January 06, 2014

Garnishing a Turd (Part I):
DiCristina Goes to SCOTUS

In early November, lawyers for Lawrence DiCristina filed a petition for writ of certiorari with the Supreme Court of the United States (SCOTUS), seeking review of the Second Circuit Court of Appeals decision which found that operating an unlicensed, for-profit poker game in violation of state law could also serve as a predicate offense for purposes of the federal Illegal Gambling Business Act (IGBA); my discussion of the Second Circuit's United States v. DiCristina decision can be found here. With the United States Department of Justice's (DOJ) brief in opposition ("resistance") due to be filed today (Monday, January 6, 2014), let's take a quick look at DiCristina's arguments to SCOTUS.

I.  Obstacles Facing DiCristina

At the outset, it must be remembered that SCOTUS has nearly complete discretion over its docket, allowing the Court to pick and choose which appeals to accept. In other words, DiCristina does not have a right to have his appeal heard by SCOTUS. At the present stage of proceedings, a petition for writ of certiorari is analogous to a cover letter and resume sent to a prospective employer—one is simply trying to catch the eye of the employer (Court) and make the cut for a formal interview (be granted review and an opportunity to brief and argue the case merits).

As discussed previously, the vast majority of cases are rejected by SCOTUS at the petition phase:
[SCOTUS] receives in excess of 7,000 petitions for writs of certiorari every year, yet takes fewer than 100 cases. Even after adjusting for the in forma pauperis petitions filed by indigent criminal defendants and prisoners which are much less likely to be granted cert, the Supreme Court still grants cert in less than 4% of cases. The Supreme Court is not interested in merely correcting legal errors—that is the role of the Circuit Courts of Appeal and state appellate courts. Instead, the Supreme Court's task is to select cases which either pose important questions of federal law or which resolve significant conflicts between lower appellate courts.
It is that last sentence which is particularly important in evaluating a petition for writ of certiorari. Even if several justices might disagree with the Second Circuit's decision, SCOTUS will only grant cert in cases which raise an important question of federal law, or which resolve a significant conflict between lower appellate courts, or both (a common occurrence where lower appellate courts have divergent interpretations of a federal statute or Constitutional provision).

So, has the petitioner (here, DiCristina) identified a compelling legal issue which SCOTUS (or at least four of the nine justices) will want to add to its very limited docket? Here, DiCristina's petition identifies two separate possible issues which he contends SCOTUS should resolve:
1.  Whether 18 U.S.C. § 1955 [the IGBA], which outlaws certain “gambling business[es]” and provides that gambling “includes but is 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,” makes it a federal felony to host poker games.

2.  Whether including-but-not-limited-to clauses merely provide examples without in any way limiting the term being defined (as five circuits have held) or whether they restrict the term being defined to things of the same general kind as those enumerated (as four circuits and many state courts of last resort have held).
The first question—regarding the interpretation of the IGBA—attempts to hook the Court on a federal question issue. The second question—regarding how statutes are interpreted—attempts to convince the Court to resolve a split among lower appellate courts. SCOTUS could choose to grant cert to review one or both issues, though in this case, SCOTUS would most likely be interested only in resolving the first issue.

II.  DiCristina's Arguments

A.  Statement of the Case

DiCristina's petition begins with an Introduction and Statement which sketch a summary of the district court and appellate proceedings below, along with key facts. Nothing particularly significant or novel pops up in this section, but DiCristina's attorneys do open the door for some rhetorical blowback. Although the petition acknowledges in passing that DiCristina took a rake from the game, the petition generally tries to suggest that the issue at hand is about whether playing poker is illegal under the IGBA rather than whether operating a for-profit poker room is the predicate illegal activity. The Second Circuit specifically called out this particular error in its decision (p. 11, n. 6):
We note that DiCristina's argument improperly conflates the important distinction between gambling, which is not prohibited by the IGBA, and operating a gambling business, which is prohibited by the IGBA.
Expect the DOJ's resistance to highlight the business nature of DiCristina's poker room, including focusing on the rake taken.

