While it remains a formidable longshot, the Supreme Court may be asked to decide under what circumstances poker is gambling prohibited by federal law. A petition for certiorari filed on Nov. 13, 2013 asks the Court to take the matter up in the coming term. The Court likely will decide whether or not to accept the case in February, but it remains a long shot.

We have been following the outcome of the trial of Mr. Lawrence DiCristina who was convicted of running an illegal No Limit Texas Hold’em game in a Staten Island back-room. He was convicted after a jury trial in federal district court in Brooklyn. The jury concluded he violated the Illegal Gambling Business Act (IGBA), which outlaws “gambling businesses”. After trial, however, Federal District Judge Jack B. Weinstein set aside his conviction. Judge Weinstein thoughtfully considered a mountain of legal scholarship on the law’s view of poker, and carefully weighed conflicting expert testimony; he concluded poker did not fall within the IGBA’s definition of gambling because poker was a game in which skill predominated over chance. Unfortunately for Mr. DiCristina, the 2nd Circuit Court of Appeals disagreed with Judge Weinstein and reinstated the conviction. On Jan. 21, Mr. DiCristina was sentenced to one year of unsupervised probation.

Mr. DiCristina is a bicycle shop owner who ran Texas Hold’em games in back of his shop. He has no criminal record, and the government did not demonstrate he had any connection with organized crime. Indeed, Mr. DiCristina argues the government is illegitimately using a statute intended to combat organized crime as part of its “war on poker.” The gist of his argument is that the Government misapplied the IGBA which prohibits only “gambling,” which properly understood is limited to games of chance under federal law. Poker is not a game of chance and not gambling because it is a game predominated by skill.

When it reversed Judge Weinstein, the 2nd Circuit effectively avoided the skill vs. chance question by conceding skill predominated in poker, while looking elsewhere in the statute. The 2nd Circuit held that because the state law where the game was run (in this case New York State) made poker illegal, that effectively made running the poker game a violation of federal law (in New York anyway.) It did not matter whether or not poker fit the statutory definition of “gambling” under the IGBA. (Mr. DiCristina claims he was sandbagged by the court’s surprise rationale.)

Mr. DiCristina advances two arguments in his petition. First, he argued that the 2nd Circuit’s reliance on a violation of state law to determine whether he broke the law is wrong because the government must also show that the state law violation also violates a federal criminal statute criminalizing gambling. If the 2nd Circuit approach were to stand, he argues, an outlier state that criminalized contract bridge would automatically elevate playing bridge to a federal felony depending on where you were playing.

The second ground is a classic law school question of statutory construction. The federal definition of “gambling” in the IGBA does not list poker, but does list a variety of other games of chance such as pool selling, policy banking, slot machines, roulette wheels, and others that are generally accepted to be games of chance. In law school parlance, principles of ejusdem generis and noscitur a sociis, therefore, suggest that the IGBA should only apply similar games of chance, and not a game of skill, like poker.

As we observed last time, his chances are slim. Even if a member of court finds his arguments on the actual merits of the appeal are of interest, four justices must conclude there are compelling reasons to take the case beyond the fairness of the particular outcome.

As he was below, Mr. DiCristina is joined by amici curiae who have submitted lengthy briefs on his behalf. In addition to a brief filed by professional and amateur poker players who object to their game being branded a federal felony, Professor James McManus weighs in on behalf of the game of poker itself. Author of the “definitive history” of poker, he objects that the Government’s overreaching attempts to criminalize a game enjoyed by presidents, congressmen, Supreme Court justices and the honest tax payers that pay their salaries. The average citizen should not face federal prosecution as though he were a member of organized crime for playing a game that historically is a positive part of American culture. A brief submitted by champion scrabble and bridge players — possibly worried they might be next — similarly criticizes a rationale that games played for money when an element of chance is involved should be lumped in the legitimate scope of the IGBA. Robert C. Herman, a professor of risk analysis & gaming at the University of Denver, weighs in and opines that the government’s position is contrary to science because scientific authorities uniformly conclude poker is a game of skill. Finally, these amici are joined by the Poker Player Alliance, a non-profit organization of over one million poker players. They object to what they argue is an absurd result of the 2nd Circuit holding: That a game that millions of Americans play every day for money is now treated as a federal felony even though there is no evidence Congress intended to use the IGBA to criminalize poker at the federal level.