August 28 2012, Rich Ryan

Last Tuesday, Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York filed his opinion in the case of the United States of America vs. Lawrence Dicristina. Dicristina was charged with operating an illegal gambling business because he hosted poker games, and the prosecution claimed that he was violating the Illegal Gambling Business Act (IGBA).

The IGBA defines “gambling” as:

“Include[ing] but . . . not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.”

There is no mention of poker in that statement.

Judge Weinstein’s 120-page opinion touches on subjects such as the win-rate of king-nine offsuit, but more importantly, the conclusion could change the landscape of poker in America forever:

“Neither the text of the IGBA nor its legislative history demonstrate that Congress designed the statute to cover all state gambling offenses. Nor does the definition of “gambling” include games, such as poker, which are predominated by skill. The rule of lenity compels a narrow reading of the IGBA, and dismissal of defendant’s conviction.”

Well, it’s about damn time.

1. Poker is (still) a game of skill

Colin Cowherd, host of The Herd on ESPN Radio, is one of the most popular sports talk radio hosts in the country. The day after Judge Weinstein offered his opinion, Cowherd led his nationally syndicated show with this monologue:

“This is the strangest opening ever to my show. I’ll never ever ever open with this topic again. It’ll never happen. I don’t even play this sport. I’m not even into it. I certainly don’t watch it. But something happened yesterday that’s good for America…I don’t play poker. I’m not into it. But can I tell you that yesterday somebody finally got it right. Now, I lived in Vegas for seven years, so I’ve always been a little more pro-Vegas than everybody else – and I’m not going to spend a ton of time on this – but yesterday, a judge in Brooklyn got it right. Federal Judge Jack Weinstein gave poker players a winning hand yesterday. He ruled that poker is a game of skill, not luck, and, therefore, legal under federal law. Finally, a federal judge got it right…You can’t make a living on luck. Bill Belichick is lucky. Belichick had a losing record in Cleveland, was 5-11 in New England his first year, and 0-3 the second year. [Drew] Bledsoe out, [Tom] Brady in. One hit knocked out Bledsoe. Suddenly, Bill’s a genius…Nobody makes a living – and a healthy one – on luck.”

Cowherd reiterated his opinion later in the show, and professional poker player Aaron Steury uploaded it onto his YouTube page.

Cowherd is spot on and his analogy about luck in sports is very appropriate – especially in the NFL, which is arguably the most popular sport in the country. There is a lot of variance in the NFL because the schedule is so short (9.8 percent the size of the MLB schedule, and 19.5 percent of the NBA and NHL schedule), yet Super Bowl champions are immortalized.

In poker, if a player wins four flips in a row, we call them a luckbox. In sports, if a team wins four miraculous games in a row, we call them gritty, tough, and clutch.

Cowherd misspoke when he said that poker is now legal under federal law however – PokerNews’ Matthew Kredell states that, “a judge in another district could also make a ruling contrary to Weinstein’s at any time.”

There is hope that Weinstein’s decision will set a precedent, however, because, according to Kredell, Weinstein is a well-respected senior judge, and was appointed by President Lyndon B. Johnson in 1967.

The “rule of three” is one of the most common principles of storytelling. There’s the Three Little Pigs, Goldilocks and the Three Bears, Three Blind Mice, Ebenezer Scrooge is visited by three ghosts in A Christmas Carol, the wicked Queen attempts to kill Snow White three times, and Harry Potter is littered with examples of the rule of three, including the trio of protagonists: the three Deathly Hallows, the Triwizard Tournament, etc.

Judge Weinstein’s decision is the third key act in the post-Black Friday narrative. First, in November 2011, the U.S. Department of Justice gave an opinion stating that the Wire Act does not apply to poker. Second, in August, the DOJ and PokerStars settled, saving Full Tilt Poker’s customers and positioning PokerStars to reenter the U.S. market. And of course third, Judge Weinstein rules that poker is a game of skill.

