Gracias, I was looking for these opinions a while back, specifically the Ashcroft firm opinion.

There ARE other smilar opinions . I know that Party Poker had a similar opinion from Greenberg Traurig pre-UIGEA, upon which they could have relied in a good faith challenge to coverage by the Wire Act and UIGEA, but chose no to do so.

Actually, the I split the opinions into a separate link (5th para in the government section) if that's easier.

All the filings were almost 500 pages, so I know the article is is tl;dr but there are some very interesting points, I tried to pick out key rulings.

/...in b/4 lawdude claims that the defense motion has no merit.

This was a great read.

Imrich's opinion was interesting, and he sighted a bundle of different studies, one of which dealt with robots programmed at different levels of competence. Good read.

But holy **** does the government make a good case, and go directly after what Campos/Elie are going to argue, making good points as to why the government is right. Even though we know poker is a game of skill the government does a good job talking about how it is irrelevant in this case.

I know its a lot of reading, but don't brush off the defense argument too easily. Some of the cited cases are pretty interesting.

IMO, this is in no way a slam dunk for the gov't. There are several notations that show it is relevant, including things the government itself had said.

I know I sound one sided on this, but when there is a choice, I always say it belongs in the hands of the jury. Not all juries are comprised of people that are just not smart enough to get out of it. This likely will turn out to be very interesting.

What surprised me about the defense motion was the part about SCOTUS recent cases which rule that juries should make the determination whether certain acts violate a criminal statute when the facts are known or decided by a jury. These cases hold that a jury, not a judge, should apply the statute terms to the facts. The government's opposition to this part of the defense motion relies on older case law.

Basically, the defense is arguing that a jury, not the judge, decides if skill in poker matters or not and supports this argument with recent SCOTUS case law. I always thought that this type of legal decision was decided by the judge, but the defense motion makes a very good argument that SCOTUS has held that the jury decides these type of issues.

The issue of judge vs. jury responsibilities in a criminal case is very complex, and certainly I could see a trial judge ruling that the jury gets to decide whether or not poker is gambling under the UIGEA and state law definitions. (I could also see the issue going the other way based on the New York caselaw that we have discussed on numerous occasions, the Utah statute the government cites, and other laws).

I do agree with the government, however, that the UIGEA and New York definitions DO NOT turn on whether poker is a game of skill, but only whether chance is a material element of the game. So if the issue DOES go to the jury, that's how the instructions should be written (and the defense experts should be limited to testifying as to the role of chance in poker; opinions as to whether poker is a game of skill should be excluded as inadmissible).

Finally, it seems to me that an advice of counsel defense is potentially available here. UIGEA and IGBA, like other criminal statutes, likely require a showing of some sort of "scienter", i.e., a mental state as well as an action. For instance, if I created an online payment service and some users, without my knowledge, used it to transmit gambling deposits, I should be entitled to argue to the jury in a UIGEA prosecution that I had no knowledge of what was going on.

The problem with the advice of counsel defense is that as a general matter, ignorance of the LAW is no excuse. But whether poker is covered by gambling statutes isn't a pure question of law. It's a mixed question of law and fact. To the extent that lawyers were telling these firms that poker wasn't the sort of game that was covered, that might be relevant for the jury. (Having said that, just as an aside, I don't actually believe that the poker sites relied on legal opinions. I suspect they bought legal opinions to justify what they wanted to do anyway and knew very well that a prosecution down the line was a possibility. But the government will be able to argue that and the jury should decide it.)

By the way, I am shocked at the Imrich (I'm rich?) memo. The other memos are written the way legal memos should be written. You can agree or disagree with their conclusions, but they are written with the proper caveats, letting the client know the weaknesses in the position, the uncertainties, and the possibilities that the government might be right.

The Imrich memo, in contrast, simply says "go ahead, nothing covers online poker!" without any caveats or warnings whatsoever. When I read it, I thought "malpractice".

And here's my problem with the government's "advice of counsel is irrelevant" position more specifically:

The government's position is simple-- the scienter requirement in IGBA and UIGEA does not require a knowledge that the game is illegal. It only requires that you know that the game is being conducted. So long as you know that, ignorance of the law is no excuse.

I don't think it's that simple.

Let's suppose that a payment processing company becomes aware that a website that is offering a newly-invented game that is played for money-- we'll call it Justice!-- is using the payment processor to process the deposits and withdrawals made by players. Concerned about UIGEA, the processor asks its counsel for a legal opinion. Importantly, the processor is going to follow that legal opinion, i.e., the processor is not looking for a rubber stamp. If the lawyers come back and say "this violates UIGEA", the processor is going to start disallowing the payments.

