Enforcement &Administration of Justice,The Challenge of Crime in a Free Society (1967).. . . . . 27

Roget's International Thesaurus (3d ed. 1962).. . . . . . . . 21

The Random House College Dictionary (rev. ed. 1980). . . . . 19

Scott Van Voorhis, Profs Back Online Poker,Boston Herald, Oct. 22, 2007.. . . . . . . . . . . . . . . 30

Webster's New Collegiate Dictionary (1976).. . . . . . . . . 19

Webster's Third New International Dictionary (1966).. . . . . 19



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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 12-3720

UNITED STATES OF AMERICA,

Appellant,

- against -

LAWRENCE DICRISTINA,

Defendant-Appellee.

STEFANO LOMBARDO, also known as MITZIE,

Defendant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR THE UNITED STATES

PRELIMINARY STATEMENT

The United States appeals from a Memorandum, Order and

Judgment entered August 21, 2012 in the United States District

Court for the Eastern District of New York (Weinstein, J.), which

granted the motion of the Defendant-Appellee Lawrence DiCristina to

dismiss the second superseding indictment and vacated DiCristinas

conviction for operating and conspiring to operate an illegal poker

club, in violation of 18 U.S.C. 1955 and 371. See United States



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v. DiCristina, __ F. Supp. 2d __, 2012 WL 3573895 (E.D.N.Y. 2012).

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is invoked pursuant to 18

U.S.C. 3731. The district court had jurisdiction pursuant

18 U.S.C. 3231. Timely notice of appeal was filed on September

19, 2012.

QUESTION PRESENTED

Whether the district court erred in ruling that wagering

on poker is not a form of gambling for purposes of the Illegal

Gambling Business Act (IGBA), 18 U.S.C. 1955.



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STATEMENT OF THE CASE

On December 9, 2011, a grand jury sitting in the Eastern

District of New York returned a two-count second superseding

indictment against DiCristina and Stefano Lombardo. (GA 4, 10-

15). The defendants were charged with operating and conspiring to1

operate an illegal poker club, in violation of 18 U.S.C. 1955

and 371.

Lombardo and DiCristina both pleaded guilty on December

12, 2011. Lombardo was sentenced to four years of probation. On

May 1, 2012, DiCristina was permitted to withdraw his guilty plea.

Jury selection was set for July 2, 2012 and a trial date was set

for July 9, 2012. On June 29, 2012, DiCristina moved to dismiss

the second superseding indictment on the grounds, inter alia, that

poker did not constitute gambling under the IGBA. (GA 5). The

district court reserved decision on the motion.

On July 12, 2012, the jury found DiCristina guilty on

both counts. After the verdict was returned, DiCristina renewed

his motion to dismiss the second superseding indictment in the form

of a motion for a judgment of acquittal. (GA 7). Following

additional briefing, on August 21, 2012, the district court issued

a Memorandum, Order and Judgment which dismissed the second

superseding indictment and vacated DiCristinas conviction.

GA, SPA and T refer to the governments appendix, the1

special appendix and the trial transcript, respectively. DErefers to entries on the district courts docket sheet.



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STATEMENT OF FACTS

The charges against DiCristina arose from his operation

of an illegal poker game in a warehouse in Staten Island, New York

between December 2009 and May 2010.

A. The Motion to Dismiss and the Daubert Hearing

On June 29, 2012, DiCristina moved to dismiss the second

superseding indictment on the grounds that (a) the government must

prove not only that the defendants poker business was an illegal

gambling operation under New York State law but also that poker

falls within the IGBAs definition of gambling; and that

(b) poker did not constitute gambling as defined in the IGBA.

(GA 7). On July 3, 2012, the Poker Players Alliance filed an

amicus brief in support of DiCristinas motion to dismiss.

(DE 74). In addition, DiCristina moved to qualify Randal Heeb,

Ph.D., an econometrician and accomplished poker player, as an

expert to testify at trial.

On July 5, 2012, the government filed its response to the

defendants motion to dismiss and moved to preclude the testimony

of Dr. Heeb. (DE 76). The defendant filed a reply to the

governments motion on July 6, 2012. (DE 78).

On July 6, 2012, the court held a Daubert hearing in

which Dr. Heeb, who was then participating in a poker tournament in

Las Vegas, Nevada, testified by video conference. Dr. Heeb

recounted the results of a study he had performed of 415 million



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hands of No-Limit Texas Holdem poker (the same variety of poker

played at DiCristinas club) that had been played on the Internet.

(GA 109-10, 136). Based upon that analysis, Dr. Heeb concluded

that skill predominates over chance in poker. (GA 113). His

study involved two principal analyses. First, Dr. Heeb found that

players who were more successful (i.e., won more money) betting

with a particular combination of cards were also more successful

betting with other combinations of cards. (GA 119-21). Second, he

used a regression analysis to construct a skill index for one

group of poker players and found that it correctly predicted the

results achieved by a second group of players. (GA 126-28). He

also determined that, the more hands of poker that are played, the

more often skilled players predominated over unskilled players.

(GA 128-30). Specifically, he found that, after 900 hands of poker

(equivalent to approximately 30 hours of play (GA 339)), the more

skilled players achieved more successful results than the less

skilled players 90 percent of the time. (GA 129, 140). Dr. Heeb

testified that his results were consistent with other published

studies. (GA 135-36). He concluded that poker fell on a continuum

between pure games of skill, such as chess, and pure games of

chance, such as roulette. (GA 139-40).

On cross-examination, Dr. Heeb acknowledged that a more

skilled poker player could lose a hand to a less skilled player

even when the odds favored the more skilled player. (GA 152-53).



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He conceded that poker definitely is a game which has an element

of chance. (GA 153). He also acknowledged that his opinion about

the role of skill in poker depended upon playing a large number of

hands, such as in a tournament, while informal cash games had no

minimum number of hands and players in such games could leave

whenever they wanted. (GA 161-62). Thus, in a cash game, a less

skilled but lucky player could leave the game after winning a hand

and come out ahead of a more skilled player. (GA 162-66).

At the conclusion of the hearing, the district court

ruled that Dr. Heeb would not be permitted to testify at trial

because whether poker constituted gambling under Section 1955 was

a legal question for the court. The district court reserved

decision and the case proceeded to trial. (GA 178-79).

B. Trial

At trial, the government presented evidence that

DiCristina operated a casino-style poker room out of a warehouse in

Staten Island which also housed an electric-bicycle business that

he owned. The government presented testimony from two cooperating

witnesses, Joseph Monteleone and Deborah Berardi, who had

previously pleaded guilty to violations of the IGBA for their roles

in running or working at illegal poker games. (T 26-67, 144-54,

171-87). These witnesses testified about witnessing DiCristina

running the poker operations. The government also introduced the

testimony of an undercover New York City Police Department



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detective who had gambled in DiCristinas game as well as

undercover video taken by the detective. In that video, DiCristina

could be seen describing himself as the operator of the poker game

and describing how long the game had been running. Finally, the

government introduced evidence seized, pursuant to a search

warrant, from DiCristinas warehouse including playing cards, poker

chips and gambling ledgers that reflected the amount that gamblers

and the house made on a given night.

