7/28/2019 Brief And Special Appendix For The United States
1/53
12-3720To Be Argued By:
NATHAN D. REILLY
United States Court of AppealsFor the Second Circuit
UNITED STATES OF AMERICA,
Appellant,
against
LAWRENCE DICRISTINA,
Defendant-Appellee,
STEFANO LOMBARDO, also known as MITZIE,
Defendant.
On Appeal From The United States District Court
For The Eastern District of New York
BRIEF AND SPECIAL APPENDIXFOR THE UNITED STATES
d
LORETTA E. LYNCH,United States Attorney,
Eastern District of New York.DAVID C. JAMES,
MARISA MEGUR SEIFAN,NATHAN D. REILLY,
Assistant United States Attorneys,Of Counsel.
Case: 12-3720 Document: 22 Page: 1 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
2/53
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . iii
PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 2
JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . 2
QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . 4
A. The Motion to Dismiss and the Daubert Hearing.. . . . 4
B. Trial.. . . . . . . . . . . . . . . . . . . . . . . . 6
C. Post-Trial Briefing and Proceedings.. . . . . . . . . 7
D. The Memorandum and Order. . . . . . . . . . . . . . . 9
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
THE DISTRICT COURT ERRED INGRANTING DICRISTINAS MOTION. . . . . . . . . . . . . . . . . 14
A. Legal Standards.. . . . . . . . . . . . . . . . . . 14
1. Standard of Review.. . . . . . . . . . . . . . 14
2. Statutory Scheme.. . . . . . . . . . . . . . . 14
B. 1955(b)(2) Does Not Define Gamblingfor Purposes of the IGBA. . . . . . . . . . . . . . 16
C. The District Courts Definition ofGambling Is Unduly Narrow.. . . . . . . . . . . . 18
1. Legislative History. . . . . . . . . . . . . . 22
2. Sports Betting.. . . . . . . . . . . . . . . . 29
3. Other Federal Statutes.. . . . . . . . . . . . 33
Case: 12-3720 Document: 22 Page: 2 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
3/53
ii
C. The Interpretative Aids Invoked by theDistrict Court Do Not Support its Definitionof Gambling.. . . . . . . . . . . . . . . . . . . 35
1. The Rule of Lenity.. . . . . . . . . . . . . . 35
2. Common Law.. . . . . . . . . . . . . . . . . . 38
3. Ejusdem Generis. . . . . . . . . . . . . . . . 40
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 43
Case: 12-3720 Document: 22 Page: 3 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
4/53
iii
TABLE OF AUTHORITIES
CASES
Abbott v. United States,131 S. Ct. 18 (2010). . . . . . . . . . . . . . . . . . . . 35
In re Advisory Opinion to the Governor,856 A.2d 320 (R.I. 2004). . . . . . . . . . . . . . . . . . 26
Ali v. Fed. Bureau of Prisons,552 U.S. 214 (2008).. . . . . . . . . . . . . . . . . . . . 42
Barber v. Thomas,130 S. Ct. 2499 (2010). . . . . . . . . . . . . . . . . . . 35
CSX Transp., Inc. v. Alabama Dept. of Revenue,131 S. Ct. 1101 (2011). . . . . . . . . . . . . . . . . . . 40
City of New York v. Permanent Mission of India to United Nations,618 F.3d 172 (2d Cir. 2010).. . . . . . . . . . . . . . 41, 42
Commonwealth v. Dent,992 A.2d 190 (Pa. Super. 2010). . . . . . . . . . . . . . . 26
Cooper Distrib. Co. v. Amana Refrig., Inc.,63 F.3d 262 (3d Cir. 1995). . . . . . . . . . . . . . . . . 41
DePierre v. United States,131 S. Ct. 2225 (2011). . . . . . . . . . . . . . . . . . . 35
Duncan v. Walker,533 U.S. 167 (2001).. . . . . . . . . . . . . . . . . . . . 11
Emerson v. Townsend,73 Md. 224 (1890).. . . . . . . . . . . . . . . . . . . . . 26
Garono v. State,524 N.E.2d 496 (Ohio 1988). . . . . . . . . . . . . . . . . 26
Garrett v. Alabama,963 So. 2d 700 (Ala. Crim. App. 2007).. . . . . . . . . . . 26
Ianelli v. United States,420 U.S. 770 (1975).. . . . . . . . . . . . . . . . . . . . 27
Joker Club LLC v. Hardid,643 S.E.2d 626 (N.C. Ct. App. 2007).. . . . . . . . . . . . 26
Case: 12-3720 Document: 22 Page: 4 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
5/53
iv
Jones v. United States,526 U.S. 227 (1999).. . . . . . . . . . . . . . . . . . . . 33
Liparota v. United States,471 U.S. 419 (1985).. . . . . . . . . . . . . . . . . . 36, 38
Muscarello v. United States,524 U.S. 125 (1998).. . . . . . . . . . . . . . . . . . . . 36
People v. Mitchell,444 N.E.2d 1153 (Ill. App. Ct. 1983). . . . . . . . . . . . 26
People v. Turner,629 N.Y.S.2d 661 (N.Y. Crim. Ct. 1995). . . . . . . . . . . 26
Ramirez v. City Demonstration Agency,549 F.2d 97 (9th Cir. 1976).. . . . . . . . . . . . . . . . 41
Smith v. United States,508 U.S. 223 (1993).. . . . . . . . . . . . . . . . . . . . 29
State ex rel Schillberg v. Barnet,488 P.2d 255 (Wash. 1971).. . . . . . . . . . . . . . . . . 26
State v. Duci,151 Ariz. 263 (1986). . . . . . . . . . . . . . . . . . . . 26
State v. Schlein,253 Kan. 205 (1993).. . . . . . . . . . . . . . . . . . . . 26
Taniguchi v. Kan Pacific Saipan, Ltd.,132 S. Ct. 1997 (2012). . . . . . . . . . . . . . . . . . . 18
Town of Mount Pleasant v. Chimento,2012 WL 5870814 (S.C. Nov. 21, 2012). . . . . . . . 21, 26, 39
Union Bank v. Wolas,502 U.S. 151 (1991).. . . . . . . . . . . . . . . . . . . . 29
United States v. Aguilar,515 U.S. 593 (1995).. . . . . . . . . . . . . . . . . . . . 40
United States v. Angiulo,897 F.2d 1169 (1st Cir. 1990).. . . . . . . . . . . . . . . 18
United States v. Aquino,336 F. Supp. 737 (E.D. Mich. 1972). . . . . . . . . . . . . 24
Case: 12-3720 Document: 22 Page: 5 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
6/53
v
United States v. Atiyeh,402 F.3d 354 (3d Cir. 2005).. . . . . . . . . . . . . . 10, 17
United States v. DiCristina,__ F. Supp. 2d __, 2012 WL 3573895 (E.D.N.Y. 2012). . . passim
United States v. Farris,624 F.2d 890 (9th Cir. 1980). . . . . . . . . . . . . . . . 24
United States v. Gotti,459 F.3d 296 (2d Cir. 2006).. . . . . . . . 10, 13, 17, 20, 21
United States v. Harris,959 F.2d 246 (D.C. Cir. 1992).. . . . . . . . . . . . . . . 29
United States v. Hunter,478 F.2d 1019 (7th Cir. 1973).. . . . . . . . . . . . . . . 18
United States v. Kaczowski,114 F. Supp. 2d 143 (W.D.N.Y. 2000).. . . . . . . . . . . . 18
United States v. Migi,329 F.3d 1085 (9th Cir. 2003).. . . . . . . . . . . . . . . 41
United States v. Mine Workers,330 U.S. 258 (1947).. . . . . . . . . . . . . . . . . . . . 33
United States v. Reitano,862 F.2d 982 (2d Cir. 1988).. . . . . . . . . . . . . . . . 18
United States v. Rieger,942 F.2d 230 (3d Cir. 1990).. . . . . . . . . . . . . . . . 17
United States v. Roselli,432 F.2d 879 (9th Cir. 1970). . . . . . . . . . . . . . . . 29
United States v. Sacco,491 F.2d 995 (9th Cir. 1974). . . . . . . . . . . . . . . . 23
United States v. Stewart,590 F.3d 93 (2d Cir. 2009). . . . . . . . . . . . . . . . . 14
United States v. Tarter,522 F.2d 520 (6th Cir. 1975). . . . . . . . . . . . . . . . 17
United States v. Useni,516 F.3d 634 (7th Cir. 2008). . . . . . . . . . . . . . . . 18
Case: 12-3720 Document: 22 Page: 6 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
7/53
vi
United States v. Velastegui,199 F.3d 590 (1999).. . . . . . . . . . . . . . . . . . . . 36
Utsler v. Territory,10 Okla. 463 (1900).. . . . . . . . . . . . . . . . . . . . 39
STATUTES
18 U.S.C. 1955. . . . . . . . . . . . . . . . . . . . . passim
25 U.S.C. 2703. . . . . . . . . . . . . . . . . . . . . . . 35
Ariz. Rev. Stat. 13-3301. . . . . . . . . . . . . . . . . . 20
Ark. Code 5-66-112. . . . . . . . . . . . . . . . . . . . . 26
Cal. Pen. Code 337j.. . . . . . . . . . . . . . . . . . . . 26
Conn. Gen Stat. 53-278a.. . . . . . . . . . . . . . . . . . 26
Fla. Stat. 849.085. . . . . . . . . . . . . . . . . . . . . 26