The lawyers come back with a detailed, well-reasoned opinion that the game does not involve bets or wagers under UIGEA. Based on that opinion, the processor decides to continue processing the payments, and later on is indicted under the UIGEA. The processor asserts an advice of counsel defense and seeks to admit the memo into evidence.

The problem with the government's position is that the processor ISN'T simply pleading ignorance of the law. The processor is pleading ignorance of a FACT as well-- that Justice! is a game that involves bets or wagers. And the processor's ignorance of that fact resulted in part from reliance on a legal opinion from lawyers who analyzed the UIGEA and attempted to answer the question of whether Justice! did involve bets or wagers.

I think the government is relying on the idea that because this is an established game-- poker-- rather than a new game-- Justice!-- that any reliance on advice of counsel must be based on a plea of ignorance of the law. But I don't see why one standard would apply for new games and another one for existing games. The defense should get to try to establish that their clients relied on the legal opinions.

First let me say that my personal views about the author are probably clear based on an article I published, but to be fair, what the govt included in their opinion packet was the "draft". Not that it would change your mind but the final copy actually was published and has been public for some time. https://www.jdsupra.com/post/documen...9-16ee99978f1b.

I don't believe it's a matter of having two separate standards, for old v new games. With a game that existed at the time the statute was written, the court has the ability to assess whether or not the legislature intended for that game to be covered - if they did, the jury shouldn't get to decide.

If it was our new game of Justice!, obviously the legislature had no intent for it to be covered since it hadn't been invented, so the character of the game should be determined by the jury.

In the first page or so of the linked "well-reasoned" opinion, I see several problems. It says There is a lengthy definition of "unlawful internet gambling".

It isn't the purpose of UIGEA to prohibit games, it prohibits funding to operators where UIG is found. The laws apply to people, not games.


Reading the definition of "bet or wager" (not "betting or wagering") in UIGEA, a bet is staking something of value on a "game subject to chance". My copy never says that chance must be dominant.


I take this to really be saying that the offering of internet poker is lawful under a most state laws, therefore at least a few state laws trigger UIGEA and IGBA...so,when the letter concludes that...


...I want to know how that can be true.


Maybe I have to read more of it to get to the well-reasoned part?

Imrich wasn't just a lawyer they reached out to for a legal opinion, here are some quotes from a Wicked Chops article to shed some light on who he is:

In Other’s Words: The Rise and Fall of Ray Bitar

from diamond flush: Elie, Campos, and SDNY Issue Responses to Judge or Jury Motions

Actually I like the clarifications and arguments made in these responses.
Personally I like the chances of both concepts going to the jury now.

In the judges hands now, so we'll see.

I made a reply to the IGBA comments earlier but refrained from posting the below as the thread got derailed but now it's probably appropriate:

However, if you look at IGBA, particularly since it's charged in this case, it specifically says:
So the set titled "gambling" for the purposes of this statute
i.e. set the domain as "gambling under IGBA"

= {pool-selling,bookmaking, maintaining slot machines, roulette wheels or dice
tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein}

The question is without explicit admission rules i.e A = set{ all x lie in N that are odd} then how do we determine if an element Y not already in A is a member and admissible to A?

Contrast this method of set construction by example to
e.g. a whitelist (e.g tax treaty countries) or
a blacklist (trading with the enemy country list) are examples of explicit sets by membership.
The set of legal drinkers defined by the explicit admission rule "people who are over 21" is an example of a set defined by rule(s).

IMHO the logical conclusion is that without loss of generality (someone like repulse check and correct plz ):
example

A = { cat, dog, pig, horse, hippo, giraffe, kangaroo}
e.g. z = parrot, Pr = 4_legged, there is r(parrot, kangaroo) = false

So parrot can't be a member of this set as it fails one of the properties.
Note it is irrelevant how many properties it shares (e.g. animals, have DNA) vs those that it doesn't share ( legs, feathers) e.t.c under this stricter definition.

W.r.t to IGBA, given that it uses the construction by example then the above should be the test for whether an non-explicit element is a member or not.
That should be fixed in the law IMHO as is the correct logical way to interpret the set by example approach of construction i.e. the test is laid out by the Judge with the logical test as quoted above.

The question of what constitutes properties is a matter of facts of the case and provable in a Court, as is the result of the test as it uses the same process as above to define the property of a set. These facts are a matter for the jury and to be argued in the Court by the parties w.r.t. to the test as laid out by the Judge above.

Although the above may be somewhat detailed, intuitively as has been said before if there is a common similarity e..g House-banked games or even as D_F said "they don't involve card games" and the game in question poker doesn't have this property then it's NOT a member of the set and the set as defined above under IGBA does not contain poker.

