SC Appeal Amicus Brief (07/29/09)

8/14/2019 SC Appeal Amicus Brief (07/29/09)

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STATE OF SOUTH CAROLINA

COUNTY OF CHARLESTON

Town of Mount Pleasant,

vs.

Robert L. Chimento, Scott Richards, MichaelWilliamson, Jeremy Brestel, and John TaylorWillis,

Defendants-Appellants.

IN THE CIRCUIT COURT

FOR THE NINTH CIRCUIT

TICKET Nos. 98045DB,98050DB, 98040 DB, 98035DB

98043DB

BRIEF OF AMICUS CURIAETHE POKER PLAYERS ALLIANCEIN SUPPORT OF DEFENDANTS

Thomas C. GoldsteinChristopher M. EglesonJonathan H. EisenmanAkin Gump Strauss Hauer & Feld LLP1333 New Hampshire Ave., NWWashington, D.C. 20036-1564(202) 887-4000

Kenneth L. AdamsAdams Holcomb LLP1875 Eye Street NWWashington, D.C. 20006(202) 580-8822


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TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................................................... ii

STATEMENT OF INTEREST.........................................................................................................1

ARGUMENT...................................................................................................................................1

I. South Carolina Law Does Not Prohibit Gaming Unless Chance PredominatesOver Skill.............................................................................................................................2

II. Poker Matches Are Contests of Skill ...................................................................................7

A. Making Correct Decisions In Poker Requires A Diverse Array OfSophisticated Skills That Games Of Chance Do Not. .............................................9

B. Skilled Players Beat Simple Players In Simulated And Real Poker Play. .............13

CONCLUSION..............................................................................................................................19


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TABLE OF AUTHORITIES

Cases Page(s)

In re Allen,

377 P.2d 280 (Cal. 1962).........................................................................................................3, 8City of Myrtle Beach v/ Juel P. Corp.,

344 S.C. 43, 543 S.E.2d 538 (2001)............................................................................................4

DOrio v. Startup Candy Co.,266 P. 1037 (Utah 1928) .............................................................................................................3

Darlington Theatres v. Coker,190 S.C. 282, 2 S.E.2d 782 (1939)..............................................................................................5

Harris v. Missouri Gaming Commn,869 S.W.2d 58 (Mo. 1994)..........................................................................................................3

Indoor Recreation Enters., Inc. v. Douglas,235 N.W.2d 398 (Neb. 1975)......................................................................................................3

Johnson v. Collins Entmt Co.,333 S.C. 96, 508 S.E.2d 575 (1998)............................................................................................5

Kraus v. City of Cleveland,19 N.E.2d 159 (Ohio 1939).........................................................................................................5

Las Vegas Hacienda, Inc. v. Gibson,359 P.2d 85 (Nev. 1961) .............................................................................................................3

Midwestern Enters., Inc. v. Stenehjem,

625 N.W.2d 234 (N.D. 2001) .........................................................................................................5Monte Carlo Parties, Ltd. v. Webb,

322 S.E.2d 246 (Ga. 1984)..........................................................................................................5

Morrow v. State,511 P.2d 127 (Alaska 1973)........................................................................................................3

Nuckolls v. Great Atl. & Pac. Tea Co.,192 S.C. 156, 5 S.E.2d 862 (1939).............................................................................................4

Pennsylvania v. Dent,No. 2008-733, slip op. (Pa. Ct. Com. Pl. Jan. 14, 2009).............................................................1

Pennsylvania v. Irwin,636 A.2d 1106 (Pa. 1993) ..........................................................................................................5

Pennsylvania v. Two Elec. Poker Game Machs.,

465 A.2d 973 (Pa. 1983)..............................................................................................................7

PGA Tour, Inc. v. Martin,532 U.S. 661 (2001) ................................................................................................................... 8


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Rorrer v. P.J. Club, Inc.,347 S.C. 560, 556 S.E.2d 726 (Ct. App. 2001) ..........................................................................2

State v. Blackmon,304 S.C. 270, 403 S.E.2d 660 (1991) ..............................................................................................6

State v. Cutler,274 S.C. 376, 264 S.E.2d 420 1980) ...............................................................................................6

State v. Lane,82 S.C. 144, 63 S.E. 612 (1909).................................................................................................2

State v. Stroupe,76 S.E.2d 313 (N.C. 1953) .........................................................................................................3

United States v. Santos,128 S. Ct. 2020 (U.S. 2008).............................................................................................................6

Video Gaming Consultants, Inc. v. Dep't of Revenue,342 S.C. 34, 535 S.E.2d 642 (2000)............................................................................................2

Statutes

S.C. Code 16-19-40.................................................................................................................1, 19

Opinions

S.C. Atty Gen. Op., 2004 WL 235411 (Jan. 22, 2004) ..............................................................6, 7

S.C. Atty Gen. Op., 2001 WL 957740 (Aug. 2, 2001)...................................................................6

S.C. Atty Gen. Op., 1995 WL 805729 (Sept. 5, 1995)...................................................................6

1978 S.C. Op. Atty Gen. 226, 1978 S.C. Op. Att'y Gen. No. 78-201 (1978) ................................6

Books

David Apostolico, Machiavellian Poker Strategy:How to Play Like a Prince and Rule the Poker Table (2005)...................................................13

Doyle Brunson,Doyle Brunsons Super System: A Course in Power Poker(2002).....................13

Gus Hansen,Every Hand Revealed(2008)....................................................................................13

Dan Harrington,Harrington on Hold Em:Expert Strategy for No Limit Tournaments (2005) ...................................................................13

Eric Lindgren, World Poker Tour: Making the Final Table (2005)..............................................13

Daniel Negreanu,Power Holdem Strategy (2008).......................................................................13

Blair Rodman & Lee Nelson,Kill Phil: The Fast Track to Success inNo-Limit Hold Em Poker Tournaments (2005)........................................................................13


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Jonathan Rowson, CHESS FORZEBRAS:THINKING DIFFERENTLY ABOUT BLACK AND WHITE(2005) ..........................................................................................................................................8

David Sklansky, The Theory of Poker(1994) ...............................................................................13

David Sklansky, Tournament Poker for Advanced Players (2002)...............................................13

Articles

Noga Alon, Poker, Chance & Skill................................................................................................15

Peter Borm & Ben van der Genugten, On a Measure of Skill for Gameswith Chance Elements (1996). .......................................................................................................15

Anthony Cabot & Robert Hannum,Poker, Public Policy, Law, Mathematics,and the Future of an American Tradition, 22 T.M. Cooley L. Rev. 443 (2005) ......................18

Benedict Carey,At the Bridge Table, Clues to a Lucid Old Age, N.Y. Times (May 22, 2009)......4

Rachel Croson, Peter Fishman & Devin G. Pope,Poker Superstars: Skill or Luck?

CHANCE (Vol. 21, No. 4,2008) ...........................................................................................16,18

Laure Elie & Romauld Elie, Chance and Strategy in Poker(Sept. 2007) (unpublished manuscript) .....................................................................................15

Shawn Patrick Green, Online Poker: Interview With Annette Annette_15 Obrestad, Card-Player.com (Aug. 12, 2007) ......................................................................................................17

Paco Hope & Sean McCulloch, Statistical Analysis of Texas HoldEm (March 4, 2009) ........9, 16

Trevor Hughes,Definition Clears Man of Gambling Charges,Coloradoan (Jan. 30, 2009) .........................................................................................................2

Patrick Larkey et al., Skill in Games, 43 MANAGEMENT SCIENCE 596 (May 1997)......9, 13, 15, 17

Howard Lederer, Why Poker Is a Game of Skill(May 6, 2008) (unpublished manuscript)..................................................................................11

Michael A. Tselnik, Check, Raise, or Fold: Poker and the Unlawful InternetGambling Enforcement Act, 35 Hofstra L. Rev. 1617 (Spring 2007).......................................18

Abraham J. Wyner, Chance and Skill in Poker(Apr. 17, 2008) (unpublished manuscript) ................................................................................15

Websites

World Poker Tour Stats, Website ....................................................................................................8


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STATEMENT OF INTEREST

Amicus curiae the Poker Players Alliance is a nonprofit organization whose members are

poker players and enthusiasts from around the United States. The Alliance works to protect the

legal rights of poker players, and has been involved in these proceedings since trial. The groups

membership has a direct interest in the outcome of this case, because it will determine whether

they are permitted to play poker in South Carolina.

ARGUMENT

Defendants-appellants were charged with playing cards in a house used as a place of

gaming in violation of S.C. Code 16-19-40. As the state and Appellants agree, gaming in

the statute means gambling. As Appellants also explain in their brief, and as we explain below,

under South Carolina law poker is gambling if the outcome is determined predominantly by

chance rather than skill. For the reasons we explain, this appeal presents a narrow legal question:

to resolve the case in Appellants favor this Court need only rule that a home game of poker in

particular does not violate the statute. In this brief, amicus explains why the question under the

statute is whether skill predominates over chance in poker, why skill does in fact predominate

over chance in poker, and why Appellants particular conduct here therefore does not violate the

statute.