Haw. Rev. Stat. 712-1220. . . . . . . . . . . . . . . . . . 20
Idaho Code 18-3801. . . . . . . . . . . . . . . . . . . . . 26
Idaho Const. Art III 20(2). . . . . . . . . . . . . . . . . 26
720 Ill. Comp. Stat. 5/28-1.. . . . . . . . . . . . . . . . 20
Indian Gambling Regulatory Act,25 U.S.C. 2701, et seq.,. . . . . . . . . . . . . . . . . 34
Iowa Code 99B.11. . . . . . . . . . . . . . . . . . . . . . 26
La. Rev. Stat. Ann. 14:90.. . . . . . . . . . . . . . . . . 20
N.J. Stat. Ann. 2C:37-1.. . . . . . . . . . . . . . . . . . 20
N.Y. Penal Law 225.00.. . . . . . . . . . . . . . . 15, 16, 20
National Gambling Impact Study Commission ActPub. L. No. 104-169, 110 Stat. 1482 (1996)(codified at 18 U.S.C. 1955 notes). . . . . . . . . . 33, 34
Okla. Stat. 21 941. . . . . . . . . . . . . . . . . . . . . 26
Case: 12-3720 Document: 22 Page: 7 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
8/53
vii
Or. Rev. Stat. 167.117. . . . . . . . . . . . . . . . . 20, 26
Pub. L. No. 91-452, 84 Stat. 922 (1970).. . . . . . . . . . . 24
Pub. L. No. 104-169, 110 Stat. 1482 (1996). . . . . . . . . . 33
Tenn. Code Ann. 39-17-501.. . . . . . . . . . . . . . . . . 26
Wis. Const. Art IV, 24(6)(c). . . . . . . . . . . . . . . . 26
LEGISLATIVE MATERIALS
116 Cong. Rec. 590 (daily ed. Jan. 21, 1970). . . . . . . . . 27
116 Cong. Rec. 591 (daily ed. Jan. 21, 1970). . . . . . . . . 25
116 Cong. Rec. 601 (daily ed. Jan. 21, 1970). . . . . . . . . 25
116 Cong. Rec. 604 (daily ed. Jan. 21, 1970). . . . . . . . . 24
Hearing on S.30 and Related Bills before Subcomm. No. 5of the H. Comm. on the Judiciary,91st Cong. 2d Sess. (May 21, 1970).. . . . . . . . . . . . 25
Illegal Gambling Business Control Act of 1969,S. 2022, 91st Cong., 1st Sess. 201. . . . . . . . . . . . 22
Report of the Senate Judiciary Committee,S. Rep. No. 91-617, 91st Cong., 1st Sess. (Dec. 18 1969).. 27
MISCELLANEOUS
American Heritage Dictionary of the English Language(1st ed. 1969). . . . . . . . . . . . . . . . . . . . . . 19
Blacks Law Dictionary (9th ed. 2009).. . . . . . . . . . . . 18
Anthony Cabot & Robert Hannum,Poker: Public Policy, Law, Mathematics, and the Futureof an American Tradition,22 T.M. Cooley L. Rev. 443 (2005).. . . . . . . . . . . . . 38
Garrett Downing, Career Sports Bettors Battle theBetting Line, Las Vegas Sun, Mar. 30, 2009. . . . . . 30, 32
Case: 12-3720 Document: 22 Page: 8 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
9/53
viii
The Gambler, 60 Minutes(CBS television broadcast Jan. 16, 2011).. . . . . . . 31, 32
Anthony Holden, Bigger Deal: A Year Inside the Poker Boom
(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 28
James McManus, Cowboys Full: The Story of Poker (2009). . . . 39
Merriam-Webster Online Dictionary (July 27, 2012).. . . . . 39-40
Office of the Attorney General of the State of New York,Formal Opinion No. 84-F1, N.Y., Op. Att'y Gen. (1984). . . 30
President's Commission on Law Enforcement &Administration of Justice,The Challenge of Crime in a Free Society (1967).. . . . . 27
Roget's International Thesaurus (3d ed. 1962).. . . . . . . . 21
The Random House College Dictionary (rev. ed. 1980). . . . . 19
Scott Van Voorhis, Profs Back Online Poker,Boston Herald, Oct. 22, 2007.. . . . . . . . . . . . . . . 30
Webster's New Collegiate Dictionary (1976).. . . . . . . . . 19
Webster's Third New International Dictionary (1966).. . . . . 19
Case: 12-3720 Document: 22 Page: 9 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
10/53
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No. 12-3720
UNITED STATES OF AMERICA,
Appellant,
- against -
LAWRENCE DICRISTINA,
Defendant-Appellee.
STEFANO LOMBARDO, also known as MITZIE,
Defendant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NEW YORK
BRIEF FOR THE UNITED STATES
PRELIMINARY STATEMENT
The United States appeals from a Memorandum, Order and
Judgment entered August 21, 2012 in the United States District
Court for the Eastern District of New York (Weinstein, J.), which
granted the motion of the Defendant-Appellee Lawrence DiCristina to
dismiss the second superseding indictment and vacated DiCristinas
conviction for operating and conspiring to operate an illegal poker
club, in violation of 18 U.S.C. 1955 and 371. See United States
Case: 12-3720 Document: 22 Page: 10 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
11/53
2
v. DiCristina, __ F. Supp. 2d __, 2012 WL 3573895 (E.D.N.Y. 2012).
JURISDICTIONAL STATEMENT
The jurisdiction of this Court is invoked pursuant to 18
U.S.C. 3731. The district court had jurisdiction pursuant
18 U.S.C. 3231. Timely notice of appeal was filed on September
19, 2012.
QUESTION PRESENTED
Whether the district court erred in ruling that wagering
on poker is not a form of gambling for purposes of the Illegal
Gambling Business Act (IGBA), 18 U.S.C. 1955.
Case: 12-3720 Document: 22 Page: 11 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
12/53
3
STATEMENT OF THE CASE
On December 9, 2011, a grand jury sitting in the Eastern
District of New York returned a two-count second superseding
indictment against DiCristina and Stefano Lombardo. (GA 4, 10-
15). The defendants were charged with operating and conspiring to1
operate an illegal poker club, in violation of 18 U.S.C. 1955
and 371.
Lombardo and DiCristina both pleaded guilty on December
12, 2011. Lombardo was sentenced to four years of probation. On
May 1, 2012, DiCristina was permitted to withdraw his guilty plea.
Jury selection was set for July 2, 2012 and a trial date was set
for July 9, 2012. On June 29, 2012, DiCristina moved to dismiss
the second superseding indictment on the grounds, inter alia, that
poker did not constitute gambling under the IGBA. (GA 5). The
district court reserved decision on the motion.
On July 12, 2012, the jury found DiCristina guilty on
both counts. After the verdict was returned, DiCristina renewed
his motion to dismiss the second superseding indictment in the form
of a motion for a judgment of acquittal. (GA 7). Following
additional briefing, on August 21, 2012, the district court issued
a Memorandum, Order and Judgment which dismissed the second
superseding indictment and vacated DiCristinas conviction.
GA, SPA and T refer to the governments appendix, the1
special appendix and the trial transcript, respectively. DErefers to entries on the district courts docket sheet.
Case: 12-3720 Document: 22 Page: 12 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
13/53
4
STATEMENT OF FACTS
The charges against DiCristina arose from his operation
of an illegal poker game in a warehouse in Staten Island, New York
between December 2009 and May 2010.
A. The Motion to Dismiss and the Daubert Hearing
On June 29, 2012, DiCristina moved to dismiss the second
superseding indictment on the grounds that (a) the government must
prove not only that the defendants poker business was an illegal
gambling operation under New York State law but also that poker
falls within the IGBAs definition of gambling; and that
(b) poker did not constitute gambling as defined in the IGBA.
(GA 7). On July 3, 2012, the Poker Players Alliance filed an
amicus brief in support of DiCristinas motion to dismiss.
(DE 74). In addition, DiCristina moved to qualify Randal Heeb,
Ph.D., an econometrician and accomplished poker player, as an
expert to testify at trial.
On July 5, 2012, the government filed its response to the
defendants motion to dismiss and moved to preclude the testimony
of Dr. Heeb. (DE 76). The defendant filed a reply to the
governments motion on July 6, 2012. (DE 78).