The narrative isn’t complete, but we’re certainly going in the right direction, and positive national coverage from strong voices like Cowherd helps tremendously.

2. Pobal and Polito conquer Barcelona, but Bilokur and Sahamies are beasting

The 2012 PokerStars.com European Poker Tour Barcelona stop concluded this weekend with the “5,000 Main Event and the “10,000 High Roller. France’s Laurent Polito (“270,229) took down the High Roller, but made less money than runner-up Alex Bilokur (“295,451) because they made a deal during heads-up play. Tobias Reinkemeier (3rd for “119,660) and Team PokerStars Pro Bertrand “ElkY” Grospellier (7th for “43,150) were also at the final table.

In the Main Event, Belarus’ Mikalai Pobal won without making a deal, defeating Ilari Sahamies heads-up, earning “1,007,550 and the hardware. Sahamies pocketed “629,700 – adding to the “291,900 he earned for a fourth-place finish in the “50,000 Super High Roller – and John Juanda finished in eighth place, earning “76,100.

Neither Polito nor Pobal had ever binked a six-figure score before their respective victories, and they deserve credit for their achievements, but I’d like to focus on Bilokur and Sahamies.

With over $1.6 million in live tournament earnings this year, Bilokur currently sits 21st on Hendon Mob’s 2012 Money List. Bilokur took down the $25,000 High Roller at the PokerStars Caribbean Adventure in January, bubbled the final table of the “25,000 High Roller at the PokerStars and Monte-Carlo® Casino EPT Grand Final, and cashed four times at the 2012 World Series of Poker. In 2011, Bilokur’s biggest score was for only $38,738. He’s one of Russia’s best up-and-coming players, and seems to thrive in high-roller events.

Sahamies is not known for his tournament skills; rather he’s an online cash grinder who occasionally appears in Finnish rap videos. In fact, before EPT Barcelona, his previous live tournament scores came in October 2011, June 2010, and September 2009. Well, Sahamies crushed EPT Barcelona, final-tabling two of the three marquee events and banking over $1.1 million in the process.

Oh, and he also provided us with one of the best GIFs of 2012 (courtesy of PokerNews.nl’s Frank op de Woerd).

It will be interesting to see whether Sahamies pops up at more events in Europe, or whether he simply cherry-picked Barcelona for other reasons (weather, fútbol, topless beaches, partying, topless beaches etc.). We sure hope to see him more often, if not for his great play, then for his overall goofiness and ability to create hilarious memes.

3. Galfond dissects Blom

Every month or so, Phil Galfond writes a very long, well-thought-out blog post over on PhilGalfond.com. This month, he dissected Viktor “Isildur1” Blom using over 2,200 words and three (rule of three!) well-known discussion points: the myth, the man, and the legend.

Galfond, who once beat Blom out of $1.6 million in one day playing $300/$600 and $500/$1000 heads-up pot-limit Omaha (or as TwoPlusTwo poster jjjjudas jokingly called it “HUNL+2 cards” in his fictitious response from Blom), says that he felt like a fan watching his clashes against Tom Dwan, Phil Ivey, and Patrik Antonius.

“I couldn’t wait to grab my front-row seat and watch the spectacle,” he writes.

According to Galfond, he’s played more hands with Blom than any other player in his career as a poker player and that Blom has progressed greatly as a PLO player.

“When I first played PLO against Viktor back on FTP, he was bad,” Galfond admits, but it all changed. “By early 2012, Viktor had not only become very good at PLO – he’d become the toughest opponent I’ve ever played against. Now he’s one of three opponents that I play with but genuinely have no clue whether I have an edge or not.”

Unfortunately, Galfond doesn’t reveal the other two players, but he does talk about meeting Blom in Vegas during the 2012 WSOP. According to Galfond, Blom, who is basically a mute in the eyes myself and fellow poker writers, is “happy-go-lucky.” I’ve seen his goofiness occasionally – it usually occurs when Luke Schwartz is around – but his unwillingness to speak in public doesn’t allow him to show of his more likable features to his fans.

