726 F.3d 92 (2nd Cir. 2013), 12-3720, United States v. Dicristina

Docket Nº:12-3720
Citation:726 F.3d 92
Opinion Judge:Straub, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Appellant, v. LAWRENCE DICRISTINA, Defendant-Appellee
Attorney:MARISA M. SEIFAN, Assistant United States Attorney (David C. James, Nathan D. Reilly, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellant. NEAL K. KATYAL (Christopher T. Handman, Dominic F. Perella, Elizabeth B. Prelogar, H...
Judge Panel:Before: STRAUB, HALL, AND CHIN, Circuit Judges.
Case Date:August 06, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 92

726 F.3d 92 (2nd Cir. 2013)




No. 12-3720

United States Court of Appeals, Second Circuit

August 6, 2013

Argued June 19, 2013.

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Appeal from an order of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), granting Defendant's motion to dismiss the second superseding indictment and vacating his conviction for operating and conspiring to operate an illegal poker business, in violation of 18 U.S.C. § § 1955 and 371. We hold that the District Court erred in determining that Defendant's poker business did not fall within the ambit of the Illegal Gambling Business Act.

Accordingly, the order of the District Court is REVERSED.

MARISA M. SEIFAN, Assistant United States Attorney (David C. James, Nathan D. Reilly, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellant.

NEAL K. KATYAL (Christopher T. Handman, Dominic F. Perella, Elizabeth B. Prelogar, Hagan C. Scotten, on the brief), Hogan Lovells U.S. LLP, Washington, DC, for Defendant-Appellee.

Patrick W. Fleming, Portsmouth, NH, for amici curiae Amateur Poker Players in support of Defendant-Appellee.

Paul D. Clement (D. Zachary Hudson, on the brief), Bancroft PLLC, Washington, DC, for amicus curiae Robert C. Hannum, in support of Defendant-Appellee.

Anand S. Raman (Michael A. McIntosh, on the brief), Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for amicus curiae James McManus in support of Defendant-Appellee.

Thomas C. Goldstein (Tejinder Singh, on the brief), Goldstein & Russell, P.C., Washington, DC, for amicus curiae The Poker Players Alliance in support of Defendant-Appellee.

Miguel A. Estrada (Jonathan C. Bond, on the brief), Gibson, Dunn & Crutcher LLP, Washington, DC, for amici curiae Former United States Attorneys Roscoe C. Howard, Jr. and Robert J. Cleary in support of Defendant-Appellee.

Erik S. Jaffe, Washington, DC, for amici curiae Joe Edley, Jesse Day, and Martin Fleisher in support of Defendant-Appellee.

Kenneth L. Adams (Christopher T. Leonardo, on the brief), Adams Holcomb LLP, Washington, DC, for amici curiae Michael Sexton, Gregory Raymer, Jonathan Little, and Vanessa Selbst in support of Defendant-Appellee.

Lisa S. Blatt (Matthew C. Phillips, R. Stanton Jones, on the brief), Arnold & Porter LLP, Washington, DC, for amicus curiae Chamath Palihapitiya in support of Defendant-Appellee.

Before: STRAUB, HALL, AND CHIN, Circuit Judges.


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Straub, Circuit Judge:

The United States appeals from an August 21, 2012 order of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge ) entering a post-verdict judgment of acquittal in favor of Defendant-Appellee Lawrence DiCristina, setting aside the guilty verdict on one count of violating the Illegal Gambling Business Act (the " IGBA" ), 18 U.S.C. § 1955, and one count of conspiring to do so under 18 U.S.C. § 371. The District Court ruled that DiCristina's conviction must be set aside because " Texas Hold'em" poker was not covered by the IGBA. United States v. DiCristina, 886 F.Supp.2d 164 (E.D.N.Y. 2012). Because we find that the plain language of the IGBA covers DiCristina's poker business, we REVERSE the judgment of acquittal and REMAND to the District Court with instructions to reinstate the jury verdict, enter a judgment of conviction on both counts, and proceed with sentencing DiCristina.