During the trial, the jury was instructed that poker

constituted gambling under the IGBA. (GA 205, 208). On July 11,

2012, the jury convicted the defendant on both counts. After the

verdict, the defendant renewed his motion to dismiss the second

superseding indictment in the form of a motion for a judgment of

acquittal. The court reserved decision on the defendants motion

pending the submission of additional briefing.

C. Post-Trial Briefing and Proceedings

On July 27, 2012, the government filed its response to

the defendants motion for acquittal (DE 96) and on July 30, 2012,

the defendant filed his reply. (DE 97). In its response, the

government sought leave to submit expert evidence. The district

court granted this application. (DE 98). The government filed

its expert report prior to the hearing which was held on August 10,

2012. (GA 221-47).

At the hearing, the government called Dr. David DeRosa,



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a professor of financial engineering at Columbia University and

owner of a consulting company that does research into capital

markets. While acknowledging that player skill plays some role in

poker, he disputed Dr. Heebs conclusion that poker was more a game

of skill than of chance. Among other things, he argued that skill

at poker should be defined as winning money, and yet Dr. Heebs

analysis showed that almost all poker players lose money. (GA 256-

58). He also asserted that, under Dr. Heebs analysis, youve got

to play a preposterous number of hands in order to have any

confidence of winning and that, for players who played a smaller

number of hands, chance was always a major factor. (GA 258-59).

As Dr. DeRosa observed, in poker theres no requirement that you

have to play forever. Its not like a game of golf where you have

to play all 18 holes. Its not like a game of tennis where you

have to play three sets. You can drop out any time you want.

(GA 274). Dr. DeRosa raised other challenges to Dr. Heebs

methodology and conclusions that need not be detailed because they

are not at issue on this appeal. (See, e.g., GA 234-36, 239, 260-

63). Dr. Heeb was also present at the hearing, and the court

permitted the two experts to engage in a lengthy dialogue with one

another. (GA 316-55).

On August 13, 2012, DiCristina submitted a supplemental

expert report (GA 358-68), and on August 17, 2012, DiCristina filed

the legislative history for the IGBA at the request of the court



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(DE 106). On August 17, 2012, the government responded to

DiCristinas supplemental expert report (GA 369-81) and the

defendant replied on August 20, 2012 (GA 382-89).

D. The Memorandum and Order

In his papers, DiCristina contended that the IGBA limits

the types of gambling businesses that are illegal under federal law

to those that not only are illegal under state law but also involve

activities that are similar to the nine games listed in subsection

(b)(2) of the IGBA. DiCristina further contended that to qualify2

as similar to the enumerated activities, the games must be

predominated by chance and be housebanked. He concluded that

because poker is neither, his conduct did not violate the IGBA.

On the other hand, the government argued that the plain

language of the statute does not limit the types of activities that

are prohibited beyond the requirement that the gambling business

violates state gambling law. Further, even assuming that

subsection (b)(2) of the IGBA creates an independent element of the

statute that must be satisfied, poker is gambling as contemplated

by that subsection. Specifically, the government argued that poker

constitutes a game of chance because, while the skill of a player

may influence the outcome of a given hand, the outcome of the bets

that poker players make on the cards is principally governed by

Those games are pool-selling, bookmaking, maintaining2

slot machines, roulette wheels or dice tables, and conductinglotteries, policy, bolita or numbers games.



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events beyond the bettors control. In this respect, the

government noted, poker shares many similarities with sports

betting, conduct which is explicitly identified as gambling

within the meaning of subsection (b)(2).

On August 21, 2012, the district court issued a 120-page

opinion that granted DiCristinas motion. (SPA 1-120). The court

extensively reviewed the history of the game of poker, the experts

testimony on whether poker is predominately a game of chance or

skill, case law, the legislative history, other reports pertaining

to gambling and other federal gambling statutes. (SPA 11-53, 62-

92).

The district court acknowledged that the Third Circuit

had interpreted the IGBA consistently with the governments

position in United States v. Atiyeh, 402 F.3d 354, 372 (3d Cir.

2005). (SPA 92-94). However, the district court rejected this

decision as not persuasive because the Third Circuit did not

have the benefit of the extensive briefing on the text and history

of the IGBA available to this court. (SPA 93). The district

court also acknowledged that the overwhelming majority of cases

have assumed, without analysis, that the government need only prove

that the business involved gambling as defined by state law, not

that the game operated constituted gambling as defined by the

IGBA. (SPA 94-95). Among the cases that the court identified as

making this assumption was this Courts decision in United States



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v. Gotti, 459 F.3d 296, 340-42 (2d Cir. 2006). The district court

further acknowledged that IGBA had repeatedly been used to

prosecute defendants for operating games not enumerated in

1955(b)(2), including poker. (SPA 95, 103-04).

The court opined that both the government and the defense

had advanced plausible interpretations of 1955(b)(2) and that

neither interpretation violated the cardinal principle of

statutory construction that a statute ought, upon the whole, to

be so construed that, if it can be prevented, no clause, sentence,

or word shall be superfluous, void, or insignificant. (SPA 98)

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). The court

further found that the legislative history did not clearly favor

either partys interpretation. (SPA 99-100). Nevertheless,

applying the rule of lenity, the court adopted the defendants

interpretation that 1955(b)(2) was intended to create a federal

definition of gambling. (SPA 100-01).

The court noted that Congresss failure to include poker

and other card games like pinochle, gin rummy, and bridge among

the games listed in 1955(b)(2) was significant given that such

games were so widely played by law-abiding individuals in non-

criminal settings. (SPA 102). The court reasoned that, as a

result of the ambiguities in the federal definition of gambling,

governing criteria must be derived by determining what common

characteristics unifies the games listed in 1955(b)(2) into a



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cohesive group. (SPA 104-05).

It rejected the defendants contention that a relevant

characteristic of the games listed in 1955(b)(2) was that they

were housebanked, finding no evidence that Congress considered

that factor. (SPA 109). However, relying on the alleged common-

law definition of gambling and on the statutory interpretation

maxim of ejusdem generis, it agreed with the defendants contention

that [i]n order to constitute an illegal gambling business under

the IGBA, as at common law, the business must operate a game that

is predominately a game of chance. (SPA 112).

Finally, the district court agreed with the defendants

expert that poker was predominately a game of skill and held that

the poker played on the defendants premises ... is not gambling

as defined by the IGBA. (SPA 119). The court accordingly ordered

that the second superseding indictment be dismissed and that

DiCristinas conviction be vacated.



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SUMMARY OF ARGUMENT

The district court erred in granting DiCristinas motion.