On July 6, 2012, the court held a Daubert hearing in
which Dr. Heeb, who was then participating in a poker tournament in
Las Vegas, Nevada, testified by video conference. Dr. Heeb
recounted the results of a study he had performed of 415 million
Case: 12-3720 Document: 22 Page: 13 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
14/53
5
hands of No-Limit Texas Holdem poker (the same variety of poker
played at DiCristinas club) that had been played on the Internet.
(GA 109-10, 136). Based upon that analysis, Dr. Heeb concluded
that skill predominates over chance in poker. (GA 113). His
study involved two principal analyses. First, Dr. Heeb found that
players who were more successful (i.e., won more money) betting
with a particular combination of cards were also more successful
betting with other combinations of cards. (GA 119-21). Second, he
used a regression analysis to construct a skill index for one
group of poker players and found that it correctly predicted the
results achieved by a second group of players. (GA 126-28). He
also determined that, the more hands of poker that are played, the
more often skilled players predominated over unskilled players.
(GA 128-30). Specifically, he found that, after 900 hands of poker
(equivalent to approximately 30 hours of play (GA 339)), the more
skilled players achieved more successful results than the less
skilled players 90 percent of the time. (GA 129, 140). Dr. Heeb
testified that his results were consistent with other published
studies. (GA 135-36). He concluded that poker fell on a continuum
between pure games of skill, such as chess, and pure games of
chance, such as roulette. (GA 139-40).
On cross-examination, Dr. Heeb acknowledged that a more
skilled poker player could lose a hand to a less skilled player
even when the odds favored the more skilled player. (GA 152-53).
Case: 12-3720 Document: 22 Page: 14 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
15/53
6
He conceded that poker definitely is a game which has an element
of chance. (GA 153). He also acknowledged that his opinion about
the role of skill in poker depended upon playing a large number of
hands, such as in a tournament, while informal cash games had no
minimum number of hands and players in such games could leave
whenever they wanted. (GA 161-62). Thus, in a cash game, a less
skilled but lucky player could leave the game after winning a hand
and come out ahead of a more skilled player. (GA 162-66).
At the conclusion of the hearing, the district court
ruled that Dr. Heeb would not be permitted to testify at trial
because whether poker constituted gambling under Section 1955 was
a legal question for the court. The district court reserved
decision and the case proceeded to trial. (GA 178-79).
B. Trial
At trial, the government presented evidence that
DiCristina operated a casino-style poker room out of a warehouse in
Staten Island which also housed an electric-bicycle business that
he owned. The government presented testimony from two cooperating
witnesses, Joseph Monteleone and Deborah Berardi, who had
previously pleaded guilty to violations of the IGBA for their roles
in running or working at illegal poker games. (T 26-67, 144-54,
171-87). These witnesses testified about witnessing DiCristina
running the poker operations. The government also introduced the
testimony of an undercover New York City Police Department
Case: 12-3720 Document: 22 Page: 15 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
16/53
7
detective who had gambled in DiCristinas game as well as
undercover video taken by the detective. In that video, DiCristina
could be seen describing himself as the operator of the poker game
and describing how long the game had been running. Finally, the
government introduced evidence seized, pursuant to a search
warrant, from DiCristinas warehouse including playing cards, poker
chips and gambling ledgers that reflected the amount that gamblers
and the house made on a given night.
During the trial, the jury was instructed that poker
constituted gambling under the IGBA. (GA 205, 208). On July 11,
2012, the jury convicted the defendant on both counts. After the
verdict, the defendant renewed his motion to dismiss the second
superseding indictment in the form of a motion for a judgment of
acquittal. The court reserved decision on the defendants motion
pending the submission of additional briefing.
C. Post-Trial Briefing and Proceedings
On July 27, 2012, the government filed its response to
the defendants motion for acquittal (DE 96) and on July 30, 2012,
the defendant filed his reply. (DE 97). In its response, the
government sought leave to submit expert evidence. The district
court granted this application. (DE 98). The government filed
its expert report prior to the hearing which was held on August 10,
2012. (GA 221-47).
At the hearing, the government called Dr. David DeRosa,
Case: 12-3720 Document: 22 Page: 16 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
17/53
8
a professor of financial engineering at Columbia University and
owner of a consulting company that does research into capital
markets. While acknowledging that player skill plays some role in
poker, he disputed Dr. Heebs conclusion that poker was more a game
of skill than of chance. Among other things, he argued that skill
at poker should be defined as winning money, and yet Dr. Heebs
analysis showed that almost all poker players lose money. (GA 256-
58). He also asserted that, under Dr. Heebs analysis, youve got
to play a preposterous number of hands in order to have any
confidence of winning and that, for players who played a smaller
number of hands, chance was always a major factor. (GA 258-59).
As Dr. DeRosa observed, in poker theres no requirement that you
have to play forever. Its not like a game of golf where you have
to play all 18 holes. Its not like a game of tennis where you
have to play three sets. You can drop out any time you want.
(GA 274). Dr. DeRosa raised other challenges to Dr. Heebs
methodology and conclusions that need not be detailed because they
are not at issue on this appeal. (See, e.g., GA 234-36, 239, 260-
63). Dr. Heeb was also present at the hearing, and the court
permitted the two experts to engage in a lengthy dialogue with one
another. (GA 316-55).
On August 13, 2012, DiCristina submitted a supplemental
expert report (GA 358-68), and on August 17, 2012, DiCristina filed
the legislative history for the IGBA at the request of the court
Case: 12-3720 Document: 22 Page: 17 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
18/53
9
(DE 106). On August 17, 2012, the government responded to
DiCristinas supplemental expert report (GA 369-81) and the
defendant replied on August 20, 2012 (GA 382-89).
D. The Memorandum and Order
In his papers, DiCristina contended that the IGBA limits
the types of gambling businesses that are illegal under federal law
to those that not only are illegal under state law but also involve
activities that are similar to the nine games listed in subsection
(b)(2) of the IGBA. DiCristina further contended that to qualify2
as similar to the enumerated activities, the games must be
predominated by chance and be housebanked. He concluded that
because poker is neither, his conduct did not violate the IGBA.
On the other hand, the government argued that the plain
language of the statute does not limit the types of activities that
are prohibited beyond the requirement that the gambling business
violates state gambling law. Further, even assuming that
subsection (b)(2) of the IGBA creates an independent element of the
statute that must be satisfied, poker is gambling as contemplated
by that subsection. Specifically, the government argued that poker
constitutes a game of chance because, while the skill of a player
may influence the outcome of a given hand, the outcome of the bets
that poker players make on the cards is principally governed by
Those games are pool-selling, bookmaking, maintaining2
slot machines, roulette wheels or dice tables, and conductinglotteries, policy, bolita or numbers games.
Case: 12-3720 Document: 22 Page: 18 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
19/53
10
events beyond the bettors control. In this respect, the
government noted, poker shares many similarities with sports
betting, conduct which is explicitly identified as gambling
within the meaning of subsection (b)(2).
On August 21, 2012, the district court issued a 120-page
opinion that granted DiCristinas motion. (SPA 1-120). The court
extensively reviewed the history of the game of poker, the experts
testimony on whether poker is predominately a game of chance or
skill, case law, the legislative history, other reports pertaining
to gambling and other federal gambling statutes. (SPA 11-53, 62-
92).
The district court acknowledged that the Third Circuit
had interpreted the IGBA consistently with the governments
position in United States v. Atiyeh, 402 F.3d 354, 372 (3d Cir.
2005). (SPA 92-94). However, the district court rejected this
decision as not persuasive because the Third Circuit did not
have the benefit of the extensive briefing on the text and history
of the IGBA available to this court. (SPA 93). The district
court also acknowledged that the overwhelming majority of cases
have assumed, without analysis, that the government need only prove
that the business involved gambling as defined by state law, not
that the game operated constituted gambling as defined by the
IGBA. (SPA 94-95). Among the cases that the court identified as
making this assumption was this Courts decision in United States
Case: 12-3720 Document: 22 Page: 19 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
20/53
11
v. Gotti, 459 F.3d 296, 340-42 (2d Cir. 2006). The district court
further acknowledged that IGBA had repeatedly been used to
prosecute defendants for operating games not enumerated in
1955(b)(2), including poker. (SPA 95, 103-04).
The court opined that both the government and the defense
had advanced plausible interpretations of 1955(b)(2) and that
neither interpretation violated the cardinal principle of
statutory construction that a statute ought, upon the whole, to
be so construed that, if it can be prevented, no clause, sentence,
or word shall be superfluous, void, or insignificant. (SPA 98)
(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). The court
further found that the legislative history did not clearly favor
either partys interpretation. (SPA 99-100). Nevertheless,
applying the rule of lenity, the court adopted the defendants
interpretation that 1955(b)(2) was intended to create a federal
definition of gambling. (SPA 100-01).