B.  Federal Definition of "Gambling" for the IGBA

DiCristina's primary argument for SCOTUS to grant cert is that the interpretation of the IGBA in the context of poker requires an analysis of the definition of "gambling" as used in the IGBA rather than merely relying on state laws to define what games are or are not gambling. (Petition, pp. 12-18). In other words, DiCristina argues that poker (or other games) must both be "gambling" as defined by the IGBA and also be illegal gambling under applicable state law in order to violate the IGBA.

The general contours of this argument are identical to the argument considered and rejected by the Second Circuit; that court found that the IGBA does not contain any special federal definition of "gambling" whatsoever, but rather merely includes a illustrative list of gambling businesses prohibited by the statute. The Petition, however, does raise an interesting new twist to the argument by asserting that the Second Circuit's decision is contrary to a line of Supreme Court decisions which have held that certain federal statutes—including the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Travel Act—which rely on violation of state law as a predicate offense nonetheless still impose an additional distinct federal definition requirement. DiCristina argues that violation of a federal statute, including the IGBA, should not depend on a state's "idiosyncratic" definition of "gambling". [FN1].

One problem with this argument is that it may well be considered an entirely new argument that has been waived (see Section D, below). Also, in the line of cases cited by DiCristina, the offenses at issue are broad crimes—extortion, bribery, etc.—which are often given different labels in the various state criminal codes. The line of cases relied upon by DiCristina actually act to broaden the scope of federal criminal statutes by recognizing that a particular act might be, say "extortion" as used by the federal statute, while violating a state criminal statute with a different label, such as "theft".

Finally, the biggest hurdle for DiCristina is that the IGBA has never been included in the federal statutes interpreted to require a predicate offense to meet both a state and a federal definition. SCOTUS has never ruled on the issue, and as the Second Circuit noted in its decision in this case, numerous federal Circuit Courts of Appeal have affirmed IGBA convictions predicated on gambling activities which were not specifically identified in the IGBA, but were violations of state law, including poker, video poker, blackjack, gin rummy, and bingo.  This lack of any other federal appellate decision interpreting the IGBA in the manner advocated by DiCristina severely undercuts the attractiveness of his argument as a possible candidate for a grant of cert.

C.  Preservation of ErrorDiCristina's Argument

One issue raised by DiCristina in both the introductory segments of his petition as well as in a dedicated subsection of the main argument later in the petition is an assertion that the Second Circuit improperly ruled against DiCristina based on a legal theory which the government had not raised on appeal (Petition, pp. 11-12, 17-18). Essentially, DiCristina argues that the Second Circuit "sandbagged DiCristina by holding—over the Government's concession and without briefing on the issue—that the IGBA contains no federal definition of gambling." (Petition, p. 17).

What DiCristina is arguing here is that the government failed to preserve error on the argument relied upon by the Second Circuit in its decision. Error preservation is a critical aspect of both trial and appellate practice. Essentially, any argument that is not made before and ruled upon by the trial court may result in the waiver of that argument on appeal. In other words, if an attorney loses in front of the trial court, but thinks of a new, winning argument on appeal, the appellate court will generally refuse to consider the new argument absent extraordinary circumstances.

As with most legal principles, however, error preservation can be quite complicated in practice. DiCristina made some noise about the government coming up with a new argument on appeal during the oral argument before the Second Circuit, asserting that the government had "conceded" that the IGBA contained a definition of gambling distinct from any underlying state law definition. The Second Circuit, however, expressly rejected this argument in its decision, holding that the government had argued in its appellate brief that the IGBA does not contain an independent definition of gambling, and further noting that the proper interpretation of the IGBA was a matter properly before the court in any event. (Decision, p. 12, n. 9).