The court misinterpreted 18 U.S.C. 1955(b)(2) as creating a

definition of gambling. In fact, the IGBA does not contain a

definition of gambling and that term should therefore be defined

based upon its ordinary meaning, i.e., as wagering on an uncertain

outcome. Moreover, even if gambling is defined as a game of

chance, that phrase should be given a broad and nontechnical

meaning as used by this Court in United States v. Gotti, 459 F.3d

296, 340-42 (2d Cir. 2006), which meaning includes poker. That

conclusion is supported by the IGBAs legislative history, the

inclusion of bookmaking as one of the activities expressly covered

by the IGBA and by definitions of gambling in other federal

statutes.

The interpretative aids cited by the district court do

not lead to a contrary result. The rule of lenity is inapplicable

because the statute is not sufficiently ambiguous and because the

courts interpretation does not advance the purposes of the rule of

lenity. The common law is not sufficiently uniform to support the

district courts definition. Finally, the ejusdem generis maxim

cannot properly be applied to 18 U.S.C. 1955(b)(2), and even if

it could, it would not support the district courts interpretation.



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ARGUMENT

THE DISTRICT COURT ERRED INGRANTING DICRISTINAS MOTION

In the district court, the parties disputed a range of

issues raised by DiCristinas motion, including whether there is a

federal definition of gambling at all under the IGBA and whether

skill predominates over chance at poker. On this appeal, the

government seeks review of whether, even accepting that there is a

federal definition of gambling under the IGBA and assuming for

purposes of this appeal that skill predominates over chance at

poker, poker nevertheless constitutes gambling under the IGBA.

As set forth below, gambling for purposes of the IGBA should simply

mean wagering on an uncertain outcome, and poker should be included

within that definition.

A. Legal Standards

1. Standard of Review

The Court reviews a district courts legal conclusions,

including those interpreting the meaning of a statute, de novo.

See United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009).

2. Statutory Scheme

The IGBA makes it illegal to conduct[], finance[],

manage[], supervise[], direct[], or own[] all or part of an illegal

gambling business. 18 U.S.C. 1955(a). Subsection (b) provides

definitions of the relevant terms:

(b) As used in this section --



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(1) illegal gambling business means agambling business which --

(i) is a violation of the law of a

State or political subdivision inwhich it is conducted;

(ii) involves five or more personswho conduct, finance, manage,supervise, direct, or own all orpart of such business; and

(iii) has been or remains insubstantially continuous operationfor a period in excess of thirtydays or has a gross revenue of

$2,000 in any single day.

(2) gambling includes but is not limited to pool-selling, bookmaking, maintaining slot machines,roulette wheels or dice tables, and conductinglotteries, policy, bolita or numbers games, orselling chances therein.

(3) State means any State of the United States,the District of Columbia, the Commonwealth ofPuerto Rico, and any territory or possession of theUnited States.

Subsection (e) excludes from the statutes prohibitions any bingo

game, lottery, or similar game of chance conducted by a tax-exempt

organization (emphasis added).

New York Penal Law 225.00(2) defines gambling as the

staking or risking of something of value upon the outcome of a

contest of chance ... upon an agreement or understanding that [the

individual] will receive something of value in the event of a

certain outcome. A contest of chance is defined as a game ...

in which the outcome depends in a material degree upon an element

of chance, notwithstanding that skill of the contestants may also



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be a factor therein. N.Y. Penal Law 225.00(1). As the district

court recognized, poker qualifies as a contest of chance under

these definitions. (SPA 6-7) (citing New York state cases).

B. 1955(b)(2) Does Not Define Gamblingfor Purposes of the IGBA

The district court looked to 1955(b)(2) to establish a

federal definition of gambling for purposes of the IGBA based upon

the common characteristics that unif[y] the games listed in

1955(b)(2) into a cohesive group. (SPA 104-05). That

interpretation of 1955(b)(2) is untenable. Subsection (b)(2)

merely contains a non-exhaustive list of examples of gambling

activities introduced by the phrase includes but is not limited

to. This language contrasts with the definition of illegal

gambling business in 1955(b)(1) and the definition of State in

1955(b)(3) both of which are prefaced by the verb means and

set forth the characteristics of the term they are defining so as

to exclude activities or entities that do not have the stated

characteristics.

Moreover, if Congress had intended to define gambling in

1955(b)(2) to mean a game of chance or a game where chance

predominates over skill, it could easily have made such a

requirement express. Significantly, 1955(e) expressly refers to

game[s] of chance conducted by charities in creating exceptions

to the statute. Thus, Congress plainly knew how to include such

language in the statute when it wished to do so.



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For these reasons, 1955(b)(2) should not be interpreted

to create a definition of gambling for the IGBA. To be sure, the

examples listed in 1955(b)(2) are relevant to the meaning of

gambling for purposes of the IGBA because no definition of gambling

that would exclude any of them could be correct. But they are

merely examples of gambling and should not be read to exclude other

activities from the reach of the statute.3

Notably, the only court of appeals that has directly

addressed the issue rejected the defendants argument that

1955(b)(2) creates a federal definition of gambling that

precludes prosecution for an activity not listed in that

subsection. See United States v. Atiyeh, 402 F.3d 354, 372 (3d

Cir. 2005) (holding that becoming a custodian of funds that were

wagered or to be wagered, which was illegal under Pennsylvania law,

could be prosecuted as an illegal gambling business under the

IGBA). Other courts, including this one, have upheld convictions

under the IGBA for gambling activities not listed in 1955(b)(2),

including poker. See, e.g., United States v. Gotti, 459 F.3d 296

(2d Cir. 2006) (operating electronic joker-poker machines);

United States v. Rieger, 942 F.2d 230 (3d Cir. 1990) (operating

high stakes poker operation); United States v. Tarter, 522 F.2d 520

As explained in the section on the IGBAs legislative3

history, infra, these examples were included in the statute becausethey were games that Congress believed provided the most lucrativesources of gambling revenue for organized crime at the time thestatute was passed.



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(6th Cir. 1975) (same); United States v. Angiulo, 897 F.2d 1169

(1st Cir. 1990) (receiving profits from a high stakes poker

operation); United States v. Reitano, 862 F.2d 982 (2d Cir. 1988)

(rough-and-tumble blackjack); United States v. Useni, 516 F.3d 634

(7th Cir. 2008) (bingo). Indeed, the district court cited no case

interpreting this 40-year-old statute, nor is the government aware

of any, in which a court held that the government failed to prove

an offense under the IGBA because the activity in question did not

satisfy a purported definition of gambling in 1955(b)(2).4

C. The District Courts Definition ofGambling Is Unduly Narrow

Where, as here, a term is not defined in a statute, it

should be given its ordinary meaning. Taniguchi v. Kan Pacific

Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012). As the district court

noted (SPA 60-61), dictionaries give varying definitions of the

terms gamble and gambling. Some dictionaries broadly define

gambling as [t]he act of risking something of value, esp. money,

for a chance to win a prize. Blacks Law Dictionary 748 (9th ed.

