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12-3720
IN THE

United States Court of Appeals For the Second Circuit
_________________________ UNITED STATES OF AMERICA, Appellant v. LAWRENCE DICRISTINA, Appellee _________________________ On Appeal from the United States District Court for the Eastern District of New York ________________________ BRIEF FOR AMICI CURIAE MICHAEL SEXTON, GREGORY RAYMER, JONATHAN LITTLE AND VANESSA SELBST IN SUPPORT OF APPELLEE AND AFFIRMANCE _________________________ Kenneth L. Adams Christopher T. Leonardo ADAMS HOLCOMB LLP 1875 Eye Street NW Washington, DC 20006 Tel. (202) 580-8820

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TABLE OF CONTENTS

Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST & AUTHORITY TO FILE . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. Outcomes In Poker Must Be Measured Over Time . . . . . . . . . . . . . . 6 II. Poker Is Qualitatively More Skilled Than Gambling Games . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Math Skills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Observing Your Opponents . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. Manipulating Your Opponents . . . . . . . . . . . . . . . . . . . . . . . 18 D. Varying Your Play With The Circumstances . . . . . . . . . . . . 18 E. Putting It All Together . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ADDENDUM A – How to Play No Limit Hold’Em . . . . . . . . . . . . . . . . . . .. 22 ADDENDUM B - List of Skills Involved in Texas Hold’Em . . . . . . . . .. . . . 25 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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TABLE OF AUTHORITIES CASES Page Mount Pleasant vs. Chimento et al (Municipal Court of Charleston, SC; 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RULES Second Circuit Rule 29.1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATUTES Illegal Gambling Business Act (“IGBA”), 18 U.S.C. § 1955 . . . . . . . . . . . . . . 6 MISCELLANEOUS Mike Sexton, Shuffle Up and Deal (William Morrow 2005) . . . . . . . . . . . . . . . 2 http://www.bestpokermoments.com/2012/01/daniel-negreanumakes-a-great-bluff-against-veteran-pro-freddy-deeb/ . . . . . . . . . . . . . . . . . . 18 http://www.bing.com/videos/search?q=+freddy+deeb+calls+negreanu +bluff&mid=E1A60C15665EEEA11CE6E1A60C15665EEEA11CE6&view =detail&FORM=VIRE2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 http://www.youtube.com/watch?v=bg31pA_aG8U&feature=youtube . . . . . . 18 http://www.youtube.com/watch?v=FkemHmyWGcw . . . . . . . . . . . . . . . . . . . . 11 http://www.youtube.com/watch?v=gxo1mAng090 . . . . . . . . . . . . . . . . . . . . . . 20 http://www.youtube.com/watch?v=qv2C_m0D-gY . . . . . . . . . . . . . . . . . . . . . .15 https://docs.google.com/folder/d/0B8MDUIpduiwJaDB6b1RZM1dteFU/ edit?usp=sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 www.floattheturn.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 2

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STATEMENT OF INTEREST & AUTHORITY TO FILE1 Amici are four accomplished professional poker players who have decades of collective experience, over the course of millions of poker hands, and are experts on the issue of the relative roles of skill and chance in both tournament and cash game poker. As professional players they have a strong and continuing interest in the legal status of the activity on which they depend for their livelihood. Amicus Michael Sexton has been a successful professional poker player for 30 years and is a member of the Poker Hall of Fame. During the past eleven years, in addition to playing professionally he has served as the lead announcer and commentator for the nationally televised broadcasts of tournaments sponsored by the World Poker Tour (“WPT”) – one of the two leading poker tournament series in the world. In that capacity he has observed and provided expert analysis of the skills demonstrated by hundreds of professional and amateur poker players in tens of thousands of hands played at the final tables of WPT tournaments.

1

Pursuant to Circuit Rule 29.1(b), amici certify that no counsel for any party authored or funded the preparation of this brief, and that amici solely funded the preparation of this brief.

