By Daniel Colbert, ACLR Featured Blogger

           Lawrence DiCristina operated a poker club in the back room of a Staten Island warehouse in which he operated a business selling electric bicycles.[1] At the time, he probably did not think these games would get him involved in a dispute over canons of statutory construction. When DiCristina was charged with violating the federal Illegal Gambling Business Act[2] (IGBA), he argued that although the poker games clearly violated state law, they did not fall under the federal definition of gambling.[3]

            The District Court agreed, but the Second Circuit reversed.[4]  Under the statute, “‘gambling’ includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.”[5] DiCristina argued that this clause should be read as a definition limiting “gambling” to include only games that are analogous to those listed.[6] The government argued that the statute instead does not define gambling at all, though it defines an “illegal gambling business” as one that violates state law, involves five or more persons, and meets certain size requirements.[7] The Second Circuit agreed that the “including but not limited to” clause was “not definitional,” and it remanded the case to reinstate the jury verdict against DiCristina and proceed to sentencing.[8]

            DiCristina filed a cert petition on November 4, 2013, asking the Supreme Court to resolve not only the question of whether poker is gambling under the IGBA, but also whether “including but limited to “ clauses should be read to limit statutes to encompass only similar things.[9] The question presented in the petition argued that the circuits are split on

whether including-but-not-limited-to clauses merely provide [sic] examples without in any way limiting the term being defined (as five circuits have held) or whether they restrict the term being defined to things of the same general kind as those enumerated (as four circuits and many state courts of last resort have held).[10]

The petition argued that “including but not limited to” clauses must always be given a limiting effect, without which the clause in the IGBA is rendered meaningless.[11]

            The government argued that the petition overstates its case: courts are not divided into those thatalways assume a limiting effect and those that never do. In fact, the courts that petitioners argued have applied a universal limiting rule have instead adopted a pragmatic, contextual approach similar to the one the Second Circuit uses.[12] DiCristina countered that there is still a split between circuits that apply a pragmatic approach and those that never give any limiting effect to “including but not limited to” clauses.[13]

            This case was not an appropriate vessel for resolving the split, but the Supreme Court should clarify that “including but not limited to” clauses do not need to be definitional to be meaningful. On the contrary, those clauses still have the effect of clarifying that certain examples are included, even if they do not limit what else might be. Those clauses might be intended to clarify that certain examples that are not obvious nevertheless are reached by the statute. For example, Congress may have assumed that courts would understand traditional casino games like poker to be included in the IGBA’s scope, but it might have thought lotteries were less obviously gambling and needed to be named specifically. That wouldn’t mean Congress meant to exclude poker. To the contrary, it would mean Congress thought poker was so obviously included that it need not be mentioned by name.

            In fact, that seems to be the case in the IGBA. Poker is clearly within the common meaning of “gambling.” If I were to tell someone I was taking a trip to Las Vegas to gamble, no one would be surprised to hear that I played Texas Hold ‘Em while I was there. Though DiCristina argued that poker is in fact a “game of skill” rather than a “game of chance,” the skill involved in poker is knowing when to place bets. When he has a good hand and believes that his opponent does not, a good player induces his opponent to bet more money. In other words, he “knows when to hold ‘em and knows when to fold ‘em.”[14] This is not a different kind of skill from the skill involved in traditional sports betting, in which a skilled bettor takes advantage of situations in which he thinks the probabilities are different from the bookmaker’s odds.

            It would make sense, then, for Congress to assume that courts would apply the IGBA to poker without any specific prodding, but that other types of gambling would need to be specified. Regardless, it is absurd that some circuits read clauses that explicitly disclaim a limiting effect as being inherently limiting. The Court rightly passed on this case, but it should find an opportunity soon to address this strange development.