The court noted that Congresss failure to include poker
and other card games like pinochle, gin rummy, and bridge among
the games listed in 1955(b)(2) was significant given that such
games were so widely played by law-abiding individuals in non-
criminal settings. (SPA 102). The court reasoned that, as a
result of the ambiguities in the federal definition of gambling,
governing criteria must be derived by determining what common
characteristics unifies the games listed in 1955(b)(2) into a
Case: 12-3720 Document: 22 Page: 20 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
21/53
12
cohesive group. (SPA 104-05).
It rejected the defendants contention that a relevant
characteristic of the games listed in 1955(b)(2) was that they
were housebanked, finding no evidence that Congress considered
that factor. (SPA 109). However, relying on the alleged common-
law definition of gambling and on the statutory interpretation
maxim of ejusdem generis, it agreed with the defendants contention
that [i]n order to constitute an illegal gambling business under
the IGBA, as at common law, the business must operate a game that
is predominately a game of chance. (SPA 112).
Finally, the district court agreed with the defendants
expert that poker was predominately a game of skill and held that
the poker played on the defendants premises ... is not gambling
as defined by the IGBA. (SPA 119). The court accordingly ordered
that the second superseding indictment be dismissed and that
DiCristinas conviction be vacated.
Case: 12-3720 Document: 22 Page: 21 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
22/53
13
SUMMARY OF ARGUMENT
The district court erred in granting DiCristinas motion.
The 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 upon its ordinary meaning, i.e., as wagering on an uncertain
outcome. Moreover, even if gambling is defined as a game of
chance, that phrase should be given a broad and nontechnical
meaning as used by this Court in United States v. Gotti, 459 F.3d
296, 340-42 (2d Cir. 2006), which meaning includes poker. That
conclusion is supported by the IGBAs legislative history, the
inclusion of bookmaking as one of the activities expressly covered
by the IGBA and by definitions of gambling in other federal
statutes.
The interpretative aids cited by the district court do
not lead to a contrary result. The rule of lenity is inapplicable
because the statute is not sufficiently ambiguous and because the
courts interpretation does not advance the purposes of the rule of
lenity. The common law is not sufficiently uniform to support the
district courts definition. Finally, the ejusdem generis maxim
cannot properly be applied to 18 U.S.C. 1955(b)(2), and even if
it could, it would not support the district courts interpretation.
Case: 12-3720 Document: 22 Page: 22 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
23/53
14
ARGUMENT
THE DISTRICT COURT ERRED INGRANTING DICRISTINAS MOTION
In the district court, the parties disputed a range of
issues raised by DiCristinas motion, including whether there is a
federal definition of gambling at all under the IGBA and whether
skill predominates over chance at poker. On this appeal, the
government seeks review of whether, even accepting that there is a
federal definition of gambling under the IGBA and assuming for
purposes of this appeal that skill predominates over chance at
poker, poker nevertheless constitutes gambling under the IGBA.
As set forth below, gambling for purposes of the IGBA should simply
mean wagering on an uncertain outcome, and poker should be included
within that definition.
A. Legal Standards
1. Standard of Review
The Court reviews a district courts legal conclusions,
including those interpreting the meaning of a statute, de novo.
See United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009).
2. Statutory Scheme
The IGBA makes it illegal to conduct[], finance[],
manage[], supervise[], direct[], or own[] all or part of an illegal
gambling business. 18 U.S.C. 1955(a). Subsection (b) provides
definitions of the relevant terms:
(b) As used in this section --
Case: 12-3720 Document: 22 Page: 23 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
24/53
15
(1) illegal gambling business means agambling business which --
(i) is a violation of the law of a
State or political subdivision inwhich it is conducted;
(ii) involves five or more personswho conduct, finance, manage,supervise, direct, or own all orpart of such business; and
(iii) has been or remains insubstantially continuous operationfor a period in excess of thirtydays or has a gross revenue of
$2,000 in any single day.
(2) gambling includes but is not limited to pool-selling, bookmaking, maintaining slot machines,roulette wheels or dice tables, and conductinglotteries, policy, bolita or numbers games, orselling chances therein.
(3) State means any State of the United States,the District of Columbia, the Commonwealth ofPuerto Rico, and any territory or possession of theUnited States.
Subsection (e) excludes from the statutes prohibitions any bingo
game, lottery, or similar game of chance conducted by a tax-exempt
organization (emphasis added).
New York Penal Law 225.00(2) defines gambling as the
staking or risking of something of value upon the outcome of a
contest of chance ... upon an agreement or understanding that [the
individual] will receive something of value in the event of a
certain outcome. A contest of chance is defined as a game ...
in which the outcome depends in a material degree upon an element
of chance, notwithstanding that skill of the contestants may also
Case: 12-3720 Document: 22 Page: 24 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
25/53
16
be a factor therein. N.Y. Penal Law 225.00(1). As the district
court recognized, poker qualifies as a contest of chance under
these definitions. (SPA 6-7) (citing New York state cases).
B. 1955(b)(2) Does Not Define Gamblingfor Purposes of the IGBA
The district court looked to 1955(b)(2) to establish a
federal definition of gambling for purposes of the IGBA based upon
the common characteristics that unif[y] the games listed in
1955(b)(2) into a cohesive group. (SPA 104-05). That
interpretation of 1955(b)(2) is untenable. Subsection (b)(2)
merely contains a non-exhaustive list of examples of gambling
activities introduced by the phrase includes but is not limited
to. This language contrasts with the definition of illegal
gambling business in 1955(b)(1) and the definition of State in
1955(b)(3) both of which are prefaced by the verb means and
set forth the characteristics of the term they are defining so as
to exclude activities or entities that do not have the stated
characteristics.
Moreover, if Congress had intended to define gambling in
1955(b)(2) to mean a game of chance or a game where chance
predominates over skill, it could easily have made such a
requirement express. Significantly, 1955(e) expressly refers to
game[s] of chance conducted by charities in creating exceptions
to the statute. Thus, Congress plainly knew how to include such
language in the statute when it wished to do so.
Case: 12-3720 Document: 22 Page: 25 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
26/53
17
For these reasons, 1955(b)(2) should not be interpreted
to create a definition of gambling for the IGBA. To be sure, the
examples listed in 1955(b)(2) are relevant to the meaning of
gambling for purposes of the IGBA because no definition of gambling
that would exclude any of them could be correct. But they are
merely examples of gambling and should not be read to exclude other
activities from the reach of the statute.3
Notably, the only court of appeals that has directly
addressed the issue rejected the defendants argument that
1955(b)(2) creates a federal definition of gambling that
precludes prosecution for an activity not listed in that
subsection. See United States v. Atiyeh, 402 F.3d 354, 372 (3d
Cir. 2005) (holding that becoming a custodian of funds that were
wagered or to be wagered, which was illegal under Pennsylvania law,
could be prosecuted as an illegal gambling business under the
IGBA). Other courts, including this one, have upheld convictions
under the IGBA for gambling activities not listed in 1955(b)(2),
including poker. See, e.g., United States v. Gotti, 459 F.3d 296
(2d Cir. 2006) (operating electronic joker-poker machines);
United States v. Rieger, 942 F.2d 230 (3d Cir. 1990) (operating
high stakes poker operation); United States v. Tarter, 522 F.2d 520
As explained in the section on the IGBAs legislative3
history, infra, these examples were included in the statute becausethey were games that Congress believed provided the most lucrativesources of gambling revenue for organized crime at the time thestatute was passed.
Case: 12-3720 Document: 22 Page: 26 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
27/53
18
(6th Cir. 1975) (same); United States v. Angiulo, 897 F.2d 1169
(1st Cir. 1990) (receiving profits from a high stakes poker
operation); United States v. Reitano, 862 F.2d 982 (2d Cir. 1988)
(rough-and-tumble blackjack); United States v. Useni, 516 F.3d 634
(7th Cir. 2008) (bingo). Indeed, the district court cited no case
interpreting this 40-year-old statute, nor is the government aware
of any, in which a court held that the government failed to prove
an offense under the IGBA because the activity in question did not
satisfy a purported definition of gambling in 1955(b)(2).4
C. The District Courts Definition ofGambling Is Unduly Narrow
Where, as here, a term is not defined in a statute, it
should be given its ordinary meaning. Taniguchi v. Kan Pacific
Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012). As the district court
noted (SPA 60-61), dictionaries give varying definitions of the
terms gamble and gambling. Some dictionaries broadly define
gambling as [t]he act of risking something of value, esp. money,
for a chance to win a prize. Blacks Law Dictionary 748 (9th ed.
The district court cited two cases that implied that the4
government must prove that the business ran games that also
constituted gambling as defined by the IGBA. (SPA 95) (citingUnited States v. Hunter, 478 F.2d 1019, 1021 n.2 (7th Cir. 1973),and United States v. Kaczowski, 114 F. Supp. 2d 143, 152 (W.D.N.Y.2000)) (emphasis added). However, neither of these cases providedany analysis of the issue, and, as the district court itselfapparently recognized, neither case actually held that thegovernment could not show a violation of the IGBA unless theconduct violated a purported definition of gambling in 1955(b)(2).