A Pennsylvania court recently addressed the same question in almost identical circum-

stances. See Pennsylvania v. Dent, No. 2008-733, slip op. at 14-15 (Pa. Ct. Com. Pl. Jan. 14,

2009) (attached for the Courts convenience as Ex. A). InDent, the court concluded that the de-

fendants were not engaged in unlawful gambling activity because the game they were playing,

Texas Hold Em, is a game in which skill predominates over chance. Notably, although Penn-

sylvania positive law does not define unlawful gambling, the DentCourt proceeded by using

the common law American rule, also known as the predominance test or the dominant factor


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test, to determine that Texas Hold Em is not unlawful gambling. Likewise, a Colorado jury

recently acquitted a man who had hosted regular informal poker tournaments at a local bar after

the man defended his actions by demonstrating that skillpredominates over chance in poker. See

Trevor Hughes, Definition Clears Man of GamblingCharges, Coloradoan (Jan. 30, 2009) (at-

tached as Ex. B).1

This court should follow the course set in those cases and hold that the rele-

vant question is whether the game at issue is a game of chance, and that sinceas the trial court

foundpoker is not a game of chance, playing poker in a private home does not violate Section

16-19-40.

I.

South Carolina Law Does Not Prohibit Gaming Unless Chance Predominates OverSkill

Appellants were charged with violating Section 16-19-40 by playing poker in a private

home. To show that playing poker in such a setting violated the statute, the Town had to prove

that poker is a game in which the outcome is determined predominantly by chance rather than

skill. That is true because Section 16-19-40 prohibits playing any game with cards or dice in

any house used as a place of gaming. The Town could only show that the house in question

was being used as a place of gaming if there was gaming taking place at the house.

As an initial matter, gaming in Section 16-19-40 means gambling, as both parties

here agree. The courts have consistently treated the terms as equivalents, as in State v. Lane, 82

S.C. 144, 144, 63 S.E. 612, 613 (1909), and Video Gaming Consultants, Inc. v. Dep't of Revenue,

342 S.C. 34, 44, 535 S.E.2d 642, 648 (2000), in which the Supreme Court used them inter-

changeably. SeealsoRorrer v. P.J. Club, Inc., 347 S.C. 560, 566, 556 S.E.2d 726, 729 (Ct. App.

1 http://www.coloradoan.com/article/20090130/NEWS01/901300328, last accessed Feb. 9, 2009.


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2001) (purpose of statute allowing right to recover excessive gambling losses is to punish ex-

cessive gaming.). This appeal therefore turns on whether poker is gambling.

The common test for whether an activity is gambling is the so-called dominant factor

test, which has been adopted by the high courts of Nebraska, California, Nevada, North Carolina,

Utah, Missouri, and Alaska, among other courts. See, e.g., Indoor Recreation Enters., Inc. v.

Douglas, 235 N.W.2d 398, 400 (Neb. 1975); In re Allen, 377 P.2d 280 (Cal. 1962); Las Vegas

Hacienda, Inc. v. Gibson, 359 P.2d 85, 87 (Nev. 1961); State v. Stroupe, 76 S.E.2d 313, 316-17

(N.C. 1953); DOrio v. Startup Candy Co., 266 P. 1037, 1038 (Utah 1928); Harris v. Missouri

Gaming Commn, 869 S.W.2d 58, 62 (Mo. 1994); Morrow v. State, 511 P.2d 127, 129 (Alaska

1973);see alsoDent, slip op. at 14-15. Under that test, an activity is not gambling if skill pre-

dominates over chance in determining the outcome of the activity.

The court below recognized that the courts of a number of states follow the dominant fac-

tor test (Op. at 3), and recognized that if [it] knew that this State follows that test in this factual

circumstance the decision would be simple because Texas Hold-em is a game of skill (id.).

The court, however, declined to apply the dominant factor test, but not on the basis of any af-

firmative legal conclusion about what test to apply in determining what constitutes gambling.

The court erred in declining to decide whether the dominant factor test applies under the laws of

this State. But the effect of what the court ruled, insteadthat South Carolinas policy is to sup-

press gambling by suppressing all card and dice games (Op. at 4)is that Section 16-19-40 can

be read to suppress a game of Monopoly or bridge. It is true that the plain language of the Sec-

tion could be read to prohibit any game with cards or dice, but as the Supreme Court observed,

[h]owever plain the ordinary meaning of the words used in a statute may be, the courts will re-

ject that meaning when to accept it would lead to a result so plainly absurd that it could not pos-


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sibly have been intended by the Legislature . . . . Broadhurst v. City of Myrtle Beach Election

Commn, 342 S.C. 373, 380, 537 S.E.2d 543, 546 (2000). The statute itself provides a qualifier

to any game with cards or dice, e.g., that the game must also be played in a house used as a

place of gaming. But without a functional definition of gaming, there is no reason why Section

16-19-40 would notapply to a game like Monopoly, an absurd result that a proper interpretation

of the law must avoid. Otherwise, what would prevent a SWAT team from hauling a group of

retirees away from a penny-ante game of bridge, also a game of skill, 2 as one hauled Appellants

from their five-dollar-a-hand poker tables?

That absurdity can be avoided by reading the unlawful games statute in conjunction

with the dominant factor test. However, instead of applying the dominant factor test, the court

noted that it lacked a clear guideline from the Legislature or from the majority of this Supreme

Court and so would not set itself to definitively conclude that this State will or does follow the

Dominant Test Theory. Op. at 4. Because the trial court did not believe it had sufficient guid-

ance to apply the dominant factor test, this Court is obliged to answer the legal question that the

court below, for lack of clear guidance, left unaddressed. The trial court feared trespassing in

the Legislatures domain by using a common law test to make sense of Section 16-19-40, but in

doing so, the court neglected the presumption that the Legislature acts against the background of

the common law, andunless explicitly indicatedin accordance with the common law. E.g.,

Nuckolls v. Great Atl. & Pac. Tea Co., 192 S.C. 156, 161, 5 S.E.2d 862, 864 (1939); see, e.g.,

City of Myrtle Beach v. Juel P. Corp., 344 S.C. 43, 48, 543 S.E.2d 538, 540 (2001) (applying the

common law timeframe for abandonment when an ordinance using the term failed to otherwise

2See, e.g., Benedict Carey, At the Bridge Table, Clues to a Lucid Old Age, N.Y. Times (May 22, 2009),available at http://www.nytimes.com/2009/05/22/health/research/22brain.html (discussing the mental challenge


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define it). The recent opinions of at least two Justices inJohnson v. Collins Entertainment Co.,

333 S.C. 96, 508 S.E.2d 575 (1998), offer strong evidence that the dominant-factor test governs

under South Carolina law.

InJohnson, the question was whether video gaming machines constituted a lottery un-

der the Constitution. The majority decided that the machines were not a lottery, establishing a

principle that the term lottery in particular is to be narrowly construed. Id. at 102. The major-

ity opinion, therefore, did not reach the more general question of what constitutes gambling. Jus-

tice Burnett in dissent, however, read the term lottery more broadly, finding support in the

Courts earlier decisionDarlington Theatres v. Coker, 190 S.C. 282, 2 S.E.2d 782 (1939). Under

Darlington Theatres,Justice Burnett understood the term lottery to describe any game involving

(1) [t]he giving of a prize, (2) by a method involving chance, (3) for a consideration paid by the

contestant or participant, Johnson, 333 S.C. at 109, 598 S.E.2d at 582, thus reading the term

lottery to be expansive enough to cover gambling in general.3

From there, Justice Burnett

(unlike the majority) had to determine what degree of chance is required to satisfy the second

prong of the test. Justice Burnett reasoned that the American rule should apply (as it does in a

majority of jurisdictionsby court ruling), and concluded that where the dominant factor in a

inherent in playing bridge, the skill necessary to play, and the positive mental effect of being engrossed in some

mental activities like cards.).3 Chance, consideration, and prize are widely recognized as the three elements of gambling. See, e.g.,

Midwestern Enters., Inc. v. Stenehjem, 625 N.W.2d 234, 237 (N.D. 2001) (The three elements of gambling are gen-erally recognized as consideration, prize, and chance.); Monte Carlo Parties, Ltd. v. Webb, 322 S.E.2d 246, 248(Ga. 1984) (The crime of gambling, in Georgia, consists of three elements: consideration, chance, and prize.);

Pennsylvania v. Irwin, 636 A.2d 1106, 1107 (Pa. 1993) (The three elements of gambling are (1) consideration; (2) aresult determined by chance rather than skill; and (3) reward.); Kraus v. City of Cleveland, 19 N.E.2d 159, 161(Ohio 1939) (there is involved in the game three elements of gambling, namely, chance, price and a prize.).


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participants success or failure in a particular scheme is beyond his control, the scheme is a lot-

tery. Id. at 113, 584.4

Justice Burnetts logic is convincing, and the wealth of authority that he collects persua-

sively demonstrates that the consensus view in America law in cases of this sort is that the domi-

nant-factor test states the proper question. See id. at 114, 584 n.10 (collecting cases). Justice

Burnetts view is further bolstered by the fact that he was joined as to the proper legal standard

by Justice Toal,seeid. at 120, 588, and by the fact that there is no indication that any other Jus-

tice would disagree. The Attorney General has furthermore consistently stated that the test of

whether a particular game is a game of chance or skill is governed by the so-called predomi-

nance test. S.C. Atty Gen. Op. dated Jan. 22, 2004 (citingS.C. Atty Gen. Ops. dated Aug. 2,

2001; Sept. 5, 1995; Dec. 5, 1978).5

In the absence of any indication to the contrary, the neces-

sary conclusion from the Justices analysis and that of the Attorney General is that under the law

of this State, as under the majority of others, the question of whether an activity constitutes

gambling turns on whether the dominant factor in a participants success or failure in a particu-

lar scheme is beyond his control. Id. at 113, 584 (Burnett, J., dissenting).