A review of the government's appellate brief demonstrates that the government has, in fact, preserved this argument. In its "Summary of the Argument" section of its brief (Brief, p. 13), the government stated:
The [district] court misinterpreted 18 U.S.C. § 1955(b)(2) as creating a definition of "gambling." In fact, the IGBA does not contain a definition of "gambling" and that term should therefore be defined based on its ordinary meaning; i.e., as wagering on an uncertain outcome.
Further, within the government's "Argument" section of the brief, an entire subsection is devoted to an argument that "§ 1955(b)(2) Does Not Define 'Gambling' for Purposes of the IGBA". (Brief, pp. 16-17). Given these references in its appellate brief, DiCristina's complaints about waiver of this issue seem rather strained, particularly when the Second Circuit itself has already indicated the issue was not waived.

D.  Preservation of Error—Did DiCristina Goof?

Interestingly, it is DiCristina who may well face an error preservation problem in front of SCOTUS. Recall that the major issue being argued by DiCristina is that the Second Circuit failed to consider a particular line of cases holding that federal statutes with state law violations as predicate offenses nonetheless still require a federal definition of any such predicate offenses. As DiCristina acknowledges in his Petition, the Second Circuit's decision contains no analysis of this line of cases. DiCristina argues this is the fault of the government and the Second Circuit (it's generally a sign of desperation when appellants resort to attacking a court with language like "sandbagging").

But a review of the table of authorities in DiCristina's appellate brief reveals that none of the line of cases cited by DiCristina in his Petition (Nardello, Scheidler, Wilkie, Taylor, and Perrin) were cited by him to the Second Circuit. Further, none of these cases were cited by Judge Weinstein in his otherwise exhaustive initial decision favorable to DiCristina (with the exception of a passing citation to Scheidler for the unrelated proposition that federal statutes can be interpreted broadly to cover situations not expressly contemplated by Congress; Opinion, p. 102). Finally, despite feeling "sandbagged" by the Second Circuit, DiCristina never availed himself of the option of filing a motion for rehearing by the court to permit briefing, argument, and consideration of this supposedly critical line of cases (Federal Rule of Appellate Procedure 40 permits parties to file a motion for rehearing when the appellate court has "overlooked or misapprehended" any point of law).

SCOTUS is careful, even when presented with cases raising important issues, to take cases which are procedurally clean. SCOTUS takes cases to decide the ultimate issue presented (here, whether poker is covered by the IGBA). With its limited docket, SCOTUS does not like to take a case which has a threshold procedural dispute which might prevent the Court from reaching the merits. Often, even a whiff of procedural dispute can be enough to cause the Court to pass on an otherwise cert-worthy case. Here, DiCristina's argument based on the Nardello line of cases seems like a new twist on his argument below, added to his Petition in an attempt to beef up his argument and catch the Court's attention. Whether this new twist is viewed as a new argument that has been waived or merely an augmentation of his prior argument is probably not the critical factor at this juncture. Rather, if the government makes a point of arguing that this is a new argument subject to waiver, the entire Petition falls under a procedural cloud. At a bare minimum, SCOTUS will likely be troubled by the fact the Court is being asked to consider a case where the petitioner himself is asserting the underlying Second Circuit decision has not even fully analyzed the major issue to be resolved. Look for the government to attack this weakness in its resistance.

E.  Circuit Split on Including-But-Not-Limited-To Clauses

The second major argument raised by DiCristina is that SCOTUS should take this case to resolve a split among the Federal Circuit Courts of Appeal as to the proper method of interpreting statutes (and contracts) which contain lists using the language "including but not limited to". (Petition, pp. 18-32). In this case, the Second Circuit found that the IGBA's list of illegal gambling businesses was illustrative and not exhaustive, and that running a for-profit poker room was the type of illegal gambling business encompassed by the IGBA. In reaching this conclusion, the Second Circuit declined to use the principle of statutory construction ejusdem generis to narrow or limit the scope of the IGBA's "including but not limited to" list of illegal gambling businesses to businesses connected to a game of chance.