Galfond also says that Blom doesn’t use any databases or heads-up display (HUD), and that he doesn’t watch training videos.

Finally, Galfond concludes with something rather profound: “In my opinion, Viktor Blom clearly has more raw poker talent than I do.”

He explains that while he thinks Blom can succeed at any form of poker he focuses on, he needs to improve his discipline. One of Blom’s major leaks is bankroll management, or lack thereof, and poor bankroll management will hinder even the best player if they wish to play profitably over an extended period.

Galfond’s insights regarding Blom are fascinating and surely worth your time if you’re at all interested in the Swedish wunderkind.

4. Aguiar vs. Marafioti

Matt Marafioti, who was recently accused of cheating alongside Samer Rahman by numerous members of the TwoPlusTwo community, and Johnathan Aguiar, who is one of poker’s more opinionated figures, got into a scuffle at the World Poker Tour Legends of Poker on Friday.

Allen Kessler posted the following on TwoPlusTwo:

If Kessler is correct, and the WPT has footage of this incident, I hope they air it. Furthermore, I hope Matt Savage bans Marafioti from playing in WPT events, and that other poker rooms and tours follow suit. There is no room for this nonsense, and we should put an end to it before somebody really gets hurt. Whatever Marafioti is doing isn’t good for either himself or the poker world, and the best thing for both parties is to take a really long vacation.

If Marafioti wants to keep playing poker because that’s his main source of income, then he should play online and avoid major circuit stops. His appearances will only cause more tension – even Jason Mercier one of the most positive people in poker, is lobbying against Marafioti.

Outside of a few jokes, Aguiar hasn’t commented on the subject much since the altercation. Marafioti has probably tweeted 10 million times, but his account is blocked and I have no interest in reading his rambling. This altercation is over, and nobody was seriously harmed or injured, but I don’t think it’s the end of Marafioti’s negative influence on the poker world.

5. To infinity, and beyond

On Monday, CardPlayer Europe reported that Jens “Jeans89” Kyllönen paid “160,000 to reserve a seat aboard Virgin Galactic’s space flight. Sir Richard Branson, the Chairman of Virgin Group, established the space tourism company in 2004. In 2009, Guy Laliberté became the first Canadian to fly with Virgin Galactic and spent 11 days on board the International Space Station.

Kyllönen was one of the 48 players who participated in the $1 million Big One for One Drop at the 2012 WSOP, but unfortunately he was the third player eliminated. The Finnish poker pro told CardPlayer Europe: “I’ve always been fascinated with space and now that I have the opportunity to be within the first people going, I just felt like I had to do it.

The news sparked a thread on TwoPlusTwo, and to no surprise it became littered with Photoshopped images of Kyllönen in space. Kyllönen’s trip is expected to be at the beginning of 2014.

This is so much cooler than buying a house, or a watch, or a car, or even multiple houses, watches, and cars. The man is going to go into space. Personally, I think it’s the greatest thing any poker player has ever done with his or her money (besides give it to charity or those in need obviously), and more affluent poker players should spend their money more creatively.

Maybe fellow countryman Sahamies will actually land on a planet some day as a way of raising Kyllönen, or perhaps he’ll just frown and look discontented with everything.

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August 25 2012, Maurice “Mac” VerStandig

An expert on the American gaming scene, Maurice “Mac” VerStandig is well-versed in areas of casino management from common issues of fraud and theft prevention to the Unlawful Internet Gambling Enforcement Act and Indian Gaming Regulatory Act. With a background heavy in bankruptcy work, VerStandig is also skilled in the strategic valuation and monetization of complex assets, and applies that knowledge to all areas of his practice, from fraud recoveries to traditional insolvency proceedings. Here, Verstandig offers his expert opinion on the recent ruling by a federal judge that poker doesn’t constitute “gambling.”