The district court cited two cases that implied that the4

government must prove that the business ran games that also

constituted gambling as defined by the IGBA. (SPA 95) (citingUnited States v. Hunter, 478 F.2d 1019, 1021 n.2 (7th Cir. 1973),and United States v. Kaczowski, 114 F. Supp. 2d 143, 152 (W.D.N.Y.2000)) (emphasis added). However, neither of these cases providedany analysis of the issue, and, as the district court itselfapparently recognized, neither case actually held that thegovernment could not show a violation of the IGBA unless theconduct violated a purported definition of gambling in 1955(b)(2).



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2009); see also, e.g., Websters New Collegiate Dictionary 471

(1976) (defining gamble as to bet on an uncertain outcome or

to play a game for (as money or property).). Other dictionaries,

however, also include as one alternative definition to play at any

game of chance for stakes. The Random House College Dictionary

542 (rev. ed. 1980).5

However, it would read too much into the phrase game of

chance in some dictionaries to interpret it with the kind of

mathematical precision used by Dr. Heeb, in which the respective

roles of chance and skill are determined by conducting

sophisticated statistical analyses of voluminous data. A game of

chance can simply mean a game where chance plays some role in the

outcome, whether or not it predominates over skill. Indeed,

several state statutory definitions are consistent with that

understanding. For example, as noted before, New York defines a

contest of chance as a game ... in which the outcome depends in

a material degree upon an element of chance, notwithstanding that

Dictionaries that the government has found that predate5

the enactment of the IGBA do not differ materially from the onescited by the district court. See American Heritage Dictionary of

the English Language 294 (1st ed. 1969) (defining gamble as 1.a.To wager; bet money on the outcome of a game, contest or otherevent. b. To play a game of chance.); 1 Websters Third NewInternational Dictionary 932 (1966) (defining gamble as 1a: toplay a game of chance for money or other stakes b: to wager moneyor other stakes on an uncertain outcome (as of a horse race or anathletic game) and gambling as 1: the act or practice ofbetting: the act of playing a game and consciously risking money orother stakes on its outcome).



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skill of the contestants may also be a factor therein. N.Y. Penal

Law 225.00(1). As the district court recognized, that definition

includes poker. (SPA 6-7) (citing cases). Other state statutes

have similar definitions of game of chance or otherwise define6

gambling to include activities that involve some degree of

chance, whether or not chance plays a predominant role in the

outcome.7

This broader, nontechnical meaning of game of chance is

consistent with this Courts decision in Gotti. In that case, a

defendant challenged his conviction under 1955 for conducting a

gambling operation using electronic joker-poker machines.

Specifically, the defendant contended that joker-poker machines

were not illegal gambling devices under New York law because, inter

alia, the games in question were games of skill rather than

See, e.g., Haw. Rev. Stat. 712-1220(3) (Contest of6

chance means any contest, game, gaming scheme, or gaming device inwhich the outcome depends in a material degree upon an element ofchance, notwithstanding that skill of the contestants may also bea factor therein.); N.J. Stat. 2C:37-1(a) (similar); Or. Rev.Stat. 167.117(6) (similar).

See, e.g., Ariz. Rev. Stat. 13-3301(iv)(4) (Gambling7

or gamble means one act of risking or giving something of value

for the opportunity to obtain a benefit from a game or contest ofchance or skill or a future contingent event ...); 720 Ill. Comp.Stat. 5/28-1(a)(1) (A person commits gambling when he ...[p]lays a game of chance or skill for money or other thing of value...); La. Rev. Stat. 14:90(A)(1)(a) (Gambling is theintentional conducting, or directly assisting in the conducting, asa business, of any game, contest, lottery, or contrivance wherebya person risks the loss of anything of value in order to realize aprofit.).



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contests of chance. 459 F.3d at 342. In rejecting this argument,

the Court observed:

[A] contest of chance encompasses games inwhich the skill of the contestants may play arole, as long as the outcome depends in amaterial degree on chance. [Defendant]concedes that the games in question had thetheme of poker, and he has not contended inhis brief that chance does not play a materialrole in the outcome of a poker game.

Id. Thus, while the Gotti Court did not specifically address the

meaning of gambling under the IGBA, it did uphold a conviction

under 1955 for engaging in a contest of chance in the face of

the defendants claim that the outcome of the game was determined

by skill rather than chance, ruling that it was sufficient that

chance played a material role in the outcome.

For the reasons set forth below, defining gambling to

mean, in substance, betting on an uncertain outcome would be most

consistent with the IGBAs purpose and legislative history. Cf.

Town of Mount Pleasant v. Chimento, 2012 WL 5870814, *5 (S.C. Nov.

21, 2012) (under South Carolina law, the meaning of gambling

depends not on the skill/chance ratio, but on the wager.). But

even if the alternative, game of chance definition were adopted,

it should not have a narrower or more technical meaning than this

Court applied in Gotti. Using that definition, poker would also

qualify as gambling. (See SPA 61 (citing Rogets International

Thesaurus 514.7 (3d ed. 1962) (listing gamble, game of chance

and poker as synonyms along with games specifically enumerated in



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1955(b)(2)). Indeed, even Dr. Heeb would probably agree. (See

GA 153 (Dr. Heeb testifies that poker definitely is a game which

has an element of chance.)).

1. Legislative History

The district court conceded that nothing in the

legislative history indicates that Congress ever considered the

issue of chance predominating over skill in determining whether or

not a particular game constitutes gambling. (SPA 69). The court

also acknowledged that the legislative history is devoid of a

rationale as to why Congress would include a federal definition of

gambling in Section 1955(b)(2). (SPA 67). Further, as the court

explained, the concerns of members of Congress who questioned

whether the statute would reach a friendly poker game were

soothe[d] by others not on the basis that poker is not gambling,

but because a friendly poker game would not meet the other

requirements of the statute. (SPA 73-74).

Moreover, the evolution of the language of 1955(b)(2)

suggests that Congress intentionally elected not to create a narrow

definition of gambling. An early version of the bill stated that

illegal gambling business means betting, lottery, or numbers

activity, which among other requirements, violates state law.

(SPA 99 (citing Illegal Gambling Business Control Act of 1969,

S. 2022, 91st Cong., 1st Sess. 201)). The bill that was finally



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enacted tellingly changed means to includes but is not limited

to.

Beyond these particular features, however, the

legislative history, viewed in a broader context, indicates that

Congress intended the IGBA to assist in the enforcement of state

gambling laws. Further, Congress was especially concerned with

combating gambling operations conducted by organized crime.

Neither of these interests would be served by interpreting the IGBA

to create a narrow definition of gambling that would exclude a

substantial number of activities that are commonly classified

gambling by states, including poker.