Case: 12-3720 Document: 22 Page: 27 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
28/53
19
2009); see also, e.g., Websters New Collegiate Dictionary 471
(1976) (defining gamble as to bet on an uncertain outcome or
to play a game for (as money or property).). Other dictionaries,
however, also include as one alternative definition to play at any
game of chance for stakes. The Random House College Dictionary
542 (rev. ed. 1980).5
However, it would read too much into the phrase game of
chance in some dictionaries to interpret it with the kind of
mathematical precision used by Dr. Heeb, in which the respective
roles of chance and skill are determined by conducting
sophisticated statistical analyses of voluminous data. A game of
chance can simply mean a game where chance plays some role in the
outcome, whether or not it predominates over skill. Indeed,
several state statutory definitions are consistent with that
understanding. For example, as noted before, New York defines a
contest of chance as a game ... in which the outcome depends in
a material degree upon an element of chance, notwithstanding that
Dictionaries that the government has found that predate5
the enactment of the IGBA do not differ materially from the onescited by the district court. See American Heritage Dictionary of
the English Language 294 (1st ed. 1969) (defining gamble as 1.a.To wager; bet money on the outcome of a game, contest or otherevent. b. To play a game of chance.); 1 Websters Third NewInternational Dictionary 932 (1966) (defining gamble as 1a: toplay a game of chance for money or other stakes b: to wager moneyor other stakes on an uncertain outcome (as of a horse race or anathletic game) and gambling as 1: the act or practice ofbetting: the act of playing a game and consciously risking money orother stakes on its outcome).
Case: 12-3720 Document: 22 Page: 28 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
29/53
20
skill of the contestants may also be a factor therein. N.Y. Penal
Law 225.00(1). As the district court recognized, that definition
includes poker. (SPA 6-7) (citing cases). Other state statutes
have similar definitions of game of chance or otherwise define6
gambling to include activities that involve some degree of
chance, whether or not chance plays a predominant role in the
outcome.7
This broader, nontechnical meaning of game of chance is
consistent with this Courts decision in Gotti. In that case, a
defendant challenged his conviction under 1955 for conducting a
gambling operation using electronic joker-poker machines.
Specifically, the defendant contended that joker-poker machines
were not illegal gambling devices under New York law because, inter
alia, the games in question were games of skill rather than
See, e.g., Haw. Rev. Stat. 712-1220(3) (Contest of6
chance means any contest, game, gaming scheme, or gaming device inwhich the outcome depends in a material degree upon an element ofchance, notwithstanding that skill of the contestants may also bea factor therein.); N.J. Stat. 2C:37-1(a) (similar); Or. Rev.Stat. 167.117(6) (similar).
See, e.g., Ariz. Rev. Stat. 13-3301(iv)(4) (Gambling7
or gamble means one act of risking or giving something of value
for the opportunity to obtain a benefit from a game or contest ofchance or skill or a future contingent event ...); 720 Ill. Comp.Stat. 5/28-1(a)(1) (A person commits gambling when he ...[p]lays a game of chance or skill for money or other thing of value...); La. Rev. Stat. 14:90(A)(1)(a) (Gambling is theintentional conducting, or directly assisting in the conducting, asa business, of any game, contest, lottery, or contrivance wherebya person risks the loss of anything of value in order to realize aprofit.).
Case: 12-3720 Document: 22 Page: 29 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
30/53
21
contests of chance. 459 F.3d at 342. In rejecting this argument,
the Court observed:
[A] contest of chance encompasses games inwhich the skill of the contestants may play arole, as long as the outcome depends in amaterial degree on chance. [Defendant]concedes that the games in question had thetheme of poker, and he has not contended inhis brief that chance does not play a materialrole in the outcome of a poker game.
Id. Thus, while the Gotti Court did not specifically address the
meaning of gambling under the IGBA, it did uphold a conviction
under 1955 for engaging in a contest of chance in the face of
the defendants claim that the outcome of the game was determined
by skill rather than chance, ruling that it was sufficient that
chance played a material role in the outcome.
For the reasons set forth below, defining gambling to
mean, in substance, betting on an uncertain outcome would be most
consistent with the IGBAs purpose and legislative history. Cf.
Town of Mount Pleasant v. Chimento, 2012 WL 5870814, *5 (S.C. Nov.
21, 2012) (under South Carolina law, the meaning of gambling
depends not on the skill/chance ratio, but on the wager.). But
even if the alternative, game of chance definition were adopted,
it should not have a narrower or more technical meaning than this
Court applied in Gotti. Using that definition, poker would also
qualify as gambling. (See SPA 61 (citing Rogets International
Thesaurus 514.7 (3d ed. 1962) (listing gamble, game of chance
and poker as synonyms along with games specifically enumerated in
Case: 12-3720 Document: 22 Page: 30 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
31/53
22
1955(b)(2)). Indeed, even Dr. Heeb would probably agree. (See
GA 153 (Dr. Heeb testifies that poker definitely is a game which
has an element of chance.)).
1. Legislative History
The district court conceded that nothing in the
legislative history indicates that Congress ever considered the
issue of chance predominating over skill in determining whether or
not a particular game constitutes gambling. (SPA 69). The court
also acknowledged that the legislative history is devoid of a
rationale as to why Congress would include a federal definition of
gambling in Section 1955(b)(2). (SPA 67). Further, as the court
explained, the concerns of members of Congress who questioned
whether the statute would reach a friendly poker game were
soothe[d] by others not on the basis that poker is not gambling,
but because a friendly poker game would not meet the other
requirements of the statute. (SPA 73-74).
Moreover, the evolution of the language of 1955(b)(2)
suggests that Congress intentionally elected not to create a narrow
definition of gambling. An early version of the bill stated that
illegal gambling business means betting, lottery, or numbers
activity, which among other requirements, violates state law.
(SPA 99 (citing Illegal Gambling Business Control Act of 1969,
S. 2022, 91st Cong., 1st Sess. 201)). The bill that was finally
Case: 12-3720 Document: 22 Page: 31 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
32/53
23
enacted tellingly changed means to includes but is not limited
to.
Beyond these particular features, however, the
legislative history, viewed in a broader context, indicates that
Congress intended the IGBA to assist in the enforcement of state
gambling laws. Further, Congress was especially concerned with
combating gambling operations conducted by organized crime.
Neither of these interests would be served by interpreting the IGBA
to create a narrow definition of gambling that would exclude a
substantial number of activities that are commonly classified
gambling by states, including poker.
The IGBA, part of the Organized Crime Control Act, was
intended to address Congresss finding that, where a state had
outlawed a particular form of gambling, organized crime had
developed complex channels to capitalize on the opportunity
presented. United States v. Sacco, 491 F.2d 995, 1000 (9th Cir.
1974) (discussing legislative history). In enacting the IGBA,
Congress made the following findings:
(1) organized crime in the United States is ahighly sophisticated, diversified, andwidespread activity that annually drainsbillions of dollars from America's economy byunlawful conduct and the illegal use of force,fraud, and corruption; (2) organized crimederives a major portion of its power throughmoney obtained from such illegal endeavors assyndicated gambling, loan sharking, the theftand fencing of property, the importation anddistribution of narcotics and other dangerousdrugs, and other forms of social exploitation;
Case: 12-3720 Document: 22 Page: 32 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
33/53
24
(3) this money and power are increasingly usedto infiltrate and corrupt legitimate businessand labor unions and to subvert and corruptour democratic processes; (4) organized crime
activities in the United States weaken thestability of the Nation's economic system,harm innocent investors and competingorganizations, interfere with freecompetition, seriously burden interstate andforeign commerce, threaten the domesticsecurity, and undermine the general welfare ofthe Nation and its citizens; . . .
United States v. Aquino, 336 F. Supp. 737, 739 (E.D. Mich. 1972)
(quoting Pub. L. No. 91-452, Oct. 15, 1970, 84 Stat. 922).
The IGBA was designed to aid the enforcement of state
law where the state had identified the gambling business as
illegal while at the same time exempt[ing] from the federal
statute the operators of gambling businesses that are not contrary
to a states public policy on gambling. United States v. Farris,
624 F.2d 890, 892, 895 (9th Cir. 1980).
The statements of the sponsors of the bill during
congressional debates evidence this essential purpose. Senator
Allott stated that the purpose of the statute is simply to make
the Federal Government a more effective member of the established
State-Federal law enforcement partnership which has long been
waging a common war on organized crime and illegal gambling. 116
Cong. Rec. 604 (daily ed. Jan. 21, 1970) (statement of Sen.
Allott). Additionally, Senator Hruska was among many Senators who
referenced President Nixons April 23, 1969 message on organized
crime during debate on the Senate floor. President Nixon
Case: 12-3720 Document: 22 Page: 33 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
34/53
25
characterized the legislation as giving the Attorney General broad
latitude to assist local and state government in cracking down on
illegal gambling, the wellspring of organized crimes reservoir.