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Mr. Sexton has won more than $5.3 million in tournaments during his poker career, including titles at the World Series of Poker, the Legends of Poker, the World Poker Finals, the LA Poker Classic, the Four Queens Classic, the Euro Finals of Poker, the California State Championship, Reno’s Pot Of Gold, the New Orleans Open, the Super Bowl of Poker, the America’s Cup of Poker and the Australian Poker Championships. He served as a consultant to the founders of Party Poker, which rose from a startup company to the largest and most successful online poker site in the world, valued at $9 billion when it went public in 2005. He served as the primary instructor when the WPT first introduced its “Boot Camp” seminar program, designed to improve the skills of amateur poker players. He has taught seminars on strategic thinking to law students at Harvard Law School and to MBA students at Ohio State University. Mr. Sexton provided expert testimony in the case of Mount Pleasant vs. Chimento et al (Municipal Court of Charleston, SC; 2009), on the question whether skill predominates over chance in the game of poker. For ten years he was a featured writer for Card Player Magazine, and authored the New York Times best-selling poker book, Shuffle Up and Deal (William Morrow 2005). A veteran of the Army’s 82nd Airborne Division, Mr. Sexton resides in Las Vegas with his wife and family. In addition to teaching poker skills he has taught ballroom dancing and bridge. Mr. Sexton is a founder of PokerGives.org, a 2

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nonprofit organization that facilitates charitable giving for poker players who wish to follow his example by donating a portion of their tournament winnings to charity. Amicus Gregory Raymer is a 48 year-old professional poker player. Before he played poker for a living, Mr. Raymer earned his Masters degree in Biochemistry and a Law degree from the University of Minnesota, and practiced patent law for 12 years, specializing in biotechnology and genetic engineering. After playing competitive poker for a number of years on a part-time basis, both in live games and online, in 2004 Mr. Raymer won the prestigious World Series of Poker championship event, besting a field of 2,576 players and winning $5 million. He has earned his living as a full time professional poker player since 2004. Mr. Raymer has won more than $7 million from tournament play alone during his professional poker career, and holds the unparalleled distinction of having won four out of five consecutive tournaments on the Heartland Poker Tour in 2012, where he was named Player of the Year. During his career to date he has finished in the top ten percent of the field in more than 100 sanctioned tournaments, and has made the final table six times at

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the World Series of Poker. Like Mr. Sexton and the other amici, he has also been a consistent winner in cash games during his professional career. In addition to competing in both tournaments and cash games, Mr. Raymer teaches poker seminars and served for many years on the Board of Directors of the Poker Players Alliance, a non-profit organization that works to protect and advance the rights of poker players. He resides in North Carolina with his wife and daughter. Amicus Jonathan Little is a 28-year old professional poker player, who has earned his living since college playing cash games and tournament poker both online and in licensed poker rooms. Mr. Little was part of the vanguard of young, tech-savvy players who applied the tools of computer technology in ways that revolutionized the game of poker and fueled the “poker boom” during the first decade of the 21st century. After establishing himself as one of the top online players he went on to achieve success in live play as well, earning “Player of the Year” honors from the World Poker Tour in 2008. tournament play alone. In addition to playing full time, Mr. Little operates an online teaching site (www.floattheturn.com) where he offers teaching videos and live “webinars” to He has won more than $5 million to date in

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players who seek to improve their poker skills.

He also provides individual

coaching to advanced players, and is the author of the leading work on tournament strategy, a two volume series titled “Secrets of Professional Tournament Poker.” Amicus Vanessa Selbst is a 28 year-old professional poker player. A

graduate of Yale University and Yale Law School, she earns her living entirely from poker, in cash games and in tournaments. In her young career to date Ms. Selbst has won 11 tournament titles including two World Series of Poker bracelets, and has made five World Series final tables. She has already won more money playing tournament poker than any woman in the history of the game – over $7 million. Amici have authority to file this brief without leave under Rule 29(a) of the Federal Rules of Appellate Procedure because all parties have consented to the filing. ARGUMENT Each of the amici has earned a successful living consistently over a period of years through the exercise of his/her poker skills. From these years of experience, two crucial points emerge. First, success in poker can only be measured over a significant period of time, because that is how the game is played – by professionals and amateurs alike. Unlike rolls of the dice or spins of a roulette

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wheel, poker hands are not independent events; instead, information gained and lessons learned in each poker hand inform every subsequent hand. Thus, poker players play the long game: they seek to maximize their winnings over time. Second, poker requires a level of skill not present in any of the games listed in the Illegal Gambling Business Act (“IGBA”), 18 U.S.C. § 1955.2 Skilled poker players amass abilities in a variety of disciplines, including mathematics, observation, pattern recognition and human psychology. They must weave these disciplines together in real time to produce favorable outcomes, competing against others who are attempting to do the same. Thus, in each hand of poker, and certainly over a typical session of poker, players will exercise more diverse skills, and see their outcomes influenced by how well they exercise skill. I Outcomes in Poker Must Be Measured over Time. Just as a baseball player’s success as a hitter is measured by the outcome of hundreds of at-bats, not a single trip to the plate, amici’s success at poker does not turn on the outcome of any individual hand but rather on their results over the course of hundreds of hands played each week. Even the best players do not win