DiCristina, however, argues that application of ejusdem generis is required, and if so applied, then poker falls outside the type of prohibited activities because it is a game of skill while the listed gambling activities are games of chance. Expect the government to hammer DiCristina with the Second Circuit's rebuke noted above (Section A) that "DiCristina's argument improperly conflates the important distinction between gambling, which is not prohibited by the IGBA, and operating a gambling business, which is prohibited by the IGBA." The government will also likely argue that the Second Circuit correctly determined ejusdem generis did not apply in this case because the language of the IGBA is clear without resort to rules of statutory interpretation. (Decision, p. 12, n. 9).

Perhaps more importantly, the government is likely to argue that this kind of circuit split is not worthy of the Court's attention. Rules of statutory construction are just ad hoc heuristics used to resolve ambiguities in statutes. Often, more than one rule of construction can apply to a given statute, and the choice of rule to follow can lead to significantly different analytical outcomes. Determining which version of a rule is "correct" is essentially meaningless absent the context of a statute to which the rule is to be applied—a "meta-dispute", if you will. But here, even though various courts have chosen to interpret "including but not limited to" clauses differently, they have not done so in the context of the IGBA; there is no circuit split as to whether running a for-profit poker room is a predicate offense under the IGBA.

Further, it is not even clear whether interpreting the IGBA's "including but not limited to" language narrowly would make any difference in this case. Assuming SCOTUS agrees with the Second Circuit that the analytical focus is on the gambling business (running a for-profit poker room) rather than the game (poker), then the Court might easily conclude that the "skill game" argument for poker is irrelevant under the IGBA even if ejusdem generis is applied. In other words, the Court could determine that taking a rake from an illegal poker game is sufficiently similar to running the enumerated gambling businesses that it violates the IGBA, even if poker is a game of skill.

Frankly, this argument for a circuit split feels contrived, and is easily the weakest part of the Petition. In the unlikely event SCOTUS grants cert, look for the Court to drop this issue from consideration.

F.  What of the Skill Game Argument?

Although the skill game argument is woven into the Petition, poker players will notice that it is not identified as an issue for SCOTUS to resolve. This is because the Second Circuit found the skill game argument irrelevant to analysis of the IGBA. Also, remember that the point of the Petition is to persuade SCOTUS to take the case, not to argue in depth the merits of the case. Here, the skill game argument simply is not a hook that can grab the Court's attention. If SCOTUS should happen to take the case, the merits briefing process will provide an additional opportunity to argue the skill game position. Still, the only way SCOTUS will ever definitively rule on poker as a skill game in the present case is if a lot of dominoes fall the right way:  a) cert is granted, b) the Court agrees there is an independent federal definition of gambling in the IGBA, and c) skill is relevant to that federal definition of gambling.

In any event, the skill game argument is actually well-positioned before the Court even at this stage. Judge Weinstein's lengthy decision is part of the record, as are amicus briefs filed in support of DiCristina's Petition. Poker players need to understand, however, that the skill game argument will have little influence on whether SCOTUS grants cert.

III.  Amicus Curiae Briefs

Five amicus curiae briefs have been filed in support of DiCristina's Petition, including briefs by: a) the PPA, b) a group of professional and amateur poker players from New York, c) noted poker player and author James McManus, d) Champion Scrabble and Bridge Players, and e) Robert C. Hannum, Ph.D.,  professor of Risk Analysis and Gaming at the University of Denver. [FN2]. All five amicus briefs can be accessed via the SCOTUS Blog page devoted to the DiCristina case.

First off, none of these amicus briefs has substantially changed since initially being filed with the Second Circuit, other than to update some discussion points to reference the Second Circuit's decision. The briefs by the PPA, the poker player group, the Scrabble and bridge players, and Dr. Hannum focus on fleshing out the skill game argument from several different yet complementary angles. The Hannum brief, in particular, does an exceptional job in presenting the technical basis for the poker "skill game" argument. McManus' brief takes a different tack, and discusses the historical and social context for poker in America.