Given the list was drawn up to include such somewhat obscure members as bolita and policy it suggests that it's scope and target was specific.

Nice write-up.

I really hate to ask this question, but it seems it should be addressed,

what is "pool-selling", and does it share a "fee for entry/service in conducting the pool and paying out prizes" attribute with poker, especially tournaments ?

Good question, IDK what "pool-selling" really is - bolita and policy are names for what are essentially lotteries, so I can't answer the second part of your question.

I will comment though that all games must involve some kind of receipt of money from customers else they wouldn't be very good games so receipt of money whether characterised as a fee is almost certainly a property of the IGBA examples set.

"Selling chances therein" is another which I am unsure what specifically it comprises. Thoughts?

There isn't much in common between sports bookmaking and a lottery, but they are in the same class because they were types of gambling that could generate large revenue without attracting attention from local law enforcement, so Congress wanted the feds to track them down.

Prior to computers and the internet, it wasn't very realistic that a continuously operating poker room, large enough for the federal government to be concerned with, could operate undetected by local law enforcement.

But technology clearly put poker within the scope of gambling concerns which only the federal government is readily capable of shutting down, making internet poker the exact type of game Congress would have had in mind when drafting the IGBA had it been invented at the time.

I believe that the concern for the DOJ won't be whether poker fits the IGBA scope of gambling, but whether the state laws, particularly in NY, required to trigger an IGBA violation can even be applied to a game being played virtually on foreign soil where it is legal.

Obviously these processors, being in Utah, have no extraterritorial defense for the role they played in funding gambling business, so they are clinging to the poker isn't gambling lifeline the site lawyers threw them, but I think the offshore sites (that didn't defraud their customers) have a reasonable chance at acquittal.

I don't like news threads titled "Breaking:..."

because a month later when the thread gets bumped, its not breaking anymore, its old.

And when you see the thread has 100+ posts, it looks like something major has happened...

Here is what I was able to find on "pool-selling"

While the extraterritoriality question was argued, the motion in limine asking for the jury to be the ones to make certain determinations, go farther.

I am oversimplifying greatly here, but much of the argument revolves around what should be proven BEFORE any underlying state laws can be considered. For example, for UIGEA and IGBA charges, it would have to be proven that the defendants "knew" their actions constituted "unlawful internet gambling" based on the statutory definition, including "game of chance", and further that the conduct included not only something they knew was "unlawful" but also met the burden of the statutory definition of "gambling". The defense contends that these proofs must be shown before even considering any possible underlying state law violations, and therefore evidence in this regard should be a matter for the jury as triers of fact, rather than the court deciding, as a matter of law.

I hesitate to paraphrase more than that here, because IANAL and I will not do the arguments justice, but if you read the cases cited (yes I read every one) in the defense and govt motions and responses, it will be clearer.

Pool-selling is bookmaking.

Example: Think of it like buying into a football pool, (or baseball, etc, although not limited to sports).
Choose your box(es) on the chart and purchase them.Football game over.Purchaser of the box with the winning score wins the "pool", less the 10% (or other) commission for the pool-seller.

Whether the pool relies on a point spread or not, you are buying a chance to win money based on some event beyond your control. While there is skill involved in the football game, it's not YOUR skill. You take no active role in the outcome of the event that would cause you to win the prizepool. There are no cards.
I don't see how anyone can see any similarity to online peer-to-peer poker.

I loved where you were going with your post even before you mentioned me specifically The formal logical construction seems fine at first glance, and it has a pretty simple intuition, too: the list is only supposed to include nonexplicit elements that have CLEAR properties in common. Then the only issue would be which properties should be reasonably construed as being clear. Maybe actual facts and science end up being clearly-applicable properties, such as the fact that no multiplayer competitive strategy games are on the list and that poker is fundamentally structurally identical to a class of games that is never considered as "gambling" even when played for money, seriously, come on, maybe if I type it in bold hard enough, the world will finally hear and understand, etc. But, as lawdude always points out, maybe legislative/social intent is supposed to be a clear property; the games on the list are games that have historically been treated as "gambling" (whatever that may mean) and therefore any game that is perceived as gambling belongs on the list.

So I like the angle you're coming at it from, but my non-legal instinct is that this doesn't actually get us anywhere. When it's a matter of deciding which properties are significant, it still comes down to demonstrating that poker is distinct from the explicit list of games in a significant way, and it may still come down to common perception and a legislative intent to include all "gambling" regardless.

See Malloy v Metropolitan Transportation Authority, 94 F.3d 808, 812 (2d Cir. 1996), where when considering changes to “‘including, but not limited to’” seven enumerated examples”, the court held that only changes “similar to the specific items in the list” were captured by the statute.