2

In the District Court, as in its brief on appeal, the Government treated “sports betting” as if it were the same as “bookmaking”, an enumerated activity prohibited in § 1955. It is not – a moot point given Judge Weinstein’s analysis of the factual differences between the skills involved in sports betting and in poker. (Opinion at 110) To succeed in poker, players must not only be able to pick winners, but in fact create them. 6

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every hand they play. But they know that if they make skillful decisions in every hand they play they will win over time. In the District Court proceedings below, Dr. Randall Heeb provided expert testimony documenting the difference between the results achieved by more skilled players and less skilled players. He showed empirically that skilled players

consistently win more with their winning hands and lose less with their losing hands than do less skilled players. As documented in Dr. Heeb’s analysis of 415 million poker hands played online during a 12-month period, no unskilled player can get lucky enough often enough to win consistently over time, as each of the amici has done. By applying the skills discussed below more consistently and at a higher level than their opponents, amici do not necessarily win more hands than their opponents but they win more with their winning hands and lose less with their losing hands. The result is that over time they consistently win more than they lose, while unskilled opponents lose more than they win. Dr. Heeb’s analysis mirrors amici’s experience. It shows that even over a relatively short period of time, skilled players are highly likely to outperform less skilled opponents. It also shows the important fact that poker players tend to play many hands of poker. Amici and their peers play hundreds of hands of poker every week. But repeat play is not only the practice of professionals. Amateurs likewise play poker for the long run. And indeed, the rules and structure of a poker game 7

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contemplate extended play.

For example, large tournaments typically take

hundreds of hands to resolve. And in cash games, a typical session for most players lasts between 4 and 8 hours. Moreover, winning strategies require playing many hands. This is not only for the sake of practice – which is of course vital – but also because, as discussed in greater detail below, poker players are constantly feeding information to their opponents in an effort to manipulate them. Thus, a player might fold several hands in a row in order to induce his opponents to believe that he is playing conservatively and intends to continue folding. He predicts that his opponents will respond by playing more aggressively, risking more chips because they believe that he will continue to fold. And then in a crucial hand, he will capitalize on his opponents’ overreaching by taking a very large pot. Or a player might successfully bluff, and then turn her cards up, revealing that she deceived her opponents. She will do this in order to induce her opponents to call her next large bet, which will not be a bluff. All of these strategies take time and patience to execute. And just as it would make no sense to evaluate a baseball hitter’s success after only one swing, it makes no sense to consider outcomes in poker after only one hand.

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II

Poker Is Qualitatively More Skilled than Gambling Games. Poker is not only a game of skill in that the influence of skill is quantifiably

greater than that of chance. It is also qualitatively a game of skill in the sense that poker players use a diverse array of skills to overcome the influence of chance. Poker skills are thus different from gambling skills in two important ways. First, poker players must do more than make astute predictions about future events beyond their control – which is all the most skilled gambler does. Poker players do not merely analyze the likelihood that a given hand may win the pot; they play the hand in a manner that is designed to shift the odds in their favor. They must outplay their opponents, not outguess them. Every hand of poker requires multiple decisions whether to fold, call or raise (and if so, how much).3 Skilled players like amici bring an array of diverse skills to bear on each decision. As a result, over the course of a typical 4-8 hour session they are able to make hundreds of decisions more accurately and more consistently than do less skilled players. Second, success in poker turns on the relative skill levels of the players, not their absolute level of skill.
3

The tenth worst player in the world will win

Unavoidably, in order to describe how skilled players employ the skills about which Dr. Heeb testified at trial it is necessary to describe situations that may be difficult to understand without a basic knowledge of how the game is played. Attached as Addendum B is a description of how No Limit Hold’Em is played, and the meaning of the terms used in this brief to describe poker hands. 9

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consistently playing with the nine players who are even less skilled. He does not have to beat the odds – he only has to beat his opponents. This point is important because it means that even an average poker player has the capacity for success. By improving one’s skills, anybody can become a successful poker player. But no matter how much somebody studies, he can never become a winning roulette or lottery player. And in the realm of sports betting, consistent success is reserved for an elite few – those who are so skilled and who have such great resources that they can best the predictive ability of professional oddsmakers. The ordinary sports bettor doesn’t stand a chance of making a consistent profit against a bookmaker. These principles are amply illustrated in real life poker hands, which show that what separates winning poker players from losing players is not the cards they are dealt but rather how skillfully they play their cards. A pair of aces is the best possible starting hand in No Limit Hold’Em. It doesn’t always win. But when it wins it can win a small pot or a big pot,

depending on how skillfully it is played. Conversely, when it loses it can lose a big pot or only a small pot depending on how skillfully it is played. The extent to which a given player wins the most or loses the least with the cards she is dealt is predominantly a function of her level of skill. The following video demonstrates a hand in which an expert player, poker professional Daniel Negreanu, is dealt two aces. His opponent catches a lucky flop 10

