DOJ sworn testimony: Attention Attorneys

[Pokerboy2007]

Hello,

I'm fairly new to this forum but wanted to throw something out to the legal minds on the forum.

I'd like to refer to the following sworn testimony of Bruce Ohr who heads DOJ crime division. It relates to the Internet Prohibition Act in it's earlier version last year.

http://judiciary.house.gov/media/pdfs/ohr040506.pdf

Of particular interest for me is the last paragraph before his conclusion....

".....Finally, the Department of Justice also has some drafting concerns with the legislation, including several of the definitions slated to be added to Section 108 1. For example, since the definition of the term "bet or wager" requires that the activity be "predominately subject to chance," we are concerned whether this definition is sufficient to cover card games, such as poker."

So my question.... do you think this statement may suggest that the DOJ would likely stay away from online poker cases as they seem to have done in the past?

Look forward to hearing your thoughts.

[DespotInExile]

Nice catch, but this leads me to believe that the DOJ would like the statute to cover poker, but that it is uncertain whether the law as drafted is sufficiently clear to grant this jurisdication. DOJ would likely be asking for a clarifying amendment to cover poker.

[Rigel]

[ QUOTE ]


So my question.... do you think this statement may suggest that the DOJ would likely stay away from online poker cases as they seem to have done in the past?



[/ QUOTE ]

Hard to say, depends upon how aggressive the DOJ wants to be towards poker specifically, rather than gambling in general. There's a Fifth Circuit Court of Appeals decision finding that poker is not illegal under the 1961 Wire Act, but that's just one circuit court opinion which is only binding authority in the 3 states comprising the 5th circuit (Tx, La & Miss). The DOJ could always file suit in any other state and invite the district court and then circuit court there to rule that online poker is illegal.

The 5th circuit opinion isn't binding authority in other circuits, but it is so-called "persuasive authority" and it's very well-reasoned and so I think the DOJ would lose in other circuits as well. But that doesn't mean they won't litigate the issue anyway- just choosing to litigate the issue would put additional pressure on the poker sites and it would likely be years before the circuit court weighed in on the issue one way or another. And this won't be settled for good unless and until the US Supreme Court weighs in, which will take even longer.

So my Cliff's note answer is that the DOJ probably knows that this is a loser issue for them eventually, but if their goal is to apply pressure, they may well choose to litigate it anyway.

[Fishhead24]

The UK recently declared poker a game of CHANCE.........not good.

-FH-

[1p0kerboy]

There's only room for 1p0kerboy on these forums...

Seriously though, the wording got changed by the time the bill got modified and attached to the Port Securities thingy. It now covers "all games subject to chance"

[Rigel]

[ QUOTE ]
The UK recently declared poker a game of CHANCE.........not good.

-FH-

[/ QUOTE ]

Totally irrelevant for the US federal courts which will decide the issue. This is a matter of specific statutory interpretation- the statutes being the 1961 Wire Act and the UIGEA, which did not criminalize poker but dealt with payment processors. It's simply an enforcement statute of existing laws.

So when this issue comes before federal courts again, they aren't going to engage in some nebulous discussion of the nature of poker, they are going to delve into the specific US statutes, which were not considered by the British jury. And the opinion of the Fifth Circuit Court of Appeals interpreting the same statutes in favor of online poker players will be very persuasive indeed.

And FWIW, Justice Antonin Scalia of the US Supreme Court- ordinarily one of the most conservative judges- is a huge poker fan.

[Rigel]

[ QUOTE ]
There's only room for 1p0kerboy on these forums...

Seriously though, the wording got changed by the time the bill got modified and attached to the Port Securities thingy. It now covers "all games subject to chance"

[/ QUOTE ]

The UIGEA does effect payment processors and US commercial institutions which send money to poker sites. But it doesn't criminalize the playing of poker itself. It's an enforcement statute, designed to provide additional enforcement for pre-existing laws.

I believe the UIGEA does make it illegal to run an online poker site, but all the remaining sites are privately owned corporations in foreign jurisdictions. They are outside the reach of the FBI as long as they are careful, and the players in the US are not breaking the law by playing poker.

[yeahright]

yeah, I believe unfortunitely that the wording "predominately subject to chance" was not what was included in the bill.

Just "subject to chance" was the final wording, which covers just about everything I do in my daily routine.

[rokstedy]

[ QUOTE ]
yeah, I believe unfortunitely that the wording "predominately subject to chance" was not what was included in the bill.

Just "subject to chance" was the final wording, which covers just about everything I do in my daily routine.

[/ QUOTE ]

Other high profile activities that are subject to chance:

Football - One bad spot by a line judge can make a big difference. Football is HIGHLY subjective.

Baseball - The difference between a home run and a pop fly is often less then a half inch in terms of where the bat meets the ball.

Basketball - The BEST shooters in the NBA shoot just 50%.

Stock Markeet - Widely regarded as the very epitome of the American Dream is nothing more than gambling in a suit. Actual and for real, playing the market can often be done simply by throwing darts at a board.

The freaking lottery - Standard

All of business, finance, life etc. is subject to chance. This definition they use has always baffled me. How many American Hero millionaires are there in history that were simply in the right place at the right time?

[MiltonFriedman]

Actually, I think it was found to be a "mixed" game of skill and chance ... which was sufficient to require a license under the UK Gaming Act

[Skallagrim]

Milton is right, and the UK defintion of what was subject to licensing is not the same as whats legal or not in the US - I believe the actual finding was significant skill subject to chance - which would actually mean it is NOT "gambling" under most state laws.

The UIGEA is one of the most poorly writen statutes ever. At one point it does define gambling as, among other things, participating in "games subject to chance." But at another point it outright states that the act "does not change" what was or was not illegal gambling under prior law. If that second statement is determined to be the more important one (quite likely IMHO), then the UIGEA has to fall back on State law definitions - and in some states poker is illegal gambling, in some states it is not. Thus, under this interpertation, an online poker site accepting money from a player in a state where poker is not illegal gambling (like California for example) would NOT be breaking the law.

Until the US Supreme Court rules one way or the other, no one can be 100% certain of the law's applicability to poker.

Which means there is room for hope.

[jaminbird]

[ QUOTE ]
Actually, I think it was found to be a "mixed" game of skill and chance ... which was sufficient to require a license under the UK Gaming Act

[/ QUOTE ]

You are correct

[Pokerboy2007]

WOW... first class feedback from everyone... thank you!!

So, in summary, for my small pea brain it sounds like the consensus is that the UIGEA in it's final form did address the concerns of DOJ, including everything under the sun with a component of chance. Perhaps, as suggested, this detail became irrelevant with language that upholds all pre-existing definitions of unlawful gaming. Certainly not shocking that the wording in this bill is shotty at best, given the extraordinary means in which it was passed.

So it may go back to the Mastercard decision, in 5th district, at least as a legal precedent.

Another great point is that, despite the legal teeth the DOJ can and likely will go after poker, casino, and sportsbooks. They are clearly going after the biggest rewards (cash) in order to pay for all of those attorneys.

If the assumed US owned poker sites (Full Tilt, Doyle, Negreanu, Hollywood)continue to operate unscathed, AND the DOJ attempt a prosecution of say a Poker Stars... do you think that the rogues existence would be relevant to the Stars testimony?