See 116 Cong. Rec. 601 (daily ed. Jan. 21, 1970) (statement of Sen.
Hruska). Senator McClellan, stated during discussion on the floor
that [the IGBA] would give the Federal Government two new means to
aid the States in combating large-scale gambling. See 116 Cong.
Rec. 591 (daily ed. Jan. 21, 1970) (statement of Sen. McClellan).
During a House Judiciary Committee hearing, Attorney General
Mitchell submitted a Department of Justice memorandum that stressed
that the IGBA does not proscribe gambling which is legitimate
under state law, nor does it prohibit lotteries and bingo games
conducted for charitable purposes. The federal proposal will not
interfere with a States right to regulate the conduct of citizens
within its jurisdiction. Hearing on S.30 and Related Bills before
Subcomm. No. 5 of the H. Comm. on the Judiciary, 170, 91st Congress
(2d Session) (May 21, 1970) (Statement of Attorney General
Mitchell).
Notwithstanding the federal goal of supplementing state
gambling enforcement efforts, the federal definition of gambling
adopted by the district court would render the statute inapplicable
to many gambling businesses that are illegal under state law.
Further, the district courts specific ruling excluding poker from
the coverage of the IGBA would render the federal definition of
Case: 12-3720 Document: 22 Page: 34 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
35/53
26
gambling inconsistent in this respect with the laws of numerous
states that have either legislatively or judicially classified8 9
poker as a form of illegal gambling.
The district court placed great emphasis on the fact that
1955(b)(2) does not include poker in the list of examples of
gambling. (SPA 102-03). But this omission is readily explained by
the statutes principal focus on addressing gambling activities
See, e.g., Ark. Code 5-66-112 (prohibiting card games,8including poker), Cal. Pen. Code 337j(e)(1) (including poker indefinition of controlled game, which is unlawful to operate withouta license); Conn. Gen Stat. 53-278a(2) (including poker indefinition of gambling); Fla. Stat. 849.085(2)(a) (gambling onpoker not a crime when played for penny ante); Idaho Const. ArtIII 20(2) (state may not permit casino gambling, includingpoker); Idaho Code 18-3801 (including poker as gambling); IowaCode 99B.11(3) (tournament exemption to gambling statute does notapply to poker); Ohio Revised Code 2915.01(D) and 2915.02(A)(2)(defining gambling to include poker, craps [or] roulette); Okla.
Stat. 21 941 (poker included in definition of gambling); Or. Rev.Stat. 167.117(4) (poker a proscribed casino game); Tenn. CodeAnn. 39-17-501, Sentencing Commission Comments (defininggambling to include poker); Wis. Const. Art IV, 24(6)(c) (pokeris not exempt from state prohibition on gambling).
See, e.g., Garrett v. Alabama, 963 So. 2d 700 (Ala. Crim.9
App. 2007) (poker covered by state gambling statute); State v.Duci, 151 Ariz. 263 (1986) (same); People v. Mitchell, 444 N.E.2d1153, 1155 (Ill. App. Ct. 1983) (same); State v. Schlein, 253 Kan.205, 305 (1993) (same); Emerson v. Townsend, 73 Md. 224 (1890)(money loaned for poker was loaned for gambling); People v.
Turner, 629 N.Y.S. 2d 661, 662 (N.Y. Crim. Ct. 1995) (poker coveredby state gambling statute); Joker Club LLC v. Hardid, 643 S.E.2d626, 630-31 (N.C. Ct. App. 2007) (same); Garono v. State, 524N.E.2d 496, 500 (Ohio 1988) (same); Commonwealth v. Dent, 992 A.2d190, 196 (Pa. Super. 2010) (same); In re Advisory Opinion to theGovernor, 856 A.2d 320, 328-329 (R.I. 2004) (same); Town of Mt.Pleasant v. Chimento, 2012 WL 5870814, *5 (S.C. Nov. 21, 2012)(same); State ex rel Schillberg v. Barnet, 488 P.2d 255, 258 (Wash.1971) (same).
Case: 12-3720 Document: 22 Page: 35 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
36/53
27
that funded organized crime. See Ianelli v. United States, 420
U.S. 770, 787-88 (1975) (IGBA was enacted to give the Federal
Government a new substantive weapon, a weapon which [would] strike
at organized crimes principal source of revenue: illegal
gambling.) (quoting S. Rep. No. 91-617 at 71 (1969)).
When Congress enacted the IGBA in 1970, organized crime
derived its illegal gambling revenue primarily from lotteries, dice
games and wagering on the outcomes of horse races and sporting
events. See 116 Cong. Rec. 590 (daily ed. Jan. 21, 1970)
(statement of Sen. McClellan) (identifying numbers, betting on
horse racing, sporting events, lotteries, dice games, and illegal
casinos as important forms of syndicated gambling); see also
Organized Crime Control: Hearings Before Subcomm. No. 5 of the
H. Comm. on the Judiciary, 91st Cong. 105 (1970) (Statement of Sen.
McClellan) (The directors and managers of the major numbers,
booking, and sports gambling operations across the country are, of
course, the same Mafia leaders who engage in extortion, labor
racketeering, corruption of legitimate business, and the panoply of
other illegitimate enterprises which support organized crime.);
Presidents Commission on Law Enforcement & Administration of
Justice, The Challenge of Crime in a Free Society 188 (1967)
(noting that organized crime profited from lotteries, such as
numbers or bolita, to off-track horse betting, bets on sporting
events, large dice games and illegal casinos.). Thus, in
Case: 12-3720 Document: 22 Page: 36 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
37/53
28
1955(b)(2), Congress enumerated the gambling activities that
presented law enforcement with its most pressing challenges related
to organized crime at that time.
By contrast, poker was far less popular in 1970, when the
IGBA was enacted, than it is today. Pokers surge in popularity,
often called the poker boom, is a relatively recent phenomenon
that reached its apex between 2003 and 2006. Anthony Holden,
Bigger Deal: A Year Inside the Poker Boom 1 (2007). The release of
the popular film Rounders in 1998 garnered some public exposure and
interest in poker, but by far the most important catalyst for the
poker boom was the emergence of the Internet, which allowed for
online poker-playing, and cable television, which frequently
broadcast poker tournaments. Id. at 1, 10. Both forms of media
facilitated the explosion of pokers popularity within a matter of
years. The World Series of Poker, perhaps the most prestigious
poker tournament in the United States, provides a useful indication
of the rapid growth in pokers popularity. When the tournament
began in 1978, 42 players participated; by 1988, this number had
grown to 167. Id. at 1. In 2006, by contrast, 8,773 players
entered the main event alone, and more than 44,500 players
participated in the tournament at large. Id.
Not surprisingly, as the district court observed, in the
pre-poker-boom years when the IGBA was being enacted, Mafia
involvement in poker games was limited. (SPA 73) (citing United
Case: 12-3720 Document: 22 Page: 37 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
38/53
29
States v. Roselli, 432 F.2d 879, 886 n.8 (9th Cir. 1970) (noting
that poker is not traditionally associated with organized
crime)). However, that has changed. The surge in pokers
popularity has created lucrative opportunities for organized crime
syndicates and other criminal actors. Indeed, the district court
itself detailed organized crimes growing involvement in poker
games following the enactment of the IGBA. (SPA 76-77).
That Congress in 1970 did not foresee the poker boom or
the increased revenue the game now provides to organized crime does
not mean that poker is not covered by the IGBA. A statute can
reach beyond the specific situation that Congress envisioned in
drafting it if the statutory language is broad enough. See Smith
v. United States, 508 U.S. 223, 239 (1993) (citing United States v.
Harris, 959 F.2d 246, 262 (D.C. Cir. 1992)); Union Bank v. Wolas,
502 U.S. 151, 157-58 (1991). It is thus especially significant
that Congress deliberately chose open-ended language in drafting
1955(b)(2) when it provided that gambling includes but is not
limited to the enumerated activities. Congress could not have
intended merely to shunt organized crimes revenue raising into
poker and other games not expressly mentioned in 1955(b)(2).
2. Sports Betting
The district courts definition of gambling as an
activity in which chance predominates over skill is also flawed
because it would exclude an activity that clearly is covered by the
Case: 12-3720 Document: 22 Page: 38 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
39/53
30
IGBA. In particular, sports betting (bookmaking), one of the
gambling activities enumerated by 1955(b)(2), involves
substantial (not slight) skill, including the exercise of [a]
bettors judgment in trying to ... figure [out] the point spreads.