At a minimum, the municipal court should have applied the rule of lenity in construing

the statute. As the Supreme Court has consistently held, when a statute is penal in nature, it

must be construed strictly against the State and in favor of the defendant. State v. Blackmon,

304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991);see also State v. Cutler, 274 S.C. 376, 378, 264

S.E.2d 420, 421 (1980) (same); see generally United States v. Santos, 128 S. Ct. 2020, 2025

4 As Justice Burnett noted, under the alternative common law rule, the British rule, a game requiring anyamount of skill at all would be outside the ambit of gambling. Seeid. at 112-13, 583-85.

5 In the opinion cited, the Attorney General was correct in its assessment of the law, i.e., that the dominantfactor test applies. He erred, however, in his determination that card games, such as poker are generally games of


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(2008) ([t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the

defendants subjected to them) (collecting cases). The municipal court was of the view that it

lacked clear guidance on the meaning of the statute at issue here. If the court itself lacked the

guidance necessary to interpret the statute, Appellants certainly lacked that guidance as well,

and the court should have construed the statute to permit Appellants behavior. It should, in

short, have held that playing poker in a house renders that house a gambling house only if poker

is, in fact, gambling under the dominant-factor test.

II. Poker Matches Are Contests of SkillUnder the dominant-factor test, poker is not gambling. As the magistrate judge held here,

the evidence and studies are overwhelming that Texas Hold-em is a game of skill. Op. at 3.

Indeed, at trial, the Town did not dispute that poker is a game of skill, and the trial courts hold-

ing that poker is in fact a game of skill is not at issue on this appeal. An understanding of poker

and how it differs from games of chance nevertheless constitutes important background in this

case. For the Courts convenience, therefore, amicus presents below an account of the skill in-

volved in playing poker, drawing upon the trial transcript, academic studies, and amicuss own

experience with the game.

As is true for similar games like golf, billiards, and bridge, when good poker players play

against bad players, the good players consistently and routinely prevail. Players who enter golf

and bridge tournaments pay a fee to enter, and earn a cash reward if they win, but these games

are contests of skill because their outcome is determined principally by skill. See Two Elec.

Poker Game Machs., 465 A.2d at 977 ([i]t cannot be disputed that football, baseball and golf

require substantial skill, training and finesse even though the result of each game turns in part

chance. S.C. Atty Gen. Op. dated Jan. 22, 2004 (2004 WL 235411). For the reasons explained in the text, and as


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upon luck or chance);In re Allen, 377 P.2d 280, 281 (Cal. 1962) (bridge requires skill and is not

a game of chance). So too with poker. To be sure, there is some accumulation of luck over the

course of a poker match that will affect how individual players perform. That is also true, for

example, of golf, where changes in the weather may produce harder greens and more head

winds for the tournament leader than for his closest pursuers or a lucky bounce may save a

shot or two. PGA Tour, Inc. v. Martin, 532 U.S. 661, 687 (2001). But, as in golf, skill is none-

theless dominant in poker play.6 The fact that every hand of poker involves multiple decision

points (at each of the multiple rounds of betting), multiple decisions at each decision point (bet,

call, raise, or fold), and innumerable factors that call for skill to evaluate each of those decisions

(for example, the players own cards, the odds of his hand improving, his sense of the strength of

the other players hand, his sense of the other players perception of him), establishes that poker

is a contest of skill.

Two general methods of determining the role of chance in an activity have developed in

state courts to analyze the issue of whether a game is one of skill or chance. The first method is

to evaluate the games structure and rules. If the structure and rules allow sufficient room for a

players exercise of skill to overcome the chance element in the game, the game is one of skill

and the gambling laws do not apply. See, e.g.,In re Allen, 377 P.2d at 281-82 (holding the card

game of bridge to be one predominantly of skill). A second approach, which the scientific com-

the court below found (Op. at 3), Texas Hold Em is game of skill, not of chance.

6

To appreciate the role that chance plays in almost every game, it is important to keep in mind just howfew games exist in which luck plays no role whatsoever. Chess is the prototypical example of a game of pure skill,because both players have perfect information regarding the others pieces and all that matters is how skillfully aplayer deploys them. The important point for present purposes is that games of pure skill are exceedingly rare; atleast some degree of luck plays a substantial role in almost every game we play. In fact, between two equallymatched chess players, the coin flip to determine who plays black or white may have an effect on the outcome. Seee.g. Jonathan Rowson, CHESS FORZEBRAS:THINKING DIFFERENTLY ABOUT BLACK AND WHITEat 193 (Gambit Pub-lications2005) (the conventional wisdom is that White begins the game with a small advantage and, holding allother factors constant, scores approximately 56% to Black's 44%.)


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munity favors, is an empirical approach that examines the actual play of the game. Using the

well-accepted premise that in a game predominated by skill the more skillful players will consis-

tently perform better (see,e.g., Patrick Larkey et al., Skill in Games, 43 MANAGEMENT SCI-

ENCE 596 [May 1997] [attached as Ex. C.]), this approach looks for specific instances over re-

peated trials to see if in fact the more skillful players tend to score better than less skillful play-

ers. Id. at 596. Each method independentlyand certainly both methods when taken to-

getherconfirms that the game of poker is a game of skill.

A. Making Correct Decisions In Poker Requires A Diverse Array Of Sophisti-cated Skills That Games Of Chance Do Not.

The essence of poker is correct decision-making. Each time it is a players turn to act, he

must choose among several decisions, typically whether to bet, raise, or fold. During the course

of a single session, a player will have to make hundreds of those decisions. In order to make the

optimal decision the player must take into account a variety of factors. The importance of deci-

sion-making in poker cannot be understated: in a recent statistical analysis of millions of actual

poker hands, the players decisions alone rather than the cards dealt accounted for the result in

76% of all the hands played. See Paco Hope & Sean McCulloch, Statistical Analysis of Texas

Hold Em at 5 (March 4, 2009).7

In other words, in those 76% of hands, all but one player

folded, making the remaining player the hands winner, and the actual cards were never revealed.

Moreover, according to this report, in roughly 50% of hands that do play to a showdown,8

a

player who would have won had he stayed in will have folded, meaning that in only 12% of

7 http://www.cigital.com/resources/gaming/poker/100M-Hand-AnalysisReport.pdf, last accessed July 23,2009.

8 A showdown is when all of the cards have been dealt and the players still in the hand expose their holdcards and the best hand wins the pot. It is only at the showdown where the winner is determined by the fall of thecards rather than by which players have folded in response to the moves of other players.


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handsthat is, half of the 24% that play to showdowndoes the player who was dealt the

luckiest hand win. With player decisions deciding close to 90% of all poker hands, the players

who consistently make good decisions will win. Those who do not will generally lose. In all, as

expert witness and champion professional poker player Michael R. Sexton testified at trial, [t]he

object of poker is to make correct decisions. Tr. at 149. The luck of the cards has little to do

with ones decision-making skills.

To make the right decisions consistently, poker players must employ a range of skills.

And by skill, we do not mean simply a sophisticated knowledge of odds. Knowledge of the odds

is simply a prerequisite to competent poker play. To be skilled at poker, players must develop an

ability to directly influence the way an individual hand turns outwho collects the pot at the

end, and how much is in the pot. Successful players must possess intellectual and psychologi-

cal skills. They must know the rules and the mathematical odds. They must know how to read

their opponents tells and styles. They must know when to hold and fold and raise. They must

know how to manage their money. Dent, slip op. at 14-15; see generally id. (concluding that

these skills determine the outcome in poker and that it therefore is not gambling under Pennsyl-

vania law). See also generally Sexton Testimony, Tr. at 154 (describing skills involved in deduc-

ing what other players are holding); Sexton Testimony, Tr. at 164 (describing how a player ex-

ploits how other players perceive him).

Of course it is true that individual moves in poker are called bets. But that vocabulary

is misleading. The bet is not a wager on a chance event. Unlike poker bets, true wagers do

not alter the outcome of the event. A bet on the Super Bowl does not change the score; bets at a

blackjack table are made before the cards are dealt; bets on roulette wheels are placed before the

ball is dropped. Bets at a poker table are different. What is called a bet in poker is really a


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move like a move in any other game: it is a strategic maneuver designed to provoke a desired

reaction from an opponent.

The importance of these moves is heightened because, in typical complex poker games, a

player must contend with a large number of decision-making stages and a variety of possible

courses of action at each stage. In each hand of Texas Hold Em, a player has four principal de-

cision-making opportunities: the first after he receives his down cards, and the next three as the

common cards are turned over in three stages. At each stage the player has available to him

many courses of action. The focus of each decision is how worthwhile it is to risk additional

chips relative to the chance of winning all the chips in the pot in that hand. These decision-

making stages reduce the element of chance in the game, since logical decision-making at each

of these stages allows the player to control whether, and how much, he wins or loses.

To make optimal moves at each of these stages, players must be mathematicians, observ-

ers of human nature, and capable deceivers. Poker players use their bets principally to com-

municate with, manipulate, and intimidate their opponents.9

Skeptics sometimes say that no

amount of skill can turn a deuce into an ace. It is true that skill cannot change the cards. But

skill allows the player with the deuce to make his opponent believe he has an ace, causing his

opponent to fold a hand that would have won the pot. So skill also means that a good player will

lose less with a deuce and win more with an ace than a bad one. See Sexton Testimony, Tr. at

175. Indeed, as noted, more than 75% of all hands are won when one player bets and all remain-

ing players fold in response. See Hope et al. at 5; see also Howard Lederer, Why Poker Is a

Game of Skill(May 6, 2008) (unpublished manuscript, attached as Ex. D).

