United States v. DiCristina
726 F.3d 92
2d Cir.2013Background
- From Dec 2010–May 2011 DiCristina ran a commercial poker club (No‑Limit Texas Hold’em) in Staten Island; dealers took a house rake and the operation met §1955(b)(1)’s size/duration/revenue thresholds.
- DiCristina was tried and a jury convicted him of operating and conspiring to operate an illegal gambling business under 18 U.S.C. §1955 and §371.
- After trial the District Court granted a post‑verdict judgment of acquittal, holding §1955 only covered games predominated by chance and that poker is predominated by skill.
- The government appealed, arguing §1955(b)(2) is illustrative, not definitional, and an “illegal gambling business” is governed by the three elements in §1955(b)(1).
- The Second Circuit reversed: it held the statute’s plain text covers any business that (1) violates state law, (2) involves ≥5 persons, and (3) meets the temporal/revenue threshold — poker need not be shown to be a game predominated by chance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §1955 — whether §1955(b)(2) defines the types of games covered | Gov: §1955(b)(2) is illustrative, not a limiting definition; apply §1955(b)(1)’s three elements | DiCristina: §1955(b)(2) and §1955(e) show Congress intended to cover only games of chance, so poker falls outside | Held: §1955(b)(2) is non‑definitional (“includes but is not limited to”); illegal gambling business is defined by §1955(b)(1)’s three elements; poker business fits. |
| Relevance of skill vs. chance | Gov: Whether a game is predominated by chance is irrelevant to §1955 prosecution if state law forbids the activity and §1955(b)(1) elements are met | DiCristina: Court must find poker is predominated by skill to exclude it from §1955 coverage | Held: Predominance of skill/ chance is inapposite — statute requires only the three §1955(b)(1) elements; state law classification governs. |
| Use of legislative history / ambiguity | Gov: Text is plain; legislative history also shows Congress targeted large‑scale gambling businesses, not particular games | DiCristina: Ambiguities in text and history require narrowing construction; rule of lenity applies | Held: Text is unambiguous; legislative history supports the plain‑text reading; rule of lenity not triggered. |
| Jury role — whether question whether poker is "gambling" is a jury question | DiCristina: Whether poker is gambling under §1955 is a mixed question for the jury | Gov: This is statutory interpretation (question of law) for the court | Held: Whether poker constitutes gambling for §1955 is a question of law; court correctly resolved it. |
Key Cases Cited
- Iannelli v. United States, 420 U.S. 770 (Sup. Ct.) (IGBA was intended to give federal reach against organized crime’s gambling revenue)
- Sanabria v. United States, 437 U.S. 54 (Sup. Ct.) (IGBA targets participation in a gambling business; government need not prove defendant personally performed state‑proscribed gambling acts)
- United States v. Gotti, 459 F.3d 296 (2d Cir.) (§1955 illegal gambling business defined by §1955(b)(1) elements; application to gaming devices)
- United States v. Atiyeh, 402 F.3d 354 (3d Cir.) (treated §1955(b)(2) as illustrative and applied §1955(b)(1) elements)
- United States v. Sacco, 491 F.2d 995 (9th Cir.) (en banc) (articulating the three §1955(b)(1) elements as the test for an illegal gambling business)