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which gives him a better hand -- three sevens. Most amateur players would lose all their chips in Mr. Negreanu’s place, holding two aces and believing it to be the best hand. Instead, through the exercise of his considerable poker skills, Mr. Negreanu correctly deduces that his pair of aces is not the best hand and he folds, losing the minimum. See, http://www.youtube.com/watch?v=FkemHmyWGcw Conversely, the next video demonstrates a typical No Limit Hold’Em hand in which a skillful player (here, amicus Little) “earns” the pot by playing his hand in a manner that is calculated to induce his opponent to fold what would have been the winning hand had he called the final bet. A less skilled player would have played the hand more passively and would have lost the pot (or folded to a bet by his opponent). See, https://docs.google.com/folder/d/0B8MDUIpduiwJaDB6b1RZ M1dteFU/edit?usp=sharing. 4 The range of skills deployed by winning players is set forth in a list developed by amicus Raymer and attached as Addendum B to this brief. While this comprehensive list of the skills necessary to succeed consistently at the game of poker is long and detailed, the skills can be grouped into a few broad categories:

4

This video clip is part of a training video prepared by amicus Little for members of his online training site. It is a reconstruction of an actual hand played by amicus Little during a WPT championship tournament. 11

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A.

Math skills

Skilled poker players engage in precise calculations on the fly using a variety of tools to weigh the probable costs and benefits of each available move. A few examples follow. 1. Based on many hours of computer simulations (performed

away from the table, between playing sessions) they know how a given hand they are dealt is likely to fare statistically over time versus the range of hands their opponents are likely to hold. For example, suppose you are dealt 9-9 and are considering raising with it before the flop5. A skilled player will take into account the range of hands with which an opponent is likely to call a raise. Let’s assume you are considering betting enough to force your opponent to risk his entire chip stack. And let’s assume further that based on the opponent’s level of skill and observed tendency to play conservatively, you believe he will only call all-in with a very strong starting hand such as A-A, K-K, Q-Q or A-K. You know from the computer simulations you have done that 9-9 is nearly a two-to-one underdog in that case, and will win on average about 35% of the time against that range of hands. But one of those hands will be dealt to this opponent only about 2.6 percent of the time. Which means that, on average, 97.4 percent of the time your opponent
5

In standard poker notation a player’s two hidden cards (hole cards) are shown in this fashion. Thus 9-9 indicates the player was dealt a pair of nines. A-K indicates the player was dealt an ace and a king. Q-Q indicates a pair of queens. 12

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will fold, and you will win whatever is in the pot. In the 2.6 percent of instances where your opponent will call, you will win his entire stack about a third of the time, and will lose an equal amount two-thirds of the time. A skillful player will weigh that cost-benefit equation among many other factors in making a decision how to play the hand. 2. A common post-flop situation in No Limit Hold’Em arises

when you have four cards to a flush (or straight). Let us assume your opponent will win if you are not successful in making your flush. When your opponent bets, if you are a skilled player your decision whether to call the bet or fold will turn in significant part on a cost-benefit analysis known as calculating the “pot odds”. Because you are a skilled player, you know that you will only complete the flush and win the hand about one-third of the time. In other words, for every three

times you draw at the flush you will only win once. In order for it to be profitable over time for you to draw at the flush, you must win at least twice as much as it costs you to draw. Most unskilled players will pay too much to chase a flush, with too small a likely return on those occasions when they complete it. As a result they will lose more with flush draws than a skilled player would lose. 3. Bet sizing is another important skill that allows skilled players

to win more with their winning hands and lose less with their losing hands. Using the example of the flush draw above, a skilled player would make the smallest bet

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that would deny her opponent pot odds to call. The skill of bet sizing involves making bets that risk the fewest number of chips necessary to achieve the desired result (here, denying your opponent the correct mathematical odds to justify drawing at the flush). Very few amateur players have the skills necessary to figure out what that amount is in most situations. As a result they routinely bet too little to achieve the desired result or they risk more than they need to. Either way, they will win less than the skilled player when they win, and lose more when they lose. 4. Poker math is not limited to numerical calculations and

statistical probabilities. Poker players must also develop a working knowledge of advanced mathematical concepts such as game theory in order to make the best possible decisions when to fold, bet or raise (and how much), taking into account how their opponent is likely to respond and recognizing that each player can only estimate (and not know for certain) what cards their opponent holds. Even more important, all of these math skills form only a foundation for the exercise of other skills. Unlike gamblers who simply “play the odds,” poker players use their understanding of mathematics as one of many inputs into complex decisions at the table. B. Observing your opponents