9 As noted, poker is sometimes thought to be gambling simply because the vernacular of poker resemblesthat of gamblingplayers make bets as they play. But this Court should avoid that mistake, and should look be-


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Even in that subset of hands that do go to a showdown, the players typically are not bet-

ting on the outcome of a chance event. For example, when a poker player bets as a bluff, he is

not hoping that his cards will prove to be better than his opponents cards. Instead, the player

hopes to win the pot by convincing his opponent to fold the best hand. As noted above, in

roughly 50% of hands that do play to a showdown, a player who would have won had he stayed

in will have folded, meaning that in 88% of hands the player who eventually won the hand did so

by convincing his competitor to fold. That fact attests to the skill required of the winning

player in bluffing his competitor into folding. See Paco, Statistical Analysis at 5. Of course, a

player trying to chase another player out may get called and lose. But what he was betting on

was not what cards his opponents heldthe essence of gambling. He was betting to influence

what his opponents would dothe essence of strategy.

Furthermore, the outcome of a hand of poker is not only who wins and who loses, but

how much each player wins or loses. A players assessment of his own cards and what cards the

other players are holding will affect whether and how much the player bets. So even in the 12%

of hands that reach a showdown and in which the best hand dealt wins the pot, the players skill

will determine how much is won and how much is lost. Thus, in every single hand played, the

skill of the players determines the outcome of the game.

The importance of skill in poker is further demonstrated by the fact that a novice poker

player can improve his talents and raise the level of his game through study and accumulating

game experience. See Sexton Testimony, Tr. At 150. After only a short time, a player can ac-

quire basic game skills, such as learning when to fold and how to make the basic calculations.

yond the labels to the way the game is played. A bet on a poker hand is not a wager, because poker hands are notusually resolved by a chance event.


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The more a person continues to practice and learn, the more his skills will improve, something

that is also true for chess, golf, and bridge players.10

Together, the specific skills required to play poker, the demonstrated fact that poker hands

are won by maneuvering rather than in a showdown the vast majority of the time, and the fact

that in every hand the players skill determines the amounts won and lost by each player, show

that skill is required to be a winning poker player.

B. Skilled Players Beat Simple Players In Simulated And Real Poker Play.Several recent studies have definitively demonstrated that a player must be skilled in or-

der to win at poker. Indeed, every single study to examine this issue has reached the very same

conclusion: poker turns on skill. Until quite recently, any rigorous analysis of whether skill or

chance predominated in poker could involve only an assessment of the rules of play themselves,

because no research had assembled a statistical assessment of the role of skill in poker. The sub-

ject has now received academic attention, and the studies uniformly confirm that skill determines

the outcome in poker games. This reflects an evolving understanding, and popularization, of the

sophistication of the game of poker.

In one recent game-theoretical study, for example, the author used a computer simulation

to prove that a combination of the skills discussed above is required in order to win consistently

at poker. See Larkey,supra. For his 2001 paper on Skill in Games, Professor Larkey built a

computer model of a simplified version of poker. See id. The general behaviors mandated for

10 A significant literature is available to help the novice player develop. See, e.g., Gus Hansen,Every HandRevealed(2008); Daniel Negreanu,Power Holdem Strategy (2008); David Apostolico, Machiavellian Poker Strat-egy: How to Play Like a Prince and Rule the Poker Table (2005); Dan Harrington,Harrington on Hold Em: ExpertStrategy for No Limit Tournaments (2005); Eric Lindgren, World Poker Tour: Making the Final Table (2005); BlairRodman & Lee Nelson, Kill Phil: The Fast Track to Success in No-Limit Hold Em Poker Tournaments (2005);Doyle Brunson, Doyle Brunsons Super System: A Course in Power Poker(2002); David Sklansky, Tournament

Poker for Advanced Players (2002); David Sklansky, The Theory of Poker(1994).


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player success at this simplified game were: (a) observation, (b) memory, (c) computation, (d)

knowledge of the random device, (e) misleading opponents about the actual strength of your po-

sition, and (f) correct interpretation and forecasts of opponents behaviors. Id. at 597. To evalu-

ate the relative importance of these areas of skill, singly and in combination, the authors pro-

grammed twelve different robot players who would compete against one another. Each was pro-

grammed to use a different combination of strategies. Id.

The simplest robot only knew the rules of the gamewhen to bet and how much it was

allowed to betbut aside from that essentially played randomly and without regard to its hand.

A second robot understood the relative values of the hands. It would bet aggressively when it

was dealt a good hand, and hold back when it got a bad hand. It ignored its opponents, while

three other similar robots made conservative or aggressive assumptions about what the other

players hands contained. Another robot bluffed aggressively. The more sophisticated robots

watched their opponents betting patterns and made deductions about what those opponents were

likely to be holding. Some of these robots would bluff by playing randomly a small percentage

of the time in order to confuse other opponents capable of watching and learning.

The authors ran a tournament that pitted each robot player against each other player in

100 one-on-one games. Over the course of the tournament, the random-play robot won only

0.4% of its games. It lost $546,000. The four robots that dominated the contest were the ones

capable of sophisticated calculations about their odds of winning. The robot that could only cal-

culate odds came in fourth. The robot that could calculate odds and that also bluffed occasion-

ally came in third. But the two most successful robots of all were the robots that most closely

emulated real poker players. A robot that not only calculated odds but also observed fellow

players and adjusted its style of play came in second at $400,000. The best robot of all calcu-


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lated odds, learned about its opponents, and bluffed occasionally in order to throw its competi-

tors off track.

Even in the simplified game of poker designed for the study, with simple hands and only

two rounds of betting, the best robot was the robot with the essential skills that every poker

player learns, practices, and tries to master. It calculated the odds it was playing against, which

was essential to its success. But it outperformed the others by deceiving its competitors with

strategic bluffs while learning about and adjusting to its competitors style of play. It won 89%

of the hands it played, and earned $432,000. See Larkey at 601, table 2.

A substantial number of other studiesincluding every study ever to have addressed the

issuereach the same conclusion as Professor Larkey.

Noga Alon,Poker, Chance and Skill. Professor Alon provides a detailed analysis ofseveral simplified models of poker in order to allow a precise mathematical analysis.Though simplified, these models capture many of the main properties of sophisticatedpoker play. The article concludes that skill is the major component in deciding the re-sults of a long sequence of hands because knowledge of hand probabilities is a learnedskill fundamental to determining and implementing an advanced strategy; and an ad-vanced strategy will earn more than a strategy of an unskilled player in the long run. As

the common practice is to play many hands, the conclusion is that poker is predomi-nantly a game of skill. (Attached as Ex. E).

Laure Elie & Romauld Elie, Chance and Strategy in Poker(Sept. 2007) (unpublishedmanuscript). The Elie study expands on Professor Alons work by testing its hypothesisnot on a simplified version of poker, but on games with 2 or 4 players (up from Alonstwo-player model), with or without blind betting, and with constant or variable stakes.Using computer simulation, Elie & Elie confirmed that the quality of a players strat-egythe skill with which the player plays the gamehas an overriding influence overthe games outcome. (Attached as Ex. F.)

Abraham J. Wyner, Chance and Skill in Poker(Apr. 2008) (unpublished manuscript).Reviewing the Alon and Elie & Elie studies, Professor Wyner concludes that both stud-ies accurately described a salient fact about the game of poker: a skilled player who cancalculate the odds and bet and bluff on that basis has a substantial advantage over play-ers who lack these skills. (Attached as Ex. G.)

Peter Borm & Ben van der Genugten, On a Measure of Skill for Games with ChanceElements (1996). In order for laws restricting games of chance to be sensibly applied,Borm and van der Genugten argue that some threshold level of skill must be established


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beyond which games cease to be games of chance and become games of skill. They de-veloped a scale by which a game of pure chance ranks 0 and one of pure skill ranks1, and then sought to rank a series of games on that scale. For a 0 game, a the oddsof a beginner winning are the same as those the most advanced player winning; in a 1game, the most optimal player can always win. Blackjack, considered a game of

chance, is ranked 0.16. Based on their mathematical model, the authors conclude thatan extremely simplified poker game, with three players playing with only four cards,valued at 10, 20, 30, and 40, has a skill level more than double that of blackjack. (At-tached as Ex. H.)

Rachael Croson, Peter Fishman & Devin G. Pope,Poker Superstars: Skills or Luck? 21Chance, No. 4, 25-28 (2008). The authors compared data from 81 poker tournamentsand 48 Professional Golfers Association Tournaments in an effort to determine whetherthe success achieved by the elite poker playersindividuals who have finished in thetop 18 of at least one high-stakes Texas Holdem tournamentis due to skill or luck.Analysis of the data led the authors to conclude that poker seems to involve a signifi-cant amount of skill because success in a given tournament can be predicted based onpast success in tournament play. The authors also found that there are quantifiable skilldifferentials between elite poker players which are similar to skill differentials betweencomparably elite golfers. (Attached as Ex. I.)

Gerard Cohen, Consultation on Professor AlonsPoker, Chance and Skill. ProfessorCohen confirms the validity of Professor Alons conclusions. According to Cohen,players must adapt their strategies to the number of players (by betting less often andwith a hand that is stronger as this number increases). Moreover, the skilled playermust take into account in his or her strategy the position and the order of players aroundthe table. The importance of using these skills in real poker play, which is even morecomplex than in Alons case studies, leads him to the conclusion that skill is predomi-nant in determining poker outcomes. (Attached as Ex. J.)

Zvi Gilula, Expert Opinion. Professor Gilula concludes that winning a poker tourna-ment is depends significantly more on the participants strategic capabilities and under-standing than on luck. He notes that players must learn to: evaluate, within a predeter-mined interval of time, the strength of the hand that he holds in each stage of the game;mask his own strategy; evaluate his opponents strategies; and translate the insightswhich arise from using these other abilities into a rational decision making policy. Theeffect of these abilities is that the probability for an insightful player with strategic skillsto win a poker tournament, when playing against a player who does not have theseskills, is much higher than 50%. (Attached as Ex. K.)