The IGBA, part of the Organized Crime Control Act, was

intended to address Congresss finding that, where a state had

outlawed a particular form of gambling, organized crime had

developed complex channels to capitalize on the opportunity

presented. United States v. Sacco, 491 F.2d 995, 1000 (9th Cir.

1974) (discussing legislative history). In enacting the IGBA,

Congress made the following findings:

(1) organized crime in the United States is ahighly sophisticated, diversified, andwidespread activity that annually drainsbillions of dollars from America's economy byunlawful conduct and the illegal use of force,fraud, and corruption; (2) organized crimederives a major portion of its power throughmoney obtained from such illegal endeavors assyndicated gambling, loan sharking, the theftand fencing of property, the importation anddistribution of narcotics and other dangerousdrugs, and other forms of social exploitation;



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(3) this money and power are increasingly usedto infiltrate and corrupt legitimate businessand labor unions and to subvert and corruptour democratic processes; (4) organized crime

activities in the United States weaken thestability of the Nation's economic system,harm innocent investors and competingorganizations, interfere with freecompetition, seriously burden interstate andforeign commerce, threaten the domesticsecurity, and undermine the general welfare ofthe Nation and its citizens; . . .

United States v. Aquino, 336 F. Supp. 737, 739 (E.D. Mich. 1972)

(quoting Pub. L. No. 91-452, Oct. 15, 1970, 84 Stat. 922).

The IGBA was designed to aid the enforcement of state

law where the state had identified the gambling business as

illegal while at the same time exempt[ing] from the federal

statute the operators of gambling businesses that are not contrary

to a states public policy on gambling. United States v. Farris,

624 F.2d 890, 892, 895 (9th Cir. 1980).

The statements of the sponsors of the bill during

congressional debates evidence this essential purpose. Senator

Allott stated that the purpose of the statute is simply to make

the Federal Government a more effective member of the established

State-Federal law enforcement partnership which has long been

waging a common war on organized crime and illegal gambling. 116

Cong. Rec. 604 (daily ed. Jan. 21, 1970) (statement of Sen.

Allott). Additionally, Senator Hruska was among many Senators who

referenced President Nixons April 23, 1969 message on organized

crime during debate on the Senate floor. President Nixon



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characterized the legislation as giving the Attorney General broad

latitude to assist local and state government in cracking down on

illegal gambling, the wellspring of organized crimes reservoir.

See 116 Cong. Rec. 601 (daily ed. Jan. 21, 1970) (statement of Sen.

Hruska). Senator McClellan, stated during discussion on the floor

that [the IGBA] would give the Federal Government two new means to

aid the States in combating large-scale gambling. See 116 Cong.

Rec. 591 (daily ed. Jan. 21, 1970) (statement of Sen. McClellan).

During a House Judiciary Committee hearing, Attorney General

Mitchell submitted a Department of Justice memorandum that stressed

that the IGBA does not proscribe gambling which is legitimate

under state law, nor does it prohibit lotteries and bingo games

conducted for charitable purposes. The federal proposal will not

interfere with a States right to regulate the conduct of citizens

within its jurisdiction. Hearing on S.30 and Related Bills before

Subcomm. No. 5 of the H. Comm. on the Judiciary, 170, 91st Congress

(2d Session) (May 21, 1970) (Statement of Attorney General

Mitchell).

Notwithstanding the federal goal of supplementing state

gambling enforcement efforts, the federal definition of gambling

adopted by the district court would render the statute inapplicable

to many gambling businesses that are illegal under state law.

Further, the district courts specific ruling excluding poker from

the coverage of the IGBA would render the federal definition of



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gambling inconsistent in this respect with the laws of numerous

states that have either legislatively or judicially classified8 9

poker as a form of illegal gambling.

The district court placed great emphasis on the fact that

1955(b)(2) does not include poker in the list of examples of

gambling. (SPA 102-03). But this omission is readily explained by

the statutes principal focus on addressing gambling activities

See, e.g., Ark. Code 5-66-112 (prohibiting card games,8including poker), Cal. Pen. Code 337j(e)(1) (including poker indefinition of controlled game, which is unlawful to operate withouta license); Conn. Gen Stat. 53-278a(2) (including poker indefinition of gambling); Fla. Stat. 849.085(2)(a) (gambling onpoker not a crime when played for penny ante); Idaho Const. ArtIII 20(2) (state may not permit casino gambling, includingpoker); Idaho Code 18-3801 (including poker as gambling); IowaCode 99B.11(3) (tournament exemption to gambling statute does notapply to poker); Ohio Revised Code 2915.01(D) and 2915.02(A)(2)(defining gambling to include poker, craps [or] roulette); Okla.

Stat. 21 941 (poker included in definition of gambling); Or. Rev.Stat. 167.117(4) (poker a proscribed casino game); Tenn. CodeAnn. 39-17-501, Sentencing Commission Comments (defininggambling to include poker); Wis. Const. Art IV, 24(6)(c) (pokeris not exempt from state prohibition on gambling).

See, e.g., Garrett v. Alabama, 963 So. 2d 700 (Ala. Crim.9

App. 2007) (poker covered by state gambling statute); State v.Duci, 151 Ariz. 263 (1986) (same); People v. Mitchell, 444 N.E.2d1153, 1155 (Ill. App. Ct. 1983) (same); State v. Schlein, 253 Kan.205, 305 (1993) (same); Emerson v. Townsend, 73 Md. 224 (1890)(money loaned for poker was loaned for gambling); People v.

Turner, 629 N.Y.S. 2d 661, 662 (N.Y. Crim. Ct. 1995) (poker coveredby state gambling statute); Joker Club LLC v. Hardid, 643 S.E.2d626, 630-31 (N.C. Ct. App. 2007) (same); Garono v. State, 524N.E.2d 496, 500 (Ohio 1988) (same); Commonwealth v. Dent, 992 A.2d190, 196 (Pa. Super. 2010) (same); In re Advisory Opinion to theGovernor, 856 A.2d 320, 328-329 (R.I. 2004) (same); Town of Mt.Pleasant v. Chimento, 2012 WL 5870814, *5 (S.C. Nov. 21, 2012)(same); State ex rel Schillberg v. Barnet, 488 P.2d 255, 258 (Wash.1971) (same).



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that funded organized crime. See Ianelli v. United States, 420

U.S. 770, 787-88 (1975) (IGBA was enacted to give the Federal

Government a new substantive weapon, a weapon which [would] strike

at organized crimes principal source of revenue: illegal

gambling.) (quoting S. Rep. No. 91-617 at 71 (1969)).