Skilled poker players are constantly looking for information they can use to reduce the inherent uncertainty about the cards held by their opponents, and

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thereby increase their own ability to determine accurately whether they should bet, raise or fold. Highly skilled players like amici have the ability to “put their opponent on a hand” – i.e., correctly gauge the type of hand their opponent holds – with precision that often amazes onlookers.6 Reading players is a skill born of pattern recognition – observing one’s opponents constantly, and correlating their behaviors to the strength or weakness of the hands they show. Much of that information is collected during hands in which you have folded, and are free to concentrate on observing the other players who are contesting for the pot. Over time, you can identify patterns of behavior that correlate to demonstrated hand strength (or weakness). You then bring those correlations to bear when you are involved in contesting a pot. The first thing a skillful player observes about each opponent is his skill level. Is he playing in a straightforward, predictable manner? Is he a passive, conservative player who only bets/raises with a narrow range of strong starting hands, or an aggressive player who raises and re-raises before the flop with a wide range of hands? If the former type of player re-raises before the flop, it is easy to

6

In the motion picture “Rounders”, the protagonist is a law student who aspires to poker greatness. While it is fictitious, the following scene is not far from what expert players routinely do when they accurately predict the precise holding of their opponent based on close observation of the opponent’s actions. See, http://www.youtube.com/watch?v=qv2C_m0D-gY. 15

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narrow the range of his probable hands to a small fraction of the 169 possible starting hands. Another type of behavior that often provides a great deal of information about the type of hand your opponent holds is her pattern of betting. Most players below the expert level vary the size of their bets based on the strength of their hand. Some bet bigger when they are weak and want their opponent to fold, and smaller when they are strong and want their opponent to call. Other players do the opposite. But as long as they exhibit a pattern in which the size of their bets correlates to their hand strength, the skilled player will detect that pattern and use the information to decide when to call an opponent’s bluff, and when to fold in the face of an opponent’s genuine strength. The following is a video clip of a hand in which Daniel Negreanu tried unsuccessfully to induce his opponent, fellow poker professional Freddie Deeb, to fold the best hand. As soon as Negreanu made his final bet Deeb wondered aloud why he chose to make such a large bet. In the end, Deeb reached the correct conclusion that the size of the bet made it more likely that Negreanu was bluffing, and he called with a mediocre hand that was good enough to win the pot, eliciting admiring reactions from the other pros at the table (suggesting that most of them thought Negreanu had the best hand, and they would have folded had they been in Deeb’s shoes.) See, http://www.bing.com/videos/search?q=+freddy+deeb+calls+ 16

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negreanu+bluff&mid=E1A60C15665EEEA11CE6E1A60C15665EEEA11CE6&vie w=detail&FORM=VIRE2. Another source of information about the strength or weakness of an opponent’s hand comes from observing unconscious physical movements (often referred to as “tells”). For example, every person has a normal blink rate – the frequency with which her eyes blink. Most people blink faster than usual when they are lying. If an unskilled player makes a big bet and starts blinking faster than usual, it is more likely that she is bluffing. Of course you can only take advantage of that information if you have observed that opponent prior to the hand and noted her normal blink rate while relaxed, and also observe a change in blink rate when the big bet is made. Skilled players like amici are constantly observing their opponents and noticing a variety of body movements, in order to detect clues that the player is feeling stressed (which often correlates to misrepresenting the strength of their hand). Changes in the position of feet, legs, hands or posture; mouth and eye movements; pulse rate as seen in the pulsing of the carotid artery; respiration rate; dilation of pupils – all can provide clues to a player’s stress level if carefully observed. The following video shows a hand in which Daniel Negreanu correctly “reads” his opponent as holding a weak hand, and uses that to maximize his profit. At the conclusion of the hand, former FBI polygraph expert Joseph Navarro points 17

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out the facial “tells” that tipped off Negreanu to his opponent’s weakness. See, http://www.youtube.com/watch?v=bg31pA_aG8U&feature=youtube C. Manipulating your opponents