Paco Hope (Cigital Inc.) & Sean McCulloch, Statistical Analysis of Texas HoldEm(Mar. 4, 2009). Hope and McCulloch examine 103 million hands of a particular pokervariantTexas Hold Emplayed on PokerStars. For each hand analyzed, they askwhether the hand ended in a showdown, and if so, whether the player with the best twocards won the hand. They conclude that in the majority of cases75.7% of the timethe games outcome is determined with no player seeing more than his or her own cardsand some or all of the community cards. In those hands, all players folded to a single


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remaining player, who took the pot. In the remaining 24.3% of hands that go to a show-down, where cards are revealed to determine a winner, only 50% are won by the playerwho, had everyone stayed in the game, would have held the winning hand. The remain-ing hands are won by a player with an inferior hand, because the player with the besthand folded. From this, the authors determine that the winner in a majority of games is

determined by something other than randomly drawn cards.

The number of identifiable skills required to excel at poker and the simulations and stud-

ies just discussed all predict that, in real life, the more skilled players will win. In fact, that is

what actual poker play makes clear. The best poker players beat other poker players as often as

the best golfers beat other golfers, if not more often. It is true that poker has a random device

(see Larkey at 597) that introduces short term uncertainty into each hand, but over time the ran-

domness of the cards evens out and all players eventually get the same share of good and bad

hands. Their results differ based on how skillfully they play those hands.

A striking example of the limited role that the cards play in determining the outcome of

poker matches may be found in the recent story of Annette Obrestad, a 19-year-old poker prod-

igy who beat 179 other playerswithout looking at her own cards (except one peek on one

hand). See Shawn Patrick Green, Online Poker: Interview With Annette Annette_15 Obrestad,

CardPlayer.com (Aug. 12, 2007).11 Obrestads feat shows it is the players skill rather than the

deal of the cards that determines the outcome of poker play.12

The same result is demonstrated by comparing the results of recent golf and poker tour-

naments. In the 25-year period beginning with 1976 and ending in 2000, 21 different players

won the World Series of Poker. One player won three times in that span (Stu Ungar), and three

more players won twice (Johnny Moss, Doyle Brunson and Johnny Chan). Three of these repeat

11http://www.cardplayer.com/poker-news/2536-online-poker-interview-with-annette-39-annette_15-39-obrestad, last accessed July 22, 2009.


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winners won back-to-back wins in consecutive years (Brunson, Ungar and Chan). Fourteen of

the twenty-one were repeat finalists who finished among the top ten in one or more of the

other tournaments.

In the same period, there were twenty-two different winners of the PGA Championship,

and three multiple winners. Only Tiger Woods won back-to-back titles. Fifteen of the twenty-

two champions made it into the top ten in another Championship. These numbers confirm that

poker requires as much skill as golf to win consistently. AccordCroson, Fishman & Pope,supra,

at 14 (Ex. I at 3-4). Two recent legal analyses reached the same conclusion. See Anthony Cabot

& Robert Hannum,Poker, Public Policy, Law, Mathematics, and the Future of an American Tra-

dition, 22 T.M. Cooley L. Rev. 443 (2005) (conducting Texas Hold Em simulations to determine

that skilled opponents beat unskilled ones); Michael A. Tselnik, Check, Raise, or Fold: Poker

and the Unlawful Internet Gambling Enforcement Act, 35 Hofstra L. Rev. 1617, 1664-65 (Spring

2007). As expert witness Professor Hannum testified at trial, the consensus view among mem-

bers of the scientific community is in agreement with my opinion that skill is the predominant

factor in poker. Tr. at 208.

It is precisely because poker requires roughly the same amount of skill as golf that poker

tournaments now rival golf tournaments in popularity on television. The only people who watch

anyone play roulette on television are casino security guards. People only watch lottery draw-

ings to see if they have won. But poker matches are spectator events because, as in any game

that people tune in to watch, it is fun to watch good players get beaten by even better players.

Like golf, poker is a game won and lost predominately on the basis of the skills of the players.

12 This example also refutes the conclusion that the chance of what a player is dealt as initial hole cardshas a substantial affect on outcome; it cannot affect someone who never looks at them.


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Appellants in this case were playing a game of skill. They were not engaged in unlawful gam-

bling.

CONCLUSION

For the foregoing reasons, the Court should reverse the decision of the Mount Pleasant

Municipal Court, hold that S.C. Code 16-19-40 does not prohibit playing poker in a private

home, and dismiss the action against Appellants.

Respectfully submitted this 30th day of July, 2009.

By: _/s/ Thomas C. Goldstein

Thomas C. GoldsteinChristopher M. EglesonJonathan H. EisenmanAkin Gump Strauss Hauer & Feld LLP1333 New Hampshire Ave., NW

Washington, D.C. 20036-1564(202) 887-4000

Kenneth L. AdamsAdams Holcomb LLP1875 Eye Street NWWashington, D.C. 20006(202) 580-8822


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JAN-16-2009 FRI 02:31 PM CAMPANA &LOVECCHIO FAX No. 570 326 3498 p. 002

COMMONWEALTH OF PENNSYLVANIA

vS

IN THE COURT OF COMMON PLEASFOR THE 26TH JUDICIAL DISTRICT,COLUMBIA COUNTY BRANCH,PENNSYLVANIACRIMINAL DIVISION

DIANE A. DENT

Defendant CASE NO; 733 OF 2008

**********************************


VS

IN THE COURT OF COMMON PLEASFOR THE 26TH JUDICIALDISTRICT, COLUMBIA COUNTYBRANCH, PENNSYLVANIACRIMINAL DIVISION

WALTER WATKINSDefendant CASE NO: 746 OF 2008

,'.' 1( ' " ',1 'IY \

JAMES, J .

THOMAS LEIPOLD, ESQUIRE, Attorney fo r the Cornrnonwealth


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Etc ." Defendants f i l ed Omnibus Pr e t r i a l Motions to suppressevidence and fo r a wr i t of habeas corpus . Defendant Watkins a lsof i l ed a motion fo r re tu rn of proper ty .held On December 15, 2008.

A hear ing a nd a rgument was

The fac t s a re simple and uncontes ted . An undercoverPennsylvania Sta te Pol ice Trooper a t t ended defendan ts ' poker gamesand provided th e fac tua l background. Defendants hos ted TexasHold 'em2 poker games in a garage t hey con t ro l l ed . Defendant Dentwas th e dea le r . Texas Hold'em was th e only game played . Thepa r t i e s placed an an te , ($1 Or $2) in th e po t before ca rd s weredea l t . Then th e players could b e t a ft e r th e i r two cards were dea l tand a f t e r each of the f lop , tu rn , and r i v e r . The playe rs could be ta s pe ci f ic d o ll ar amount o r go "a l l - i n , " i.e., whatever t hey havel e f t on th e t a b l e . Whoever had th e be s t poker hand, won th e po t .

1 Spec i f i ca l ly , the Commonwealth a l leges t h a t the defendants d id "un lawfu l lyal low persons to co l l e c t and a ~ ~ e m b l e fo r the p u r p o ~ e o f u nlawfu l gambling";~ u n l a w f u l 1 y s o l i c i t or i nv i t e any person to v i s i t any unlawful gambling placefor the purpose o f gambling n ; and being an accomplice to such unlawful gamblingi n v io la ti on of 18 Fa.C.S.A. sec. 306(1) (i) ( i i ) and (2).2 A s imple explanation of the game i s in an abs tract Explaining Winning Poker - AData Mining App ro ach by DIE J o h a n ~ ~ o n . Ceci l i a Sons t rod, and Lars Wiklasson,Proceeding of the 5 th Internat ional Conference on Machine Learning and

A p p 1 i c a t i o n ~ (ICMLA'06), "When playing Ho1d'em, each playe r i s dea l t twopr iva te cards face down. The cards are r e f e r r ed to as the hole cards . Now thei n i t i a l betting ~ o u n d takes place . A fter th at , three public cards ( the f lop) i sp la ce d fa ce up in the middls of the tab l e . The second be t t ing round fo l lows .When th e be t t ing round has f in ish ed , an oth er p ub lic card ( the t u rn ) , i s placeda longside the f lop . Next i s the t hi rd b e tt i ng round. Af te r tha t , the f i n a l .f i f th , public card ( the r i ve r ) La turned up, fo l lowed by the f i na l bet t inground. Each player still remaining in the pot now combines the publ ic cardswith he r hole cards to obta in a f ive card poker hand. When doing so , it i sp o s ~ i b l e to use one, both or none of the hole cards to obtain a f ive card pokerhand. Natural ly , the player now (at the showdown) having the bes t poker handwins the pot." This was @s sent ia ll y t he format of the game hos ted by defendants .

2


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JAN-16-2009 FRI 02:32 PM CAMPANA &LOVECCHIO FAX No, 570 326 3498 P, 004

Once a player won th e po t , the prac t ice was to "provide a t i p tothe dealer.. . . It was always up to the p l aye r to decide what t i p .It was suggested by othe r players t h a t th e peop le in charge t r e a t, the players well so t h a t you should t ip appropr ia te ly depending onif you won a l a r ge r amount in the poker pot then you should t ip thedea le r more." (Tr. p. 8 ) .