All five briefs are well-written and informative. And, to be blunt, all five briefs are a waste of time. The thing about amicus briefs, particularly at the petition for certiorari stage, is that the Court pays little attention to them unless filed by one of a very limited number of influential groups (e.g., the U.S. Chamber of Commerce or the Cato Institute). With thousands of cases to review, the Court simply does not have the resources to review most amicus briefs at the certiorari stage. In this particular case, the amicus briefs focus mostly on the skill game part of the argument, rather than directly supporting either of the primary questions presented. With Judge Weinstein's exhaustive opinion already part of the papers submitted to the Court, none of these amicus briefs add a whit of meaningful substance to the Court's pending decision whether to grant cert.

The amicus briefs might have some marginal value at the merits stage of the briefing process if SCOTUS grants cert. But filing these merits-type briefs at the certiorari stage is a tacit admission that their authors believe the Court will likely deny cert. So, these amicus briefs get filed at the certiorari stage as a sort of vanity project so the authors can declare how they filed a Supreme Court brief in the case, even if doing so was essentially pointless.

Still, filing the amicus briefs is essentially harmless, at least for the four briefs dealing with the skill game argument. The McManus brief, however, gives the government a potential opening to score a few rhetorical points. McManus waxes poetic in his brief about poker as the All-American game. An enterprising DOJ attorney could easily go to McManus' excellent book on the history of poker, Cowboys Full, and pull out some pithy quotes about the prevalence of cardsharps, cheaters, and other unsavory folks in poker throughout its history. McManus also argues in his brief that poker is unlike traditional casino games in that it is generally not amenable to the same type and scale of corruption by organized crime as are traditional casino games. Of course, this provides a nice opening for the government to reference notable online poker events such as the UB/AP cheating scandals and the Back Friday indictments. The government might not make these arguments, or might have been prepared to make them regardless of whether McManus filed an amicus brief. Still, it seems poor strategy to open the door for such attacks when the brief otherwise does not advance the cause of having cert granted.

IV.  What Happens Next?

The government's resistance is due today, and DiCristina will have a short period in which to file any final reply. The various papers will then be sent to the Court's law clerks for initial screening, after which the Justices will vote on whether to grant or deny cert. SCOTUS Blog has excellent layperson-friendly summaries of Court procedures and the behind the scenes operations of the Court. A decision on whether cert is granted or denied could occur as early as February or could linger as late as June.

Poker players shouldn't get their hopes up. DiCristina's lead appellate attorney, Neal Katyal, is as experienced and highly respected an appellate attorney as can be found (and is also a possible future federal appellate judge). Katyal and his team did a solid job with the Petition. But when the underlying case is a steaming turd, even the best of attorneys can't hide it under a bunch of gourmet toppings.


[FN1]  In a bit of irony, DiCristina cites to past PPA litigation failure Town of Mt. Pleasant v. Chimento for the proposition that a state could classify bridge as "gambling" and create potential IGBA violations for bridge tournament operators. This hypothetical concern is somewhat afield from Mr. DiCristina's poker room. To paraphrase my earlier comments regarding Chimento, given that poker has long been considered gambling in most (if not all) states, this is an argument better raised by bridge players, if and when they ever get charged with illegal gambling.

[FN2]  UPDATE (12 JAN 2014): The original version of this post discussed three amici curiae briefs which were available via the PPA. SCOTUS Blog provided links to all five amici briefs on its page devoted to the DiCristina case. The amicus brief subsection has been revised to reflect the two additional amicus briefs not previously noted filed by: a) the Champion Scrabble and Bridge Players, and b) Robert C. Hannum, Ph.D.,  professor of Risk Analysis and Gaming at the University of Denver.


  1. Bridge tournaments virtually never involve winning money. In fact, it costs players an entry fee to cover expenses of running it.

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