http://www.legalpokersites.com/blog/...r-is-gambling/

Poker may finally be getting its day in court as Chad Elie and John Campos have filed a motion in limine that requests that they be allowed to present evidence to the jury that online poker is a game of skill. It also argues that the defendants garnered a good faith belief that conducting online poker activities were lawful and were not intending to break federal laws.

Thanks for posting. I feel like the first half of this motion is, in itself, a huge gamble.

Under Section A (see p.16), the memo states that the Southern District court "will be the first in the country to rule as to the legal standard for determining whether an activity is a 'game subject to chance' under UIGEA." If the motion carries, some jury will establish one hell of a legal precedent for all future cases regarding poker's legal definition, one way or another. That jury's decision would either be monumentally good for us, or monumentally disastrous.

Of course, it's better than the status quo.

Also, I notice this memo addresses two of the three prongs of the DOJ's indictment: UIGEA and money laundering. No mention of the bank fraud charges. Have the charged parties essentially conceded that point? Or is that simply the next set of dominoes to fall? That is, if this motion goes through, they can then say, "if the UIGEA had not been applied to us, we wouldn't have needed to engage in fraud transactions."

Thanks for posting. The govt rebuttal sounds pretty solid, unfortunately.

Since this Motion was filled last week, i think it's the 2nd attempt to 'prove poker isn't gambling' ... and therefore Elie & Campos are innocent.


the first motion regarding this topic was filled in september 2011 (?)

http://www.pokerstrategy.com/news/wo...Charges_52261/

Thanks for posting.

The entire motion is essentially a strawman argument, asserting that if poker is gambling, then everything we do could be considered gambling.

The law doesn't require the game of poker to be gambling, the question for the jury is whether these companies profited from people gambling on poker.

They list chess as an example of a game that isn't gambling, but people can gamble on chess in a number of ways; spotting pieces, requiring the better player to force checkmate within a set number of turns, etc.

They say golf is gambling if poker is gambling, but while a golf tournament isn't gambling, betting on who will hit one shot closest to the pin certainly is.

Their trump card is that a company couldn't be accused of running a gambling business under federal law even if a State law asserted that spelling contests were gambling.

Wrong again, if a spelling contest accepted an entry fee and awarded a purse based on the ability to spell one random word - with each entrant getting a different word - and those spelling their word correctly dividing up the purse pari-mutuelly after just one randomly drawn word, that could easily fit the federal definition of gambling.

The best test of the character of a game I've heard is whether someone could play the game perfectly and still lose, and while over a large sample size it would be unlikely not come out ahead (depending on opponent skill and rake) in poker, a game that awards a prize (the pot) on the outcome of each hand must be legally judged on one hand, and it was clearly possible (and often occurred) to play a hand of cash poker perfectly on these sites and lose thousands of dollars in the process.

Is poker gambling? That depends how (and how long) you play it. Did gambling occur on these sites with their knowledge? Obviously, some of the owners (and at least one of the processors) were the biggest degens, and their high variance matches became one of the biggest advertising draws.

Yes degens can gamble on anything, but the question of whether they should be allowed to gamble on poker shouldn't be decided by either a judge or a jury, that's a question for the people to decide through their elected representatives.

If you are charged with serious crimes, you try anything that might work. Nothing is "simple". I doubt if this works because (i) the judge may not rule to allow the jury to consider this issue, and (ii) the jury might rule against them anyway.

But if UIGEA really didn't apply because poker isn't gambling, the defendants had years to seek remedy in the courts themselves. Saying that we had to commit bank fraud because you "unjustly" applied UIGEA to us would be laughed out of court.

Either way, the bank fraud charges (which actually carry the largest penalties) stick.

Yeah, that's probably the reason the bank fraud charges are not mentioned -- they simply don't have any defense for it.

Civil disobedience to protest an unjust law, which gave the industry no other options other than pulling out, hoping they would be taken to court to get it overturned.

They need the subject of this article to testify:
http://www.westword.com/2011-06-02/n...skill-or-luck/

This argument might prevail in some states, but in NY, Mahjong was ruled to be "predominantly" a contest of skill but the charges of promoting gambling still stood because the outcome was subject to chance and the house raked the pot.

The UIGEA threshold is simply "subject to chance" - which is all encompassing - and in violation of a state or federal law, with NY law defining a game of chance as "the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein".

Further, the IGBA doesn't even require a state law violation, if they served poker in any locality where doing so is specifically illegal, the government doesn't even have to show an element of chance.

That said, I believe the strategy to make this argument pretrial is the right one, to keep the DOJ is focused on defending the definition of gambling, and then introduce their more legitimate extraterritorial defense before the jury.

In fact, they may be making this motion because they actually want the judge to say the legal opinions can't be introduced at trial, which would allow them to say they believed they were operating within the law not because poker wasn't gambling, but because only the play took place within the court's jurisdiction and the gambling business laws of NY (and it's political subdivisions) were not intended to reach foreign businesses.

The government can argue that the purpose of the UIGEA was to extend state laws to the internet regardless of where the business is located, but as Congress said when they passed the IHA:

NY had six years since the UIGEA was passed to ensure that playing poker online would trigger federal enforcement if that was their intent.

The government said they can point to the laws of other states like Utah, but Utah only last month got around to passing a bill making online poker illegal, which would be completely frivolous if the laws already on the books were extra-territorially applicable.

What is the definitive definition of gambling? I see that one definition is to play a game for money or property. If this is the definition then poker is and has always been gambling.

Now if it is to bet on an uncertain outcome, this can depend on how long we are talking about. Short term the outcome is probably uncertain, but long term the outcome should be known.

If there was a "definitive" definition of gambling, the 2+2 forums would have fewer threads (Or some of them would be much, much shorter.) The legality of poker, both B&M and in its online form, would be more cut-and-dry.

According to the Colorado Department of Revenue Division of Gaming website (http://www.colorado.gov/cs/Satellite.../1213781235175), an activity requires "consideration, chance and reward" to be considered gambling.

New York's PC 225 defines gambling as "when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome."

To be a contest of chance, the outcome must depend "in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein." [Source: http://law.onecle.com/new-york/penal...00_225.00.html. Emphasis added.]

Washington's RCW 9.46 [http://apps.leg.wa.gov/rcw/default.aspx?cite=9.46] defines "gambling" and "contest of chance" very similarly to New York, almost verbatim. Like many other states, you'll see a plethora of conditions and exceptions at work.

Whether a contest is viewed as gambling is determined by it's beginning and end, with the beginning being when the entry fee is paid and the end occurring when the purse is awarded.

Since a purse (pot) is awarded at the end of every hand of cash poker, the long term outcome is legally irrelevant to the ruling, and that form of poker (which was offered and percentage raked on the sites in question) would be viewed as gambling under even the most liberal definition.

Many states have a provision for social gambling, so had these sites only allowed micro stakes, and not percentage raked the pots, and only accepted players from those states, along with tournament "contests of skill" in the ~30 states which allow it, they likely would may been fine.

One defense might be just how convoluted the law is and the burden it places on businesses to comply with it, but having offered high stakes cash games in all 50 states isn't exactly a good faith effort to comply.

Juries do not establish precedent. Precedent refers to matters of law, not facts.

If a jury were to agree with the request and return a verdict that poker is not gambling, no other judge or jury would be bound to listen or care. In fact, the verdict could be appealed on the mere question of whether poker constitutes gambling as a matter of law and thus not a valid question to be posed to the jury.