Commonwealth and defendant both agree t h a t th e con t ro l l ingi ssue i s whether Texas Hold 'em poker i s "unlawful gambling" underthe Crimes Code. 18 Pa.C.S.A. sec. 5513 (a) ( 2 ) , (a) ( 3 ) , and (a) (4)- Gambling, Devices, Gambling, Etc . s t a t e s :

(a) Offense defined. -A person i s gu i l ty of a misdemeanorof the f i r s t degree i f he:*****(2 ) a l lows persons to co l l ec t and assemble fo r th epurpose o f unlawful gambling a t any place under h iscon t ro l ;(3) so l i c i t s o r inv i tes any person to v i s i t anyunlawful gambling place fo r the purpose of gambling:or(4) being th e owner, tenant , l e ssee or occupant ofany premises , knowingly, permi ts o r su f f e r s th e same,Or any pa r t the reof , to be used fo r th e purpose o f ,unlawful gambling. (emphasis suppl ied)

"Gambling" i s " [ t ] he ac t of r i sk ing something of value , esp.money, fo r a chance to win a p r i ze . " Black ' s Law Dict ionary (7 tned . 1999) . The word "g amble" der ives from "obso le te gamel, to p laygames. from Middle Engl i sh gamen, gamenen. to play , from OldEngl ish gamenian. from gamen, fun." See The Amer ican Heri tage@Dict ionary of th e Engl i sh Language, Four th Edi t ion

3


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JAN-16-2009 FRI 02:32 PM CAMPANA &LOVECCHIO FAX No, 570 326 3498 P, 005

Copyr ight 2006 by Houghton Mif f l i n Company.Ninth New Col l eg i a t e Dic t ionary (1990).

See a l so , Webster ' s

Gambling in and of i t s e l f i s no t unlawfu l in pennsy lvan ia .See Commonwealth v . Betres , 237 Pa.Super . 361,366, 352 A.2d 495,498 (1975).3 Under Pennsylvania case law, th e re a re t h reeelements of gambling: cons ide ra t ion , chance, and reward .. "Pennsylvania Liquor Cont ro l Board v . PPC Circus Bar, I nc . , 96Pa.Cmwlth. 115, 506 A.2d 521 (1986). In our case , it i s apparen tt h a t th e an te and the be t t ing i s considera t ion and t h a t th e po t i sth e reward. Thus, th e con t ro l l i ng sub- i ssue i s whether TexasHold'em i s a game of s k i l l or a game of chance or, if ,bo th, doess k i l l trump chance o r vice-versa . Simply, if chance predominates ,Texas Hold 'em i s gambling.gambling.

I f s k il l predominates , it i s not

3 This court i s not c ommen ti ng on the so c i a l , e th i ca l , or re l i g ious ramif icat ionsof gambling in s oc ie ty . That i s not the i ssue before this cour t . ThePennsylvania Legis lature has the power to regulate g ambli ng , which i t has doneby banning cer ta in gambling and a u t h o r i ~ i n g other forms of gambling, e .g . , thel o t t ery , horse rac ing, and s l o t machines. " [G}ambling i s still a controv@rsialac t iv i ty tha t sparks emotional d e b a t e ~ in e l e c t i o n ~ and l e g i ~ l a t i v e bat t les .While os tens ib ly most debate centers around amoral pragmatic i s sues ; such asproblem and underage gambling, the rhetoric is often reduced to hyperboles, suchas re ferr ing to an y type o f gambling as the "crack coca ine Y of gambling. IntheorYt a pragmatic approach to gambling/ po l i cy , and l e g i ~ l a t i o n would involvecomparing the costs and benefi t s of a certain ac t iv i ty as the b a s i ~ forallowing, prohibi t ing, or regulating the .ac t iv i ty . Increasingly, both theopponents and proponents attempt to ju s t i f y the i r respect ive pos i t i ons ongambling on the bases of pragmatio arguments. Opponents do so as o p p o ~ e d tovoicing re l ig ious and "moral arguments. Proponents do so as opposed to vo ic ingnatura l r ight s arguments." In Poker: Public policYI Law1 Mathematias/ and theFuture or and American Tradi t ion , 22 T.M.cooley L.Rev. 443-445 (Michae lmas Term2005) (ci ta t ions omitted) .

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The s t a t e s a r e d i v i d e d as to whether Texas Hold'em i sgambling. See Poker and the Law: Is it a Game o f Sk i l l o rChance and Legal ly Does it Matter?, 11 Gaming L. Rev. 190(June 2007). Pennsylvania c o u r t s have n o t s p e c i f i c a l l yaddressed t h e i s s u e . Our c o u r t s have found t h a t poker i sgambling w it h i n t h e c o n t e x t of the Liquor Code. SeePennsylvania Liquor Cont ro l Board v. Kehler , 114 Pa.Cmwlth.310, 538 A.2d 979 (1988) . The pennsylvania Supreme Cour t hasfound t h a t c e rt a i n e l e c tr o n ic poker machines c o n s t i t u t e dgambling devices s i n c e " t h e element o f chance predominates andt h e outcome i s l a r g e l y determined by chance ." Commonwealth v .One E l e c t r o - S p o r t Draw Poker Machine, 502 Pa. 186, 195, 465A.2d 973, 978 (1983) .

However, t h e One E l e c t r o - S p o r t Draw Poker Machine c o u r tw r e s t l e d with t h e concepts o f s k i l l v e r s u s chance w i t h i n t h egambling d e f i n i t i o n c o n t e x t . The c o u r t concluded t h a t U[tJhes k i l l involved in E l e c t r o - S p o r t i s n o t t h e same s k i l l whichcan indeed determine t h e outcome in a game o f poker betweenhuman p l a y e r s can be a p p r e c i a t e d when it i s r e a l i z e d t h a th o l d in g , f o ld in g , b l u f f i n g and r a i s i n g have no r o l e t o p l a y in

E l e c t r o - S p o r t poker . S k i l l can improve t h e outcome i nE l e c t r o - S p o r t ; it c anno t d ete rm in e it." Id . 502 Pa. a t 196,465 A.2d a t 978.

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s ince the 1980 's a vibran t poker i ndus t ry has explodedacross the coun try - on-l ine, on t e lev i s ion , and in many o the rvenues . Many books and a r t i c l e s have been publ i shedexpla in ing and d is sec t ing the game. One webs i te l i s t s over600 books dea l ing with a l l aspects of poker .www.holdemsecrets .comXbooks-ti t le .htm The compel l ing casetha t Texas Hold'em i s much more a game of s k i l l i s found inmany d iv er se s ou rc es . Without s t a t i s t i c a l ana lys i s , many ofthese "how -to " books s t a t e unca tegor ica l ly t h a t poker i s agame of sk i l l . See, e .g . , Caro ' s Secre ts of Winning Poker ,by Mike Cara (Cardoza Publ ishing 4 t h ed . 2008, p . 17) , whichsays t h a t " [ i ]n poker , a game of sk i l l , the money f lows fromthe bad p laye rs to the s trong players .t ha t ."

It's as s imple as

However, academics and r e sea rche r s have founds c i en t i f i c and s t a t i s t i c a l bases fo r th e propos i t i on t h a tpoker i s a game of sk i l l . For example, one exce l l en t academicabs t r ac t repor ted the resu l t s of a s t a t i s t i c a l s tudy of onl inepoker in order to explain what s i gn i f i e s success fu l play . SeeExp la in ing Winning Poker - A Data Min ing Approach by UlfJohansson, Cec i l i a Sons t rod , and Lars Niklasson , Proceeding ofthe SOh I n t e rna t i ona l Conference on Machine Learning andAppl ica t ions (ICMLA'06). These Swedish re sea rche rs conducteda s t a t i s t i c a l ana lys i s as to what sk i l l s make a success fu l

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Texas Ho1d'em poker player . The au thors note t h a t " [a ] s mostbeginners soon f ind out , Ho1d'em i s a very soph i s t i ca t ed game,requ i r ing mastery of many d i f f e r en t sk i l l s . " The au thors aimwas to exp la in what makes a p la ye r s uc ce ss fu l. In address ingt h i s cour t ' s i ssue , they s t a t e " [ t jhe re i s def in i t e ly anelement of chance in th e game of poker, bu t there i s gene ra lagreement th a t , in the long run, good players wi l l win moneyand bad players wi l l lose money." These researchers c rea tedfour c ateg orie s of p la ye rs , from weakest to s t ronges t - a"ca l l ing s t.e t i onv r a "rock" i the- "maniac" i and the "sol idplaye r . " Afte r a s t a t i s t i c a l ana lys is , th e au tho rs found t h a ta l l four ca tegor ies of players had ce r t a in bas ic playingcha rac t e r i s t i c s which accounted fo r t h e i r success or f a i l u r eas a playe r .