The flip side of observing opponents and identifying betting patterns or physical “tells” is giving out disinformation to your opponents in order to induce them to call when you have a strong hand or fold when you are bluffing. Thus you might deliberately increase your blink rate, or lick your lips, when you have a strong hand and want to induce your opponent to call with the second-best hand. Or, if you have shown a winning hand after making a small bet that was called, you might induce your opponent to fold the next time you run a bluff, by making a similarly small bet that he will misinterpret as strength. In the following hand, Daniel Negreanu succeeds in inducing Freddie Deeb to fold the better hand by betting an amount that led Deeb to conclude erroneously Negreanu had a strong hand and wanted him to call. See, http://www.bestpokermoments.com/2012/01/ daniel-negreanu-makes-a-great-bluff-against-veteran-pro-freddy-deeb/ D. Varying your play with the circumstances

While it is essential to develop a solid basic strategy, skilled players also have the ability to depart from basic strategy when circumstances make it profitable to do so. For example, there is no situation in a cash game where it would be correct to fold A-A before the flop. 18 Such circumstances do arise

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(although rarely) in tournament play, yet unskilled players typically will fail to make such an adjustment. Similarly, in tournament play where the amount of the blinds and antes increases constantly, skilled players continually change their strategy about which hands to play based on the ratio of their chip stack to the size of the blinds and antes. Skilled players will also depart from correct basic strategy in order to capitalize on mistakes made by an opponent who has “gone on tilt” emotionally and is playing too many hands too aggressively. E. Putting It All Together.

Ultimately, the skill level of each poker player is determined by the extent to which he can (a) develop the variety of skills that contribute to making correct decisions, (b) bring them to bear under stress in the short period of time available each time he must make a decision whether to bet, raise or fold, and (c) do that hundreds of times in a single 4-8 hour session of play. The following video excerpt of a hand played by poker professional Tom Dwan provides a glimpse of the array of skills he brings to bear in winning a large pot with the worst hand, inducing two other skilled professional players to fold. See, http://www.youtube.com/watch?v=gxo1mAng090

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Note that the success of Dwan’s play depended on the accuracy of his judgment about the type of hands his opponents held (based on their betting) and about how his opponents would react to his moves, based on his observation of his opponents over time. He correctly determined what his opponents had; he correctly calculated what they would think he had if he bet his hand in a certain fashion; and he correctly judged that they were skilled enough to fold a strong hand if they believed they were beaten. In the minutes it took to play that hand, and the seconds it took to make each decision, Dwan brought to bear his history of observing these opponents as well as many hours of experimenting with positional plays of this sort. In the end, he had the confidence and courage to make a winning play that would have been very costly if it had failed. In doing so he demonstrated the kinds of skills that amici and all winning players employ to achieve consistently better results at the poker table than their less skilled opponents. The skills of an amateur player may not be as advanced as those of amici, but for all winning poker players at every level of skill poker is a game of skill, not chance. Only the losing players blame bad luck for their results. Just as with other games of skill such as golf, chess and bridge, it has been the consistent experience of amici that if losing poker players are willing to put in the time and effort to

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improve their skills, they too can become winning players (as long as they play in games where are least some of their opponents are less skilled than they are.) CONCLUSION

Amici urge the Court to affirm the district court’s order dismissing the second superseding indictment and vacating the defendant’s conviction.

Dated: Washington, D.C. March 25, 2013

Respectfully submitted,

/s/ Christopher T. Leonardo Kenneth L. Adams Christopher T. Leonardo

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ADDENDUM A

How to Play No Limit Hold’Em The most popular type of poker played today is No Limit Hold’Em. It is typically played with nine or ten players. In each hand, the players create five-card poker hands by combining two personal concealed cards (“hole cards”) with five shared “community” cards. Players may use one, both or none of their hole cards. A typical hand of No Limit Hold’Em takes about two minutes. The sequence of play is as follows. First, the two players to the left of the dealer each post small forced bets, known as the “small blind” and the “big blind”. Typically the big blind is twice the amount of the small blind. The blinds are the only compulsory bets, and the obligation to post them rotates clockwise around the table with the start of each new hand. Once the blinds are posted, each player is dealt two hole cards face down. A round of betting then takes place, in which all players who wish to stay in the hand must at least match the size of the big blind. When it is his turn to act, a player may call (match the previous bet), raise (increase the size of the previous bet) or fold (discard his hand without putting any chips in the pot). The amount of each raise must at least equal the amount of the previous bet or raise; the maximum amount is equal to the total number of chips in the raising player’s stack. Typically a maximum of three raises are permitted on each betting round. 22