When Congress enacted the IGBA in 1970, organized crime

derived its illegal gambling revenue primarily from lotteries, dice

games and wagering on the outcomes of horse races and sporting

events. See 116 Cong. Rec. 590 (daily ed. Jan. 21, 1970)

(statement of Sen. McClellan) (identifying numbers, betting on

horse racing, sporting events, lotteries, dice games, and illegal

casinos as important forms of syndicated gambling); see also

Organized Crime Control: Hearings Before Subcomm. No. 5 of the

H. Comm. on the Judiciary, 91st Cong. 105 (1970) (Statement of Sen.

McClellan) (The directors and managers of the major numbers,

booking, and sports gambling operations across the country are, of

course, the same Mafia leaders who engage in extortion, labor

racketeering, corruption of legitimate business, and the panoply of

other illegitimate enterprises which support organized crime.);

Presidents Commission on Law Enforcement & Administration of

Justice, The Challenge of Crime in a Free Society 188 (1967)

(noting that organized crime profited from lotteries, such as

numbers or bolita, to off-track horse betting, bets on sporting

events, large dice games and illegal casinos.). Thus, in



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1955(b)(2), Congress enumerated the gambling activities that

presented law enforcement with its most pressing challenges related

to organized crime at that time.

By contrast, poker was far less popular in 1970, when the

IGBA was enacted, than it is today. Pokers surge in popularity,

often called the poker boom, is a relatively recent phenomenon

that reached its apex between 2003 and 2006. Anthony Holden,

Bigger Deal: A Year Inside the Poker Boom 1 (2007). The release of

the popular film Rounders in 1998 garnered some public exposure and

interest in poker, but by far the most important catalyst for the

poker boom was the emergence of the Internet, which allowed for

online poker-playing, and cable television, which frequently

broadcast poker tournaments. Id. at 1, 10. Both forms of media

facilitated the explosion of pokers popularity within a matter of

years. The World Series of Poker, perhaps the most prestigious

poker tournament in the United States, provides a useful indication

of the rapid growth in pokers popularity. When the tournament

began in 1978, 42 players participated; by 1988, this number had

grown to 167. Id. at 1. In 2006, by contrast, 8,773 players

entered the main event alone, and more than 44,500 players

participated in the tournament at large. Id.

Not surprisingly, as the district court observed, in the

pre-poker-boom years when the IGBA was being enacted, Mafia

involvement in poker games was limited. (SPA 73) (citing United



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States v. Roselli, 432 F.2d 879, 886 n.8 (9th Cir. 1970) (noting

that poker is not traditionally associated with organized

crime)). However, that has changed. The surge in pokers

popularity has created lucrative opportunities for organized crime

syndicates and other criminal actors. Indeed, the district court

itself detailed organized crimes growing involvement in poker

games following the enactment of the IGBA. (SPA 76-77).

That Congress in 1970 did not foresee the poker boom or

the increased revenue the game now provides to organized crime does

not mean that poker is not covered by the IGBA. A statute can

reach beyond the specific situation that Congress envisioned in

drafting it if the statutory language is broad enough. See Smith

v. United States, 508 U.S. 223, 239 (1993) (citing United States v.

Harris, 959 F.2d 246, 262 (D.C. Cir. 1992)); Union Bank v. Wolas,

502 U.S. 151, 157-58 (1991). It is thus especially significant

that Congress deliberately chose open-ended language in drafting

1955(b)(2) when it provided that gambling includes but is not

limited to the enumerated activities. Congress could not have

intended merely to shunt organized crimes revenue raising into

poker and other games not expressly mentioned in 1955(b)(2).

2. Sports Betting

The district courts definition of gambling as an

activity in which chance predominates over skill is also flawed

because it would exclude an activity that clearly is covered by the



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IGBA. In particular, sports betting (bookmaking), one of the

gambling activities enumerated by 1955(b)(2), involves

substantial (not slight) skill, including the exercise of [a]

bettors judgment in trying to ... figure [out] the point spreads.

Office of the Attorney General of the State of New York, Formal

Opinion No. 84-F1, N.Y. Op. Atty. Gen. 11 (1984). Sports bettors

can employ superior knowledge of the games, teams and players in

order to exploit odds that do not reflect the true likelihoods of

the possible outcomes. See Garrett Downing, Career Sports Bettors

Battle the Betting Line, Las Vegas Sun, Mar. 30, 2009 (available

at http://www.lasvegassun.com/news/2009/mar/30/career-sports-

bettors-battle-betting-line/) (describing research and analysis

conducted by professional sports bettors). Indeed, academics who

have argued that poker should not be treated as a form of illegal

gambling on the ground that it is a game of skill make the same

argument regarding sports betting. See, e.g., Scott Van Voorhis,

Profs Back Online Poker,Boston Herald, Oct. 22, 2007 (available

at 2007 WLNR 20766706) (Like [Professor Charles] Nesson,

[Professor Alan] Dershowitz contends that, under the same game of

skill theory, online sports betting should be legalized....

Dershowitz said, It is ridiculous to call either poker or sports

betting a game of chance.).



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Notably, Dr. Heeb cited the ability to make a living

playing poker as a basis for concluding that skill predominated

over chance in that game:

[F]or a number of different independentreasons, I concluded that skill predominatesover chance in poker. I approached theproblem with three different exercises.

The first is an observation, which I havealso made as a player, and that is that agreat many people make a living playing poker.And its my opinion that a game in which a

person can make a living reliably based ontheir skills, is a game of skill. And so thatobservation is independent foundation for my

opinion that skill[] predominates over chancein poker, and I confirmed that in the datathat I analyzed.

(GA 113) (emphasis added); (see also GA 19 (Dr. Heeb states that

the ability to make a living playing poker alone is an independent

foundation for my opinion that skill predominates over chance in

poker.)). By this criterion, however, sports betting is also an

activity in which skill predominates over chance, since it is

beyond dispute that a skilled bettor can reliably make a living in

sports betting. See, e.g., The Gambler, 60 Minutes (CBS

television broadcast Jan. 16, 2011) (video available at

http://www.cbsnews.com/video/watch/?id=7253011n, transcript

available at http://www.cbsnews.com/stories/2011/01/13/60minutes/

main7243443.shtml) (profiling professional gambler Billy Walters,



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who has amassed a large fortune over decades of successfully

betting on sports events).

The district courts effort to distinguish the respective

roles of chance and skill in sports betting and poker was

unconvincing. (SPA 110-11). The court relied upon the notion that

poker players strategy can influence a poker hands outcome

whereas the outcome of a sporting event is wholly outside of a

bettors control. (Id.). This distinction is faulty. While a

sports bettor cannot (legally) influence the outcome of a game,

sports bettors can and do influence the betting line or point

spread in order to improve their odds of making a successful bet.

Specifically, a gambler intending to make a large bet on one team

may first place one or more smaller, strategic bets on the other

team to move the betting line and make it more favorable for the

ultimate intended bet. See The Gambler, supra (explaining how a

gambler can bet[] on both sides to move the line); Garrett

Downing, supra (noting that professional sports bettors try to

move the betting lines to improve their odds). This technique is

analogous to bluffing, raising or folding in poker, which are

means by which skillful poker players can influence the outcome of

a hand independently of chance.