With the advent of i n t e rne t poker and tournament pokerhas Come a spate of very in s t ruc t ive law review analyses o fgambling law and poker . I n C h e c k , R a i s e , or F o l d : P o k e r a n dt h e U n l a w f u l In t erne t G a m b lin g E n f o r c e m e n t A c t , 35 Hofs t ra L.Rev. 1617, 1662-1663 (Spring 207) ( c i t ing Morrow v. S ta t e , 511p.2d 127 (Alaska 1973) , the author discusses th e t e s t s inothe r j u r i sd ic t ions fo r whether or not poker i s a game o fs k i l l Or chance:

The quest ion of poke r ' s placement a long the sk i l l - chancespectrum i s not new to th e realm o f th e cour thouse . Indetermining whether chance governs , and th e subsequent

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appl ica t ion of each s t a t e ' s ind iv idua l gambling laws ,'courts genera l ly employ One of two guides : (1 ) th e purechance doct r ine or (2 ) th e dominant fac to r t e s t . Theformer being def ined as a scheme in which th e pe r son ; sjudgment plays no pa r t in the se l ec t ion and award of th epr ize and th e l a t t e r being a scheme where chancedominates the d i s t r i bu t i on of pr i ze s , even though such ad i s t r i bu t i on i s affec ted to some degree by th e exe rc i seof sk i l l or judgment .Most j u r i sd i c t i on s favor th e dominant fac to r t e s t(emphasis supp l ied) . The dominant fac to r doc t r i ne i se s sen t i a l l y what th e name impl ies . The cour t determineswhether chance o r s k i l l i s th e dominant fac to r of th egame, recogniz ing , s imi l a r to Hur t ' s a r t i c l e , t h a t thed i s t inc t ion runs along t h a t o f a spect rum. In d ec id in gwhere on th e spectrum any pa r t i cu l a r game f a l l s , th ecour t s have devi sed a four pa r t t e s t . The e lements indeciding whether ab i l i t y governs a re t h a t : (1)pa r t i c ipan t s must have a d i s t i n c t poss i b i l i t y ofexerc i s ing s k i l l and must have su f f i c i en t data upon whichto ca lcu la t e an in form ed judgm ent; (2 ) pa r t i c i pan t s musthave th e o pp or tu n it y to exe rc ise the sk i l l , and th egenera l c la s s o f pa r t i c ipan t s must possess th e s k i l l ; (3 )s k i l l o r the com pet ito rs ' e f f o r t s must su f f i c i en t l ygovern th e r e su l t ; and (4 ) th e s ta nd ard of s k i l l must beknown to th e pa r t i c ipan t s , and t h i s s tandard must governth e r e s u l t . ( c i t es to f oo tn ot es om i tt ed ) .

The Ho fs tr a a uth or opines t h a t poker i s a game o f sk i l l :

[P]oker should no t cons t i t u t e a "game sub jec t to chance . "The cour t s sh ou ld lo ok no fu r t he r than the d i s s en t i ngopinion in People v . Mitche l l , 444 N.E.2d 1153, 1155( I l l .App .Ct1983) ] :

The Sta te argues t h a t poker i s no t a game o f s k i l l buti s a game of pure chance o r luck . This a l l ega t i on i s acanard . Anyone fami l i a r with even the ba re s t rudimentsof the game knows be t t e r . Pure luck? Send a neophytep l aye r ' t o a Saturday n igh t poker game w ith s ea so ne dplayers and he wi l l l eave h is c lo thes behind and walkhome in a ba r r e l . Pure luck? This i s t rue o f bingo o rl o t t e r y . But it cannot be sa id of poker . The cou r tshould take j ud i c i a l not i ce t h a t poker i s a game of

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sk i l l . It cannot be gainsaid , of course , t h a t the re i san element of luck in poker. Of course t he re i s . Therei s an element of luck in everyth ing in l i f e . Even theprosecu t ion of a law su it c on ta in s an element of luck .But everything t h a t contains an element of luck i s no tgambling. I f th e fe de ra l c ou rts proceed to c l a s s i fypoker as a s k i l l game, then the Act would no t app ly .Based on the verb iage of the def in i t ion o f wager pokerwould once again be f ree ly playable on th e In te rne t .

I f the federa l cour t s are to base t h e i r analyses on thedominant f ac to r t e s t , then poker would not be c l a s s i f i edas a game of chance . Applying those e lements , it i sfa i r ly ev iden t t h a t s k i l l i s the dominant f ac to r . Asshown, there i s ample data upon which one can ca l cu l a t ean informed judgment . The data i s bas ic a r i thme t i cappl ied on a cons i s t en t bas i s . For the second and four thelement, the argument may be made t h a t the s k i l l l eve l i sno t equal throughout , and t h a t the d i spa r i t y of s k i l l i snot known. This in fac t i s en t i re ly t rue . However, th eoppor tun i ty to l ea rn t h i s s k i l l i s widely ava i lab le . But,even mOre important ly , the general consensus (e ven tho ug hthere i s no sc i en t i f i c proof fo r i t ) i s t h a t most pokerp la ye rs are qu i te savvy to the ex ten t of th e fundamentalsk i l l s of the game. Very few novices play fo r s takes , andin tu rn , the second element i s s a t i s f i ed . As fo r th efourth element, th e s tandard of s k i l l would be known toa l l par t i c ipan t s if poker were to be regula ted on th eI n t e rne t . Many crea t ive ways can be es tab l i shed to keepthe unsuspect ing from being f leeced. One, fo r example,would be to c r ea t e a ranking system s imi la r to t h a t ofchess in which cumulat ive wins and losses a re recorded,re su lt in g in a ranking . Fina l ly , the t h i rd element , l i kethe f i r s t , has a l ready been addressed to show t h a t thecompet i to r ' s s k i l l su f f i c i en t l y governs th e r e s u l t .( c i t es to fo otn ote s omi t ted) .

35 Hofs t ra L. Rev. a t 1664-1665.In Poker: Pub lio Polio y, Law, Mathematios, and the

Future o f and Amerioan Tradi t ion, 22 T.M.Cooley L.Rev. 443(Michaelmas Term 2005) , the au thors comprehens ive ly r ev i ew theh is to ry of poker, gambling law in various s t a t e s , the s k i l lversus chance conundrum, and publ ic pol i cy . They spec i f i c a l l y

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discuss the "Mathematics of Poker" which i s worth quot ing a tl eng th :

Gambling games can be categorized as those of pure chanceand those invo lv ing an elem ent of s k i l l . Games o f purechance inc lude rou le t t e , craps , keno, bingo,( t r ad i t i ona l ) s l o t s , and l o t t e r i e s . In these games, th eoutcome i s determined by chance a lone , and no s t ra t egy orsk i l l can a f f ec t the l o n g ~ r u n percentage of money won orl o s t . Casino games involving s k i l l i nc lud e b la ckj ack ,v id eo p ok er, and many of the newer p o k e r ~ b a s e d cas inogames such as Caribbean stud poker , l e t it r ide poker ,and th ree -ca rd poker . In th ese types of games, thepercen tage of money won or l o s t i s a d ir e ct r ef le c tio n ofa playe r 'S l eve l of sk i l l .Poker i s predominate ly a game of s k i l l , al though chanceplays a ro l e . Most authors emphasize t h a t in the long runa sk i l l ed playe r wi l l beat an unsk i l l ed player . Thegenera l argument i s tha t the cards wi l l "even out" Overthe long term (which they wi l l , assuming random deals) ,and the winners wi l l be the be t t e r playe rs . Numerousau thors have drawn analogies between poker and othe rendeavors involving s t r a teg ic -dec i s ion making. ' I t i s notsu rp r i s ing t h a t John von Neumann and askar Morgensterndevoted an en t i r e chapter to poker in t h e i r seminal bookon game theory . Von Neumann drew a s t rong connect ionbetween poker and economics :A seemingly t r i v i a l and playfu l pu r su i t l ike poker mighthold the key to mOre ser ious a f f a i r s fo r two reasons .Both poker and economic compet i t ion requ i re a cer t a intype of reason ing , namely the r a t i ona l ca lcu la t ion ofadvantage and disadvantage based on some i n t e rna l l ycons i s ten t system of values ( 'more i s be t t e r than l e s s ' ) .And in both , th e outcome fo r any i nd iv idua l ac to r dependsno t only on h is own ac tions , bu t on the independentac t io ns o f o the rs .In comparing poker to o the r games invo lv ing an element ofsk i l l , one gambling author and expe r t wr i t e s :There are a few profess iona ls who earn a l iv ing play ingblackjack, and even fewer who sus ta in themselves playingvideo poker , bu t it's tough. Per fec t play wi l l produce aone to two p er ce nt p la ye r edge. Sk i l l has a pa r t in those

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c o n t e s t s , b u t luck and t h e p e r c e n t a g e s still hold t h eg r e a t e s t sway.It's t h e o t h e r way around i n poker . ,Bad luck can h u r t ,but s k i l l always b e a t s luck over time.S e r i o u s and s k i l l e d poker p l a y e r s tend to winc o n s i s t e n t l y , while those r e l y i n g on luck do n o t . I fs k i l l were n o t a s ig n if ic a n t f ac t o r , t h e c o l l e c t i o n o fwinners would be more r e p r e s e n t a t i v e of a randoms e l e c t i o n from t h e f i e l d of a l l p l a y e r s . I f you ask whoa r e t h e top f i v e poker p l a y e r s ' i n t h e world, you w i l lr e c e i v e a meaningful r esponse bec au se s k i l l i s adetermining f a c t o r . But i f you ask who a r e t h e top f i v er o u l e t t e p l a y e r s i n the world, t h e response i s u t t e r l ymeaningless: r o u l e t t e i s p u r e l y a game of chance. AS seenbelow, much anecdotal evidence e x i s t s among a u t h o r s ande x p e r t s r e g a r d i n g t h e r o l e of s k i l l i n poker . Thec o l l e c t i v e e x p e r t opinion i s u ne qu iv oc al: p ok er i s a gameof s k i l l , and i n the long run, a s k i l l e d p l a y e r w i l l b e a tan u n s k i l l e d p l a y e r . The f ol lo w in g p as sa ge s a r e t y p i c a l :Over t h e long run everybody g e t s t h e same p r o p o r t i o n ofgood and bad c a r d s , of w inn ing an d l o s i n g hands.Beginning poker p l a y e r s r e l y On b i g hands and l u c k ydraws. E xp ert p oke r p l a y e r s use t h e i r s k i l l s t o minimizet h e i r l o s s e s on t h e i r bad hands and maximize t h e i rp r o f i t s On t h e i r b i g hands. They a l s o a r e a b l e t o judgeb e t t e r than o t h e r s when a b i g hand i s not t h e b e s t handand when a smal l hand i s the b e s t hand. . For aboveall. . poker i s n o t p r i m a r i l y a game of luck . It i s agame of s k i l l .One of t h e f i n e s t i l l u s t r a t i o n s o f t h e laws o f chance i sf u r n i s h e d by t h e game of poker. It i s not a game of purechance, l i k e d i c e and r o u l e t t e , b u t one i n v o l v i n g a l a r g eelement of s k i l l o r judgment .I n any Poker game, be it Stud o r ,Draw Poker o r any oft h e i r c o u n t l e s s v a r i a t i o n s t h a t combine s k i l l and Chance,t h e more s k i l l f u l p l a y e r w i l l win t h e money i n t h e longrun. . Poker c o n t a i n s a g r e a t e r s k i l l element thanany o t h e r c a r d game, i n c l u d i n g C o n t r a c t Bridge, p i n o c h l eand Gin Rummy. Poker i s t h e one and only game where as k i l l e d p l a y e r may hold bad c a r d s f o r hours and still wint h e money.Poker i s a game of s k i l l ; luck and psychology a l s o p l a y ap a r t , b u t u n l i k e o t h e r casino games t h a t r e l y e n t i r e l y on