Mac Verstandig

In a landmark 120 page opinion, one of the country’s most noted courts has ruled that poker is a game of skill, as opposed to one of chance, and accordingly falls outside the purview of a major federal anti-gambling law. Complete with charts, graphs, and lengthy expert analyses, the opinion comes from the matter of United States v. DiCristiana, a criminal case brought in the United States District Court for the Eastern District of New York, under the Illegal Gaming Business Act (“IGBA”). Assuredly, though, the opinion’s ramifications stretch well beyond the tribulations of this particular defendant, and well beyond the eastern expanses of the Empire State.

The case centers on Mr. DiCristiana, who ran a legitimate bicycle business out of a New York warehouse, while also operating a regular series of card games in the back room. He had two tables, spread one at $1/$2 stakes, sometimes opened the other at $5/$5 stakes, collected a five percent rake – of which a quarter went to dealers – and otherwise promoted his operation just like any number of other “underground” hold’em clubs around the country. In fact, as the judge noted, Mr. DiCristiana even made sure that “players were plied with free food and drinks by a waitress to induce them to stay and play longer.”

For reasons that are not entirely clear, Mr. DiCristiana’s card room garnered the attention not of local police officers minding their neighborhood beat but, rather, that of federal authorities. He was indicted for violation of the IGBA, as well as for conspiracy to commit a violation of the IGBA, and actually almost pleaded guilty but for a fateful change of heart at the last minute. Defense counsel, in a move that has long been the fodder of gaming attorneys’ courthouse daydreams, challenged the charges on the simple theory that poker is not gambling. And while a jury found that Mr. DiCristiana had, in fact, operated the poker room as charged, the Honorable Jack B. Weinstein decided to reserve the last word for himself, holding post-trial expert hearings on whether or not poker is a game of chance.

Judge Jack Weinstein is an interesting character by any standard, let alone that oft-dull par by which men and women donning black robes are too often assessed. Born in Kansas in 1921, Judge Weinstein was a Navy lieutenant during World War II, picked up an Ivy League law degree in 1948, and was a law professor at Columbia during the 1950s and 1960s. In 1967 – some 45 years ago – President Lyndon B. Johnson nominated Judge Weinstein to preside over a courtroom in the eastern district of New York (one of the nation’s more prestigious judicial forums), and Judge Weinstein has sat atop that perch ever since.

Stated otherwise, Judge Weinstein is not some newly minted cowboy judge looking for his day in the sun or a cheap 15 minutes of fame. This is a man who has seen a lot in his life, who has garnered immense respect during his career, and who has seemingly thrust a wholly extraordinary modicum of effort into penning a 120 page opinion that turns federal poker law on its head.

Indeed, while this case is about the IGBA, the opinion discusses – at notable length – the treatment of poker under various state laws and other federal statutory schemes. This myriad of gaming laws exists because gambling is, in fact, regulated from numerous different – albeit oft-overlapping – perspectives. As a starting point, every state has its own gambling laws, which serve to regulate casino-like operations in each such jurisdiction. Ironically, as Judge Weinstein makes abundantly clear, poker clearly runs afoul of New York’s anti-gaming laws, but since Mr. DiCristiana was in a federal court, facing federal charges, that mattered little. Indeed, had it been the neighborhood police who busted the two table game at issue in this case, it seems far less likely that there would have been any issues sufficiently meritorious to make the national news agenda.

Critically, though, just as each state has its own gaming laws, the federal government has several categories of gambling statutes. While Mr. DiCristiana’s case centered on the IGBA, Judge Weinstein dedicated a significant portion of his opinion to discussing the Indian Gaming Regulatory Act – the law that governs Native American casinos throughout the United States – and the Unlawful Internet Gambling Enforcement Act of 2006 (“UIGEA”), the statute that originally exiled the likes of PartyPoker from the United States, and that more recently orchestrated the domestic demise of PokerStars and Full Tilt Poker.