Office of the Attorney General of the State of New York, Formal
Opinion No. 84-F1, N.Y. Op. Atty. Gen. 11 (1984). Sports bettors
can employ superior knowledge of the games, teams and players in
order to exploit odds that do not reflect the true likelihoods of
the possible outcomes. See Garrett Downing, Career Sports Bettors
Battle the Betting Line, Las Vegas Sun, Mar. 30, 2009 (available
at http://www.lasvegassun.com/news/2009/mar/30/career-sports-
bettors-battle-betting-line/) (describing research and analysis
conducted by professional sports bettors). Indeed, academics who
have argued that poker should not be treated as a form of illegal
gambling on the ground that it is a game of skill make the same
argument regarding sports betting. See, e.g., Scott Van Voorhis,
Profs Back Online Poker,Boston Herald, Oct. 22, 2007 (available
at 2007 WLNR 20766706) (Like [Professor Charles] Nesson,
[Professor Alan] Dershowitz contends that, under the same game of
skill theory, online sports betting should be legalized....
Dershowitz said, It is ridiculous to call either poker or sports
betting a game of chance.).
Case: 12-3720 Document: 22 Page: 39 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
40/53
31
Notably, Dr. Heeb cited the ability to make a living
playing poker as a basis for concluding that skill predominated
over chance in that game:
[F]or a number of different independentreasons, I concluded that skill predominatesover chance in poker. I approached theproblem with three different exercises.
The first is an observation, which I havealso made as a player, and that is that agreat many people make a living playing poker.And its my opinion that a game in which a
person can make a living reliably based ontheir skills, is a game of skill. And so thatobservation is independent foundation for my
opinion that skill[] predominates over chancein poker, and I confirmed that in the datathat I analyzed.
(GA 113) (emphasis added); (see also GA 19 (Dr. Heeb states that
the ability to make a living playing poker alone is an independent
foundation for my opinion that skill predominates over chance in
poker.)). By this criterion, however, sports betting is also an
activity in which skill predominates over chance, since it is
beyond dispute that a skilled bettor can reliably make a living in
sports betting. See, e.g., The Gambler, 60 Minutes (CBS
television broadcast Jan. 16, 2011) (video available at
http://www.cbsnews.com/video/watch/?id=7253011n, transcript
available at http://www.cbsnews.com/stories/2011/01/13/60minutes/
main7243443.shtml) (profiling professional gambler Billy Walters,
Case: 12-3720 Document: 22 Page: 40 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
41/53
32
who has amassed a large fortune over decades of successfully
betting on sports events).
The district courts effort to distinguish the respective
roles of chance and skill in sports betting and poker was
unconvincing. (SPA 110-11). The court relied upon the notion that
poker players strategy can influence a poker hands outcome
whereas the outcome of a sporting event is wholly outside of a
bettors control. (Id.). This distinction is faulty. While a
sports bettor cannot (legally) influence the outcome of a game,
sports bettors can and do influence the betting line or point
spread in order to improve their odds of making a successful bet.
Specifically, a gambler intending to make a large bet on one team
may first place one or more smaller, strategic bets on the other
team to move the betting line and make it more favorable for the
ultimate intended bet. See The Gambler, supra (explaining how a
gambler can bet[] on both sides to move the line); Garrett
Downing, supra (noting that professional sports bettors try to
move the betting lines to improve their odds). This technique is
analogous to bluffing, raising or folding in poker, which are
means by which skillful poker players can influence the outcome of
a hand independently of chance.
In any event, the distinction is simply not relevant to
the district courts ultimate inquiry of whether skill predominates
over chance. The inability to influence the outcome of an event is
Case: 12-3720 Document: 22 Page: 41 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
42/53
33
not in any way inconsistent with skills being required to predict
the outcome. For example, no one would dispute that substantial
skill is involved in a political pollsters predicting the outcome
of an election or a stock analysts predicting the future
profitability of a publically-owned company. The district courts
definition of gambling would therefore also exclude sports betting
or bookmaking, in clear contradiction to the plain language of
1955(b)(2).
3. Other Federal Statutes
Other federal statutes are also relevant to determining
the meaning of gambling. It is true that subsequent
congressional enactments have a limited value in determining the
intent of an earlier Congress. See Jones v. United States, 526
U.S. 227, 238 (1999); United States v. Mine Workers, 330 U.S. 258,
28182 (1947). However, the definition of gambling under other
statutes is relevant to illuminating the commonly-understood
meaning of that term in a statute where, as here, it is not
defined.
As the district court noted (SPA 89-91), in 1996,
Congress passed the National Gambling Impact Study Commission Act
(NGISC) to set up a commission to study the legalization of
gambling in the United States. See Pub. L. No. 104-169, 110 Stat.
1482 (1996) (codified at 18 U.S.C. 1955 notes). Although the
NGISC did not amend the text of the IGBA itself, Congress directed
Case: 12-3720 Document: 22 Page: 42 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
43/53
34
that the NGISC be incorporated into the notes following 1955.
See id.
The NGISC defines gambling for purposes of that Act as
any legalized form of wagering or bettingconducted in a casino, on a riverboat, on anIndian reservation, or at any other locationunder the jurisdiction of the United States.Such term includes any casino game, parimutuelbetting, sports-related betting, lottery,pull-tab game, slot machine, any type of videogaming, computerized wagering or bettingactivities (including any such activityconducted over the Internet), and
philanthropic or charitable gaming activities.
Id. 8(1). This definition includes poker, since poker involves
wagering or betting and is conducted at casinos and since it is
also a wagering or betting activit[y] ... conducted over the
Internet. The district court dismissed the significance of the
NGISC, commenting that the NGISC created its own definition
[r]ather than incorporating the definition of gambling already
provided by the IGBA. (SPA 90). But this assertion rests on the
district courts mistaken premise that 1955(b)(2) contains a
definition of gambling.
Another federal statute that includes poker in the
definition of gambling is the Indian Gambling Regulatory Act
(IGRA), 25 U.S.C. 2701, et seq., a statute that regulates the
operation of gaming by Native American tribes. That act defines
class II gaming, which is permitted under certain specified
conditions to include card games along games such as bingo and
Case: 12-3720 Document: 22 Page: 43 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
44/53
35
lotto. See 25 U.S.C. 2703(7)(A)(ii). The district court
correctly conceded that class II card games under the IGRA would
include poker. (SPA 87).
C. The Interpretative Aids Invoked by theDistrict Court Do Not Support its Definitionof Gambling
1. The Rule of Lenity
The district court invoked the rule of lenity in agreeing
with DiCristinas argument that 1955(b)(2) created a federal
definition of gambling that was narrower than the state law
definition. (SPA 100-01). [T]he rule of lenity only applies if,
after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute.
Barber v. Thomas, 130 S. Ct. 2499, 2508 (2010) (internal quotations
omitted); see also DePierre v. United States, 131 S. Ct. 2225,
2237 (2011) (refusing to apply rule of lenity where statute was not
crystalline but the statutory text allows us to make far more
than a guess as to what Congress intended) (internal quotation
marks and citation omitted); Abbott v. United States, 131 S. Ct.
18, 31 n.9 (2010) (Although the clause might have been more
meticulously drafted, the grammatical possibility of a defendants
interpretation does not command a resort to the rule of lenity if
the interpretation proffered by the defendant reflects an
implausible reading of the congressional purpose.) (internal
quotation marks and citation omitted). In this case, the district
Case: 12-3720 Document: 22 Page: 44 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
45/53
36
court erred by resorting to the rule of lenity because there was no
grievous ambiguity in the statute such that after seizing upon
everything from which aid can be derived, the Court can make no
more than a guess as to what Congress intended. Muscarello v.
United States, 524 U.S. 125, 138 (1998) (citations and internal
quotation marks omitted).
Moreover, the district courts interpretation of the
statute does not advance the purposes of the rule of lenity.
Application of the rule of lenity ensures that criminal statutes
will provide fair warning concerning conduct rendered illegal and
strikes the appropriate balance between the legislature, the
prosecutor, and the court in defining criminal liability.
Liparota v. United States, 471 U.S. 419, 427 (1985); see also
United States v. Velastegui, 199 F.3d 590, 593 (1999) (The rule of
lenity, a manifestation of the fair warning requirement, ensures
fair warning by so resolving ambiguity in a criminal statute as to
apply it only to conduct clearly covered.) (quoting United States
v. Lanier, 520 U.S. 259, 266 (1997)).
A reasonable person, looking at the plain language of
1955 in a commonsense way, would have fair warning that the
statute applies to poker and other games that are commonly
understood as gambling. Indeed, the requirement in 1955(b)(1)(i)
that the illegal gambling business violate state law eliminates
Case: 12-3720 Document: 22 Page: 45 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
46/53
37
any concern that the IGBA could be applied to punish conduct that
the defendant believed to be lawful.