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luck , winning poker requ i res s k i l l . A s k i l l f u l pokerp l aye r can change the odds in th e game to h is favor byus ing pos i t ion , psychology, blu f f ing , and o the r methodsto inc rease h is chances to win th e po t and in cre as e th es i ze of th e po t s he wins.The excerp ts above a re no t anomalous; it i s d i f f i c u l t tof ind an exper t who does no t cla im t h a t success in pokerdepends in l a rge pa r t on sk i l l .As one au thor pu t it, "There ' s no doubt t h a t luck p l ays amajor ro l e in shor t - te rm poker su ccess , bu t over th e longrun poker i s ce r t a i n l y a game o f sk i l l . " Another wr i t e s"The r e s u l t from an ind iv idua l poker ses s ion has a lo t todo w ith luck . The s t ruc t u r e of th e game, however, is sucht h a t a p l aye r wi th an u nd ers ta nd in g o f the game can be along- term winner , whereas t hose who don ' t r e a l l yunders t and th e game wi l l be l o s e r s . "Exper t s agree there a re seve ra l components to th e s k i l lnecessary to p lay poker wel l . These inc lude mathemat ics ,psychology , assess i ng c ompe ti ti on , r ea din g hands,recogniz ing t e l l s , exp lo i t ing pos i t i on , and moneymanagement. These fa cto rs a re , of course , i n t e r r e l a t ed ,and good poker s t ra t egy and t a c t i c s r equ i r e th e uSe of acombinat ion of these s k i l l components . Decept iveness andb lu f f i ng a re es s en t i a l to th e game. In h is c l a s s i c bookon th e theo ry of gambling, Richard Ep ste in n ote s t h a tpoker games have a l a rge number o f s t r a t eg i c a l t e r n a t i v e sand ce r t a in t ypes , such as f ive -ca rd s tud and seven-cards tud , a re a lmos t pure ly s t r a t e g i c .

Id . At 465-468 ( c i t a t ions to fo otn ote s omit ted)In determining th e sk i l l / chance aspec t of gambling. some

s t a t e s have r e l i ed on a "predominance t e s t . " Under t h i s t e s t"an a c t i v i t y i s cons ide red i l l e g a l gambling if a person r i sk ssomething o f va lue on an ac t i v i t y predominate ly determined bychance fo r the oppor tun i ty to win something of g re a t e r va luethan he o r she r i sked . " Id a t 445. The Pennsylvania cou r t sappear to be in l i n e w ith those us ing th e predomiriance t e s t .

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See Commonwealth v. One Elect ro-Sport Draw Poker Machine,supra.

Using the predominance t e s t , in conj un c ti on w i thanalyzing sk i l l versus chance using the four prong dominantf ac to r t e s t 4 , it i s apparen t t h a t sk i l l predominates overchance in Texas Hold'em poker . Fi r s t , each playe r has ad i s t i n c t pos s ib i l i t y of exerc i s ing sk i l l and has su f f i c i en tdata a va i la ble to make an inform ed judgment. Second, eachplaye r has th e o pp or tu nity to ex erc ise the sk i l l , and they dopossess the s k i l l ( a l be i t in varying degrees) . Third , eachplayer 'S sk i l l and e f fo r t s su f f i c i en t ly govern th e r e su l t s .Fourth , the s tandard s k i l l i s known by the playe rs and governsthe r e su l t s . Sk i l l comeS with varying degrees of competence,but tha t i s the case with any compet i t ion involving sk i l l .

The academic s tud ies and the experts gene ra l ly agree t h a ta playe r must be sk i l l f u l to be successfu l a t poker. At theout se t , chance i s equal ly d is t r ibu ted among th e playe rs . Butthe outcome i s eventua l ly determined by s k i l l . Success fu lplayers must possess i n t e l l e c tua l and psychological sk i l l s .They must know the ru l e s and the mathematical odds. They mustknow how to read t h e i r opponents " t e l l s " and s t y l e s . They

4 ~ S e a In Chaok, Raise, or Fold: Poker ~ n the Unlawful In ternet GamblingEnforcement Act, 35 Hofstra L. Rev. a t 1663, supra,

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must know when to hold and fold and r a i s e . They must know howto manage t h e i r money.

This cour t f inds t ha t Texas Hold'em poker i s a game wheresk i l l predominates over chance. Thus, it i s no t "unlawfulg amblin g' u nd er the Pennsylvania Crimes Code.

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DIANE A. DENT


"\JWN

IN THE COURT OF COMMON PLEASFOR THE 26TH JUDICIAL DISTRICT,COLUMBIA COUNTY BRANCH,PENNSYLVANIACRIMINAL DIVISION"

~ ~ ~ , ~ ~ '.C',************************************

Defendant

vs


vs

IN THE COURT OF COMMON PLEASFOR THE 26TH JUDICIAL DISTRICT,COLUMBIA COUNTY BRANCH,PENNSYLVANIACRIMINAL DIVISION

WALTER WATKINSDefendant CASE NO: 746 OF 2008

ORDER

AND NOW, t h i s 14 t h day o f January 2009, defendan t s 'Motions fo r Writ o f Habea s Corpus i s GRANTED. The cases aga in s tth e defendants a re DISMISSED. The proper ty se i zed from defendantWatkins sha l l be r e tu rned to him fo r thwi th .

BY THE COURT:

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3 of 6 DOCUMENTS

Copyright 2009 Fort Collins Coloradan

All Rights Reserved

Fort Collins Coloradoan (Colorado)

January 30, 2009 Friday

SECTION: LOCAL; Pg. 3A

LENGTH: 578 words

HEADLINE: Definition clears man of gambling charges

BYLINE: TREVOR HUGHES

BODY:

TrevorHughes @coloradoan.com

When Windsor resident Kevin Raley started helping to organize friendly poker tournaments in a Greeley bar, he

never thought he'd end up in court facing charges of illegal gambling.

But following an undercover investigation by the Colorado Bureau of Investigation, Raley and four other players

were arrested in August. They were charged with professional gambling and illegal gambling, and faced jail time if

convicted.

Last week, however, a Weld County jury agreed with Raley's argument that poker games between friends are just

that - poker games between friends. The jury acquitted Raley on a charge of illegal gambling after prosecutors dropped

the professional gambling charge before the trial began.

"We never believed we were doing anything wrong whatsoever," Raley said. "It's entertainment. Some people go to

the movies. Some people play golf. I play poker."

The national Poker Players Alliance helped Raley, a software consultant, mount his defense, paying for an expert

witness to testify that poker is a game of skill, not chance.

Under Colorado law, illegal gambling "means risking any money, credit, deposit, or other thing of value for gain

contingent in whole or in part upon lot, chance, the operation of a gambling device, or the happening or outcome of anevent, including a sporting event, over which the person taking a risk has no control, but does not include bona fide

contests of skill."

The PPA's expert, professor Robert Hannum of the University of Denver, testified that poker isn't dependent

primarily on chance but on each player's skill. Hannum is a professor of statistics and is the author of the book

"Practical Casino Math."

Hannum said there are many factors that go into how a player plays a game of poker, and few of them are based on

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chance.

"There are a lot of facets to the skill, in terms of knowing the math and the odds, reading the people, trying to glean

what other players' hole cards might be. But it's all expressed in the decision they make in how much money, if any,

they are willing to invest," Hannum said.

He noted that a skilled poker player will beat an unskilled one "consistently and probably convincingly," but that

true games of chance require no skill.

In a statement, the PPA lauded the jury's decision and said it hoped the outcome would help law enforcement to

focus on what it said is "real unlawful activity."

"... The not-guilty verdict cements the rights of Colorado citizens to enjoy the American pastime of poker and will

allow law enforcement to use its scarce resources to investigate real unlawful activity in the state, not poker games,"

Colorado state PPA director Gary Reed said.

Prosecutors dropped the professional gambling charge against Raley before the case went to trial. The illegal

gambling charge carried a maximum penalty of a $100 fine.

A spokeswoman for Weld County District Attorney Ken Buck said prosecutors felt the case was an "appropriate"

one to present to a jury. CBI spokesman Lance Clem said CBI agents got involved at the request of Greeley police.

"We thought we helped put together a good case and still feel that way," Clem said.

R

Documents

SC Appeal Amicus Brief (07/29/09)