In any event, the distinction is simply not relevant to

the district courts ultimate inquiry of whether skill predominates

over chance. The inability to influence the outcome of an event is



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not in any way inconsistent with skills being required to predict

the outcome. For example, no one would dispute that substantial

skill is involved in a political pollsters predicting the outcome

of an election or a stock analysts predicting the future

profitability of a publically-owned company. The district courts

definition of gambling would therefore also exclude sports betting

or bookmaking, in clear contradiction to the plain language of

1955(b)(2).

3. Other Federal Statutes

Other federal statutes are also relevant to determining

the meaning of gambling. It is true that subsequent

congressional enactments have a limited value in determining the

intent of an earlier Congress. See Jones v. United States, 526

U.S. 227, 238 (1999); United States v. Mine Workers, 330 U.S. 258,

28182 (1947). However, the definition of gambling under other

statutes is relevant to illuminating the commonly-understood

meaning of that term in a statute where, as here, it is not

defined.

As the district court noted (SPA 89-91), in 1996,

Congress passed the National Gambling Impact Study Commission Act

(NGISC) to set up a commission to study the legalization of

gambling in the United States. See Pub. L. No. 104-169, 110 Stat.

1482 (1996) (codified at 18 U.S.C. 1955 notes). Although the

NGISC did not amend the text of the IGBA itself, Congress directed



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that the NGISC be incorporated into the notes following 1955.

See id.

The NGISC defines gambling for purposes of that Act as

any legalized form of wagering or bettingconducted in a casino, on a riverboat, on anIndian reservation, or at any other locationunder the jurisdiction of the United States.Such term includes any casino game, parimutuelbetting, sports-related betting, lottery,pull-tab game, slot machine, any type of videogaming, computerized wagering or bettingactivities (including any such activityconducted over the Internet), and

philanthropic or charitable gaming activities.

Id. 8(1). This definition includes poker, since poker involves

wagering or betting and is conducted at casinos and since it is

also a wagering or betting activit[y] ... conducted over the

Internet. The district court dismissed the significance of the

NGISC, commenting that the NGISC created its own definition

[r]ather than incorporating the definition of gambling already

provided by the IGBA. (SPA 90). But this assertion rests on the

district courts mistaken premise that 1955(b)(2) contains a

definition of gambling.

Another federal statute that includes poker in the

definition of gambling is the Indian Gambling Regulatory Act

(IGRA), 25 U.S.C. 2701, et seq., a statute that regulates the

operation of gaming by Native American tribes. That act defines

class II gaming, which is permitted under certain specified

conditions to include card games along games such as bingo and



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lotto. See 25 U.S.C. 2703(7)(A)(ii). The district court

correctly conceded that class II card games under the IGRA would

include poker. (SPA 87).

C. The Interpretative Aids Invoked by theDistrict Court Do Not Support its Definitionof Gambling

1. The Rule of Lenity

The district court invoked the rule of lenity in agreeing

with DiCristinas argument that 1955(b)(2) created a federal

definition of gambling that was narrower than the state law

definition. (SPA 100-01). [T]he rule of lenity only applies if,

after considering text, structure, history, and purpose, there

remains a grievous ambiguity or uncertainty in the statute.

Barber v. Thomas, 130 S. Ct. 2499, 2508 (2010) (internal quotations

omitted); see also DePierre v. United States, 131 S. Ct. 2225,

2237 (2011) (refusing to apply rule of lenity where statute was not

crystalline but the statutory text allows us to make far more

than a guess as to what Congress intended) (internal quotation

marks and citation omitted); Abbott v. United States, 131 S. Ct.

18, 31 n.9 (2010) (Although the clause might have been more

meticulously drafted, the grammatical possibility of a defendants

interpretation does not command a resort to the rule of lenity if

the interpretation proffered by the defendant reflects an

implausible reading of the congressional purpose.) (internal

quotation marks and citation omitted). In this case, the district



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court erred by resorting to the rule of lenity because there was no

grievous ambiguity in the statute such that after seizing upon

everything from which aid can be derived, the Court can make no

more than a guess as to what Congress intended. Muscarello v.

United States, 524 U.S. 125, 138 (1998) (citations and internal

quotation marks omitted).

Moreover, the district courts interpretation of the

statute does not advance the purposes of the rule of lenity.

Application of the rule of lenity ensures that criminal statutes

will provide fair warning concerning conduct rendered illegal and

strikes the appropriate balance between the legislature, the

prosecutor, and the court in defining criminal liability.

Liparota v. United States, 471 U.S. 419, 427 (1985); see also

United States v. Velastegui, 199 F.3d 590, 593 (1999) (The rule of

lenity, a manifestation of the fair warning requirement, ensures

fair warning by so resolving ambiguity in a criminal statute as to

apply it only to conduct clearly covered.) (quoting United States

v. Lanier, 520 U.S. 259, 266 (1997)).

A reasonable person, looking at the plain language of

1955 in a commonsense way, would have fair warning that the

statute applies to poker and other games that are commonly

understood as gambling. Indeed, the requirement in 1955(b)(1)(i)

that the illegal gambling business violate state law eliminates



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any concern that the IGBA could be applied to punish conduct that

the defendant believed to be lawful.

By contrast, the district courts interpretation of the

statute requires highly specialized knowledge and expertise that

could not be applied by ordinary citizens seeking to determine the

legality of their conduct. The district court reached its

interpretation of the statute only after reviewing lengthy,

technical reports and hearing expert testimony about a study of 415

million hands of Texas Holdem poker. The courts summary of this

material, complete with graphs and charts, comprises more than 30

pages of its opinion. (See SPA 14-47). Even accepting arguendo

that the court correctly concluded that skill predominates over

chance in Texas Holdem poker, it did not address other varieties

of poker, much less completely different games such as baccarat,

blackjack and pinochle. Presumably, the legality of each of these

games would have to be determined on a case-by-case basis, through

an analysis similar to the one conducted by Dr. Heeb. This would

obviously be well beyond the capabilities of, for example, someone

who was trying to determine what games could legally be operated by

a neighborhood social club.10

A further element of uncertainty in this approach was10

illustrated by the disagreement between Dr. Heeb and Dr. DeRosaabout how many hands of poker provided the relevant sample fordetermining whether skill predominated over chance. Dr. Heebsanalysis showed that it required hundreds of hands of poker formore skilled players reliably to prevail over less skilled players.But as Dr. DeRosa noted, there is no rule in poker that a player



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At bottom, the district courts decision does not

strike[] the appropriate balance between the legislature, the

prosecutor, and the court in defining criminal liability.

Liparota, 471 U.S. at 427. The type of evidence and arguments on

which the district court relied should be directed to Congress or

state legislatures in deciding whether to create an exception to

the gambling laws for games of skill and what games should qualify

under such an exception. They should not be invoked to rewrite a

statute that Congress has already enacted.