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After the first round of betting, three community cards (“the flop”) are dealt face up in the center of the table. Those three cards can be used by each player, in combination with her two hole cards, to create a five-card poker hand. A second round of betting then takes place among those who did not fold during the first betting round. After the second round of betting, a fourth community card (“the turn” or “fourth street”) is dealt face up in the center of the table. The four community cards can be used by each player, in combination with his two hole cards, to create a five-card poker hand. A third round of betting then takes place among those who did not fold during either the first or second betting round. Finally, after the third round of betting, a fifth community card (“the river” or “fifth street”) is dealt face up in the center of the table. The five community cards can be used by each player, in combination with her two hole cards, to create a five-card poker hand. A fourth and final round of betting then takes place among those who did not fold during the previous three betting rounds. There are two ways to win a hand of Texas Hold’Em. The first is to make a bet (during any round of betting) that induces all of the other players to fold. If only one player remains in a hand, he wins the pot without showing his cards. The second way to win is at the end of the fourth round of betting; if two or more players are still active in the hand, the player who shows the best five-card poker

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hand (by combining his two hole cards with the five community cards) wins the pot. Once a hand ends, another hand begins immediately, with the obligation to pay the blinds rotating clockwise around the table.

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ADDENDUM B

List of Skills Involved in Texas Hold’Em Prepared by Gregory Raymer I. Math Skills A. Calculating Odds Calculating pot odds Calculating implied pot odds Calculating reverse implied pot odds Calculating hand odds B. Evaluating Your Own Hand’s Strength Calculating the likelihood that you have the best hand Calculating number of outs for your hand Calculating number of outs for your opponents’ hand(s) Converting outs to hand odds Comparing hand odds to pot odds, implied odds, and reverse implied odds Estimating equity in a pot against a range of hands for an opponent Estimating equity in a pot against a range of hands for multiple opponents C. Evaluating Starting Hand Quality Understanding basic starting hand selection guidelines Understanding basic starting hand selection when opening the pot from each position Understanding basic starting hand selection when facing a raise Understanding basic starting hand selection when facing a limp Understanding basic starting hand selection when facing multiple raises

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Understanding basic starting hand selection when in the big blind Understanding basic starting hand selection when in the small blind Understanding basic starting hand selection when on the button Understanding basic starting hand selection when in early, middle, or late position D. Basic Strategy (Game Theory) Understanding basic flop strategy when you were preflop aggressor Understanding basic flop strategy when you were not preflop aggressor Understanding basic flop strategy when you are check-raised Understanding basic flop strategy for different flop textures Understanding which flop textures are likely to hit each player All of the above for strategy on the turn All of the above for strategy on the river II. Observing Your Opponents A. Understanding Your Opponents’ Skill Level Determining each opponent’s general skill level Determining each opponent’s particular aptitude at every poker skill Determining when an opponent is playing above or below his normal skill level Knowing which opponents are more likely to fall for a trap play Knowing which opponents are more likely to take a free card Predicting which opponents can and will alter their strategy, and what variables (e.g.,position at the table, number of chips in their stack, stage of a tournament, etc.), will induce them to do so

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B. Understanding Your Opponents’ Hand-Selection Tendencies Determining from an opponent’s skill level his expected general tendencies Determining from an opponent’s skill level his expected tendencies for each type of decision Determining how each opponent varies from his expected tendencies for each type of decision Determining why each opponent varies from his expected tendencies for each type of decision Determining each opponent’s range of hands generally Determining each opponent’s range of hands when they limp preflop Determining each opponent’s range of hands when they raise preflop Determining each opponent’s range of hands when they reraise preflop Determining each opponent’s range of hands when they call a raise preflop Determining each opponent’s range of hands when they defend their big blind preflop Determining each opponent’s range of hands when they defend their small blind preflop Determining each opponent’s range of hands when they defend their button preflop Determining each opponent’s range of hands when they continuation bet on the flop Determining each opponent’s range of hands when they do not continuation bet on the flop Determining each opponent’s range of hands when they check-call on the flop Determining each opponent’s range of hands when they check-raise on the flop Determining each opponent’s range of hands when they weak-lead on the flop Determining each opponent’s range of hands when they weak-lead on the turn Determining each opponent’s range of hands when they continuation bet on the turn