By contrast, the district courts interpretation of the
statute requires highly specialized knowledge and expertise that
could not be applied by ordinary citizens seeking to determine the
legality of their conduct. The district court reached its
interpretation of the statute only after reviewing lengthy,
technical reports and hearing expert testimony about a study of 415
million hands of Texas Holdem poker. The courts summary of this
material, complete with graphs and charts, comprises more than 30
pages of its opinion. (See SPA 14-47). Even accepting arguendo
that the court correctly concluded that skill predominates over
chance in Texas Holdem poker, it did not address other varieties
of poker, much less completely different games such as baccarat,
blackjack and pinochle. Presumably, the legality of each of these
games would have to be determined on a case-by-case basis, through
an analysis similar to the one conducted by Dr. Heeb. This would
obviously be well beyond the capabilities of, for example, someone
who was trying to determine what games could legally be operated by
a neighborhood social club.10
A further element of uncertainty in this approach was10
illustrated by the disagreement between Dr. Heeb and Dr. DeRosaabout how many hands of poker provided the relevant sample fordetermining whether skill predominated over chance. Dr. Heebsanalysis showed that it required hundreds of hands of poker formore skilled players reliably to prevail over less skilled players.But as Dr. DeRosa noted, there is no rule in poker that a player
Case: 12-3720 Document: 22 Page: 46 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
47/53
38
At bottom, the district courts decision does not
strike[] the appropriate balance between the legislature, the
prosecutor, and the court in defining criminal liability.
Liparota, 471 U.S. at 427. The type of evidence and arguments on
which the district court relied should be directed to Congress or
state legislatures in deciding whether to create an exception to
the gambling laws for games of skill and what games should qualify
under such an exception. They should not be invoked to rewrite a
statute that Congress has already enacted.
2. Common Law
The district court asserted that common law supported its
definition of gambling, because [m]ost states find that an
activity is ... illegal gambling if a person risks something of
value on an activity predominantly determined by chance for the
opportunity to win something of greater value than he or she
risked. (SPA 62) (quoting Anthony Cabot & Robert Hannum, Poker:
Public Policy, Law, Mathematics, and the Future of an American
Tradition, 22 T.M. Cooley L. Rev. 443, 445 (2005)). But as noted
before, some states, including New York, define gambling as an
activity where chance merely plays a material role in the outcome,
whether or not it is predominant. See nn. 6 & 7 supra. Other
states also define gambling in ways that do not depend upon the
must play a minimum number of hands. (GA 258-59, 274). Andnothing would stop an unskilled player from leaving a game afterfortuitously winning a large pot.
Case: 12-3720 Document: 22 Page: 47 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
48/53
39
degree of chance or skill involved. See Town of Mount Pleasant,
2012 WL 5870814, at *5 (under South Carolina statute, the
definition of gambling is concerned with wagering regardless of
the skill involved in the game wagered upon.).
Moreover, throughout its history, poker has commonly been
understood to constitute a form of gambling. The game appeared in
roughly its modern form during the early nineteenth century in New
Orleans, apparently as a derivative of the French game poque. See
James McManus, Cowboys Full: The Story of Poker 51 (2009). State
legislatures across the country passed a wave of anti-gambling laws
at around the same time, and these laws invariably prohibited poker
along with other forms of gambling. Id. at 83-84. Poker is
described as gambling in a variety of contexts in reported cases
dating back to the 1800s. The historical perception of poker as11
a form of gambling persists. The Merriam-Webster online dictionary
defines poker, in relevant part, as any of several card games in
which a player bets that the value of his or her hand is greater
than that of the hands held by others... Merriam-Webster Online
See, e.g., Utsler v. Territory, 10 Okla. 463 (1900) (The11witness Fisher also testified that he saw gambling carried on inthe room with cards, being known as stud poker, and he alsotestified that liquor was sold in the same room.); In re SellingsEstate, 17 N.Y. St. Rep. 833 (1888) (The proof submitted by thepetitioner also shows the respondent Joseph Selling to be a man ofutterly worthless and irresponsible character; that he is aprofessional gambler, know[n] as Poker Joe.... ).
Case: 12-3720 Document: 22 Page: 48 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
49/53
40
Dictionary (July 27, 2012) (available at http://www.merriam-
webster.com/dictionary/poker?show=1&t=1343184416) (emphasis added).
Notably, the district court did not identify one state,
nor is the government aware of any, in which poker has been held
not to constitute gambling because it is a game in which skill
predominates over chance. As noted before, poker is treated as a
form of illegal gambling under the laws of virtually every state.
See nn. 8 & 9 supra. Indeed, in district court, DiCristina
tellingly resorted to citing decisions of foreign courts. (See
DE 108 at 1-2). However, American common law does not support the
district courts decision.
3. Ejusdem Generis
The district court also erred in relying on the statutory
maxim of ejusdem generis to support its interpretation of
1955(b)(2). Ejusdem generis limits general terms [that] follow
specific ones to matters similar to those specified. CSX Transp.,
Inc. v. Alabama Dept. of Revenue, 131 S. Ct. 1101, 1113 (2011)
(alteration in original, internal quotation marks and citations
omitted). For example, ejusdem generis could be applied to
interpret the meaning of equipment in the statutory phrase
fishing rods, nets, hooks, bobbers, sinkers, and other
equipment. Id. (quoting United States v. Aguilar, 515 U.S. 593,
615 (1995) (Scalia, J., concurring in part and dissenting in
Case: 12-3720 Document: 22 Page: 49 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
50/53
41
part)). Courts typically use ejusdem generis to ensure that a
general word will not render specific words meaningless. Id.
Under these principles, ejusdem generis does not apply to
1955(b)(2). In that provision, gambling is not a general
catchall term that follows a list of specific terms. Rather,
1955(b)(2) provides that gambling includes but is not limited
to the identified activities, thus indicating that the specific
terms are non-exhaustive and are merely illustrations of things
that fall into the general category. See United States v. Migi,
329 F.3d 1085, 1088-89 (9th Cir. 2003) (An application of ejusdem
generis would narrow Congresss definition.... In addition, we
need not apply ejusdem generis because Congress modified its list
of examples with the phrase including, but not limited to.);
Cooper Distrib. Co. v. Amana Refrig., Inc., 63 F.3d 262, 280 (3d
Cir. 1995) (Alito, J.) ([T]he rule of ejusdem generis applies only
if the provision in question does not express a contrary intent.
Thus, since the phrase including, but not limited to plainly
expresses a contrary intent, the doctrine of ejusdem generis is
inapplicable.) (citation omitted); Ramirez v. City Demonstration
Agency, 549 F.2d 97, 104 (9th Cir. 1976) ([T]he phrase including
but not limited to, [is] one that is often used to mitigate the
sometimes unfortunate results of rigid application of the ejusdem
generis rule.); see also City of New York v. Permanent Mission of
India to United Nations, 618 F.3d 172, 183-85 (2d Cir. 2010).
Case: 12-3720 Document: 22 Page: 50 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
51/53
42
Moreover, because there can be no dispute that Congress intended
activities other than the nine listed examples to constitute
gambling, interpreting the statute to include poker would not
render the specific terms in 1955(b)(2) meaningless.
Moreover, even if ejusdem generis did apply to
1955(b)(2), the district court failed to offer a compelling
reason why it did not adopt a broader definition that would be
consistent with the IGBAs plain language and legislative history.
For example, the nine activities identified in 1955(b)(2) all
involve the wagering of money. This broader common attribute both
identifies a meaningful characteristic common to the list and
preserves the prevailing meaning of the term gambling. Thus,
this Court should reject the district courts narrow and incorrect
application of ejusdem generisand the resulting interpretation of
the IGBA that gambling activity under 1955(b)(2) must involve
a game where chance predominates over skill. See Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 225-26 (2008) (declining to adopt
more limited statutory interpretation under ejusdem generis where
broader interpretation was also available); City of New York, 618
F.3d at 184 (there is no contextual basis for adopting a narrower
than normal meaning here.).
Case: 12-3720 Document: 22 Page: 51 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
52/53
43
CONCLUSION
For the reasons stated, the district courts order
dismissing the second superseding indictment and vacating the
defendants conviction should be reversed and the case remanded for
sentencing.
Dated: Brooklyn, New YorkDecember 20, 2012
Respectfully submitted,
LORETTA E. LYNCH,United States Attorney,Eastern District of New York.
By: /s/Marisa Megur Seifan,Nathan Reilly,Assistant U.S. Attorneys.
DAVID C. JAMES,MARISA MEGUR SEIFAN,NATHAN REILLY,Assistant United States Attorneys,
(Of Counsel).
Case: 12-3720 Document: 22 Page: 52 12/20/2012 800060 176
7/28/2019 Brief And Special Appendix For The United States
53/53
Certificate Concerning Type-Volume Limitation,Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation
of Fed. R. App. P. 32(a)(7)(B) because the brief contains 9,842
words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R.
App. P. 32(a)(6) because this brief has been prepared in a
monospaced typeface using Word Perfect X5 in 12 point Courier New
font.
Dated: Brooklyn, New YorkDecember 20, 2012
/s/David C. JamesAssistant U.S. Attorney
Case: 12-3720 Document: 22 Page: 53 12/20/2012 800060 176