As a starting point, the IGBA came about as part of a coordinated federal crackdown on organized crime. Its text falls within a section of the United States Code dedicated to racketeering, and Judge Weinstein spends a generous portion of his opinion surveying the mob’s notorious involvement in everything from running numbers to raking antes. Yet, as the opinion colorfully – if not semi-whimsically – notes of the peculiar omission of the word “poker” from the IGBA, “The fact that card games like poker, pinochle, gin rummy, and bridge were so widely played by law-abiding individuals in non- criminal settings may explain its omission from the IGBA. As Sherlock Holmes would describe the clue, it is the dog that didn’t bark.”

The UIGEA, of course, has very different roots. And while Judge Weinstein does not dedicate nearly as much ink – let alone wit – to his discussion of how poker would be perceived under federal online gaming laws, he does go out of his way to highlight a portion of the UIGEA that provides for its application to “a game subject to chance.” Since the heart of the DiCristiana case is dedicated to a statistical analysis of poker being a game of skill, not chance, the inference becomes clear: the UIGEA may not encompass poker in as rigid and clear a manner as was once thought.

This is not to suggest that PokerStars will triumphantly return to the American marketplace next week, or that credit card companies will back off of their prohibitions on transfers of funds to those poker websites that do maintain a domestic presence. While Judge Weinstein’s opinion is important, and certainly sets an intriguing precedent, the issue of the UIGEA was not directly before him, so the impact of his findings are limited. The American legal system is built in large part on the idea that similar cases should be decided in a similar manner, but a doctrine known as “dicta” limits the abilities of a judge to decide an issue unless the defendant directly before that judge faces the issue directly. Accordingly, while Judge Weinstein’s opinion will be persuasive and important, it is unlikely to be the final word.

Still, the DiCristiana case may help to mold the final word on multiple fronts. Numerous states have gaming laws that, like the IGBA, define “gaming” or “gambling” without making specific reference to poker. Attorneys defending individuals prosecuted under these semi-ambiguous statutes will now be able to point to Judge Weinstein’s small dissertation on poker as a respectable legal authority. It helps that Mr. DiCristiana’s attorney provided a poker expert who walked the court through a painstakingly detailed analyses of strategy and probability in hold’em games, from position-centric plays to the art of reading one’s opponent. It also helps that the government’s competing expert appears to have been seriously overmatched, having apparently held to the seemingly stubborn conclusion that “the relevant frame of reference for determining whether skill or chance predominates is a single hand.”

Other legal issues are implicated as well, albeit far less directly. Divorce cases involving professional poker players have long been plagued by the difficulty of projecting future income – for alimony purposes, child support purposes, or other purposes – since poker is often deemed a “game of chance.” This case will now lend added credibility to the assertions of domestic support candidates that their respective spouses’ incomes are actually rather predictable in nature. And the implications hardly stop there, with tax law also being tangentially impacted by this case.

To be clear, poker has not suddenly become a game that may be legally dealt in any setting. And those who wish to explore how Judge Weinstein’s landmark opinion may impact their respective personal situations should consult with an attorney before making any assumptions or embarking on any new ventures. (There are numerous gaming attorneys throughout the country, myself included, and most of us take pride in being rather accessible to the card-playing public.)

Still, in an era when it appeared that Uncle Sam’s grip on poker was ever-tightening, with the seizure of three major poker websites, the arrest of key online gaming figures, and even the crackdown of a two table backroom game in New York, the DiCristiana case offers reason to believe the government may have hit a significant obstacle. Only time – and future cases – will tell just how big that obstacle actually is, but for now it can be best measured as a remarkably astute 120 page opinion from a judge with seriously honorable credentials.

Maurice “Mac” VerStandig is an attorney with Offit Kurman, P.A., where his practice focuses on the litigation of various commercial and private disputes, including claims of fraud and financial insolvency cases. He has considerable knowledge of the numerous legal issues encompassing the American gaming scene, and is licensed to practice law in Maryland, Virginia and Florida.

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