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The basic facts of this case are not in dispute: between December 2010 and May 2011, DiCristina, along with his co-defendant Stefano Lombardo and others, operated a poker club in the back room of a warehouse in Staten Island, New York, out of which he conducted a legitimate business selling electric bicycles. DiCristina, 886 F.Supp.2d at 198. The poker games,1 which were generally held twice a week, were advertised by word of mouth and text message. Id. " The club contained two tables at which No Limit Texas Hold'em was played." Id. The dealers collected a five percent " rake" for the house from each pot, twenty-five percent of which they kept as payment. Id. " The remaining funds from the rake were used for expenses relating to the operation of the business and for profits." Id. Other than the operation of these poker games, no unlawful conduct by DiCristina is alleged. Id. DiCristina and Lombardo pleaded guilty on December 12, 2011. On May 1, 2012, DiCristina was permitted to withdraw his guilty plea, and the matter was set for trial.

On June 29, 2012, DiCristina moved to dismiss the second superseding indictment on the basis that poker is not house-banked2 or predominated by chance, and thus is not encompassed in the IGBA's enumerated list of illegal types of " gambling." The District Court heard testimony by DiCristina's expert, Dr. Randall Heeb, as to why skill predominates over chance in poker, DiCristina, 886 F.Supp.2d at 173-85, but reserved decision on the motion to dismiss, and the parties went forward with trial. Id. at 168. Over DiCristina's objection, the District Court ruled that the question of whether poker fell within the IGBA was a question of law to be decided by the court, excluded Dr. Heeb's testimony as irrelevant, id. at 171, and instructed the jury that gambling under the IGBA " includes playing poker for money." [GA205]

The jury found DiCristina guilty on both counts charged in the second superseding indictment. DiCristina then renewed his motion to dismiss in the form of a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. He argued that (1) in order for conduct to come under the purview of the IGBA, it must be sufficiently similar to the nine games enumerated in § 1955(b)(2); and (2) poker did not fall within the statutory definition of an illegal gambling business because it was neither house-banked nor predominated by chance. DiCristina, 886 F.Supp.2d at 169. The Government argued that subsection (b)(2) did not, by its plain language, restrict the games that constitute unlawful gambling under the IGBA and therefore it was sufficient for purposes of the statute that a gambling activity was illegal under

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state law, as poker was under New York law in this instance. Id. After considering additional briefing and expert testimony from both sides, the District Court dismissed the second superseding indictment and entered a judgment of acquittal.

The District Court determined that both the Government and DiCristina presented plausible readings of the statute, and that the legislative history was not decisive as to whether Congress meant to include poker within the IGBA. Reasoning that the IGBA did not " provide explicit criteria" for defining gambling, and that there were " ambiguities in the federal definition of gambling," the District Court found that the " governing criteria must be derived by determining what common characteristics unif[y] the games listed in § 1955[(b)(2)] into a cohesive group. " Id. at 226. The District Court found that " dictionary, common law, and other federal definitions of gambling argue in favor of a definition limited to games of chance." Id. at 230. It then determined that poker did not constitute " gambling" under the IGBA because poker is predominated by skill rather than chance. Id. at 234. This timely appeal followed.


I. Applicable Law

We review a district court's legal conclusions, including those interpreting the meaning of a statute, de novo. United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009); United States v. Koh, 199 F.3d 632, 636 (2d Cir. 1999).

When interpreting a statute, we " must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." United States v. Kozeny, 541 F.3d 166, 171 (2d Cir. 2008) (interpreting 18 U.S.C. § 3292) (quoting United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)) (internal quotation marks omitted). " Where the statute's language is 'plain, the sole function of the courts is to enforce it according to its terms.'" Id. (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)); see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (" We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." ).

Statutory enactments should, moreover, be read so as " to give effect, if possible, to every clause and word of a statute." Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)) (internal quotation marks omitted); see also United States v. Nordic Vill., Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (noting " the settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect" ); United States v. Anderson, 15 F.3d 278, 283 (2d Cir. 1994) (" [C]ourts will avoid statutory interpretations that render provisions superfluous." ). And " [t]he 'whole act' rule of statutory construction exhorts us to read a section of a statute not 'in isolation from the context of the whole Act' but to 'look to the provisions of the whole law, and to its object and policy.'" United States v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (quoting Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)).

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