2. Common Law

The district court asserted that common law supported its

definition of gambling, because [m]ost states find that an

activity is ... illegal gambling if a person risks something of

value on an activity predominantly determined by chance for the

opportunity to win something of greater value than he or she

risked. (SPA 62) (quoting Anthony Cabot & Robert Hannum, Poker:

Public Policy, Law, Mathematics, and the Future of an American

Tradition, 22 T.M. Cooley L. Rev. 443, 445 (2005)). But as noted

before, some states, including New York, define gambling as an

activity where chance merely plays a material role in the outcome,

whether or not it is predominant. See nn. 6 & 7 supra. Other

states also define gambling in ways that do not depend upon the

must play a minimum number of hands. (GA 258-59, 274). Andnothing would stop an unskilled player from leaving a game afterfortuitously winning a large pot.



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degree of chance or skill involved. See Town of Mount Pleasant,

2012 WL 5870814, at *5 (under South Carolina statute, the

definition of gambling is concerned with wagering regardless of

the skill involved in the game wagered upon.).

Moreover, throughout its history, poker has commonly been

understood to constitute a form of gambling. The game appeared in

roughly its modern form during the early nineteenth century in New

Orleans, apparently as a derivative of the French game poque. See

James McManus, Cowboys Full: The Story of Poker 51 (2009). State

legislatures across the country passed a wave of anti-gambling laws

at around the same time, and these laws invariably prohibited poker

along with other forms of gambling. Id. at 83-84. Poker is

described as gambling in a variety of contexts in reported cases

dating back to the 1800s. The historical perception of poker as11

a form of gambling persists. The Merriam-Webster online dictionary

defines poker, in relevant part, as any of several card games in

which a player bets that the value of his or her hand is greater

than that of the hands held by others... Merriam-Webster Online

See, e.g., Utsler v. Territory, 10 Okla. 463 (1900) (The11witness Fisher also testified that he saw gambling carried on inthe room with cards, being known as stud poker, and he alsotestified that liquor was sold in the same room.); In re SellingsEstate, 17 N.Y. St. Rep. 833 (1888) (The proof submitted by thepetitioner also shows the respondent Joseph Selling to be a man ofutterly worthless and irresponsible character; that he is aprofessional gambler, know[n] as Poker Joe.... ).



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Dictionary (July 27, 2012) (available at http://www.merriam-

webster.com/dictionary/poker?show=1&t=1343184416) (emphasis added).

Notably, the district court did not identify one state,

nor is the government aware of any, in which poker has been held

not to constitute gambling because it is a game in which skill

predominates over chance. As noted before, poker is treated as a

form of illegal gambling under the laws of virtually every state.

See nn. 8 & 9 supra. Indeed, in district court, DiCristina

tellingly resorted to citing decisions of foreign courts. (See

DE 108 at 1-2). However, American common law does not support the

district courts decision.

3. Ejusdem Generis

The district court also erred in relying on the statutory

maxim of ejusdem generis to support its interpretation of

1955(b)(2). Ejusdem generis limits general terms [that] follow

specific ones to matters similar to those specified. CSX Transp.,

Inc. v. Alabama Dept. of Revenue, 131 S. Ct. 1101, 1113 (2011)

(alteration in original, internal quotation marks and citations

omitted). For example, ejusdem generis could be applied to

interpret the meaning of equipment in the statutory phrase

fishing rods, nets, hooks, bobbers, sinkers, and other

equipment. Id. (quoting United States v. Aguilar, 515 U.S. 593,

615 (1995) (Scalia, J., concurring in part and dissenting in



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part)). Courts typically use ejusdem generis to ensure that a

general word will not render specific words meaningless. Id.

Under these principles, ejusdem generis does not apply to

1955(b)(2). In that provision, gambling is not a general

catchall term that follows a list of specific terms. Rather,

1955(b)(2) provides that gambling includes but is not limited

to the identified activities, thus indicating that the specific

terms are non-exhaustive and are merely illustrations of things

that fall into the general category. See United States v. Migi,

329 F.3d 1085, 1088-89 (9th Cir. 2003) (An application of ejusdem

generis would narrow Congresss definition.... In addition, we

need not apply ejusdem generis because Congress modified its list

of examples with the phrase including, but not limited to.);

Cooper Distrib. Co. v. Amana Refrig., Inc., 63 F.3d 262, 280 (3d

Cir. 1995) (Alito, J.) ([T]he rule of ejusdem generis applies only

if the provision in question does not express a contrary intent.

Thus, since the phrase including, but not limited to plainly

expresses a contrary intent, the doctrine of ejusdem generis is

inapplicable.) (citation omitted); Ramirez v. City Demonstration

Agency, 549 F.2d 97, 104 (9th Cir. 1976) ([T]he phrase including

but not limited to, [is] one that is often used to mitigate the

sometimes unfortunate results of rigid application of the ejusdem

generis rule.); see also City of New York v. Permanent Mission of

India to United Nations, 618 F.3d 172, 183-85 (2d Cir. 2010).



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Moreover, because there can be no dispute that Congress intended

activities other than the nine listed examples to constitute

gambling, interpreting the statute to include poker would not

render the specific terms in 1955(b)(2) meaningless.

Moreover, even if ejusdem generis did apply to

1955(b)(2), the district court failed to offer a compelling

reason why it did not adopt a broader definition that would be

consistent with the IGBAs plain language and legislative history.

For example, the nine activities identified in 1955(b)(2) all

involve the wagering of money. This broader common attribute both

identifies a meaningful characteristic common to the list and

preserves the prevailing meaning of the term gambling. Thus,

this Court should reject the district courts narrow and incorrect

application of ejusdem generisand the resulting interpretation of

the IGBA that gambling activity under 1955(b)(2) must involve

a game where chance predominates over skill. See Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 225-26 (2008) (declining to adopt

more limited statutory interpretation under ejusdem generis where

broader interpretation was also available); City of New York, 618

F.3d at 184 (there is no contextual basis for adopting a narrower

than normal meaning here.).



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CONCLUSION

For the reasons stated, the district courts order

dismissing the second superseding indictment and vacating the

defendants conviction should be reversed and the case remanded for

sentencing.

Dated: Brooklyn, New YorkDecember 20, 2012

Respectfully submitted,

LORETTA E. LYNCH,United States Attorney,Eastern District of New York.

By: /s/Marisa Megur Seifan,Nathan Reilly,Assistant U.S. Attorneys.

DAVID C. JAMES,MARISA MEGUR SEIFAN,NATHAN REILLY,Assistant United States Attorneys,

(Of Counsel).



53/53

Certificate Concerning Type-Volume Limitation,Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation

of Fed. R. App. P. 32(a)(7)(B) because the brief contains 9,842

words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of

Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R.

App. P. 32(a)(6) because this brief has been prepared in a

monospaced typeface using Word Perfect X5 in 12 point Courier New

font.

Dated: Brooklyn, New YorkDecember 20, 2012

/s/David C. JamesAssistant U.S. Attorney


Documents

Brief And Special Appendix For The United States