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Determining each opponent’s range of hands when they check-raise on the turn Determining each opponent’s range of hands when they check the river Determining each opponent’s range of hands when they bet the river Determining each opponent’s range of hands varies for each of the above situations based on position Estimating how each opponent will play each hand in their range Estimating the relative likelihood of each hand in an opponent’s range (weighted ranges) Deriving the correct decision against each opponent based upon their predicted weighted range C. Pattern-Mapping Opponents’ Behavior Pattern-mapping opponent’s starting hand selection Pattern-mapping opponent’s bet sizing Pattern-mapping opponent’s continuation betting frequency generically Pattern-mapping opponent’s continuation betting frequency for each board type Monitoring opponent’s VPIP (“Voluntary money Put in Pot”)—the frequency with which a player engages in a hand without paying a blind bet Monitoring opponent’s aggression factor Pattern-mapping opponent’s preflop open-raising frequency generically Pattern-mapping opponent’s preflop open-raising frequency from the small blind Pattern-mapping opponent’s preflop open-raising frequency from the button Pattern-mapping opponent’s preflop open-raising frequency from early, middle, and late position Pattern-mapping opponent’s preflop 3-betting frequency generically

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Pattern-mapping opponent’s preflop 3-betting frequency from the big blind Pattern-mapping opponent’s preflop 3-betting frequency from the small blind Pattern-mapping opponent’s preflop 3-betting frequency from the button Pattern-mapping opponent’s preflop 3-betting frequency from early, middle, and late position Pattern-mapping opponent’s preflop big blind defense factor Pattern-mapping opponent’s preflop small blind defense factor Pattern-mapping opponent’s tendency to weak-lead into the preflop raiser Pattern-mapping opponent’s post-flop stickiness Pattern-mapping opponent’s flatting tendencies on the flop, both in and out of position Pattern-mapping opponent’s semi-bluffing rate with strong draws Pattern-mapping opponent’s semi-bluffing rate with weak draws Pattern-mapping opponent’s bluffing rate with air Pattern-mapping opponent’s tendencies to bluff with hands having showdown value Pattern-mapping opponent’s tendencies to bluff the river with missed draws Pattern-mapping opponent’s tendencies to bluff the river when scare cards hit D. Understanding Your Opponents’ Table Image Monitoring each opponent’s table image Understanding which opponents are aware of their current image Understanding which opponents are aware that you are aware of their current image Predicting what each opponent will do in response to your awareness of their current image E. Detecting “Tells” Observing opponent tells generically

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Differentiating between acting tells and subconscious tells Observing hand tells Observing mouth tells Observing eye tells Observing forehead tells Observing shoulder tells Observing neck tells Observing chest/breathing tells Observing feet tells Observing posture tells Observing blink rate tells Observing micro-expression tells Observing tells in the opponent’s voice Understanding which opponents are aware of their own tells Understanding which opponents are capable of creating fake tells F. Memory Remembering as much detail as possible about each opponent from previous hands Remembering as much detail as possible about each opponent from previous sessions (years) Remembering observed but folded cards (only applies to some poker variants) III. Manipulating Your Opponents A. Inducing “Tells” Nonverbally inducing tells from opponents Talking to opponents to gather information Inducing opponents to provide verbal information Determining what statements from you will induce desired actions from opponent Inducing change in opponent’s temperament or mindset by talk or action B. Bluffing Understanding which plays will tend to look like bluffs 30

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Understanding which plays will tend to look like strong hands Understanding when a scare card is truly scary, and when it is actually unlikely to have helped anyone Understanding which community cards are more likely to help a bluff succeed Determining general bluffability of each opponent Determining bluffability of each opponent preflop Determining bluffability of each opponent on the flop Determining bluffability of each opponent on the turn Determining bluffability of each opponent on the river Determining bluffability of each opponent when a scare card is dealt Determining general stickiness of each opponent Determining stickiness of each opponent preflop Determining stickiness of each opponent on the flop Determining stickiness of each opponent on the turn Determining stickiness of each opponent on the river C. Slowplaying Understanding generally when slowplaying is likely to produce better results than betting Understanding when it is generally safe to slowplay Understanding when it is preferable not to slowplay even if it is safe to do so IV. Controlling Your Own Play and Avoiding Manipulation A. Maintaining Focus Establishing a game plan, but knowing when to vary from it in response to circumstances Reacting sensibly to wins and losses 31

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Emotional control (avoiding “tilt” and “happy tilt”) Not letting an opponent’s words or action negatively impact your temperament or mindset B. Controlling Your Own Table Image Monitoring your own table image Understanding what each opponents considers to be your current image Understanding which opponents know that you know what they think about your image Predicting what each opponent will do in response to your current image C. Controlling Your “Tells” Monitoring your tells Hiding tells Creating fake tells for opponents to observe Understanding when fake tells will succeed, and when they will backfire Hiding information from opponents Providing dis-information to opponents Pretending that an opponent’s words or action have impacted your temperament or mindset V. Varying Your Play With the Circumstances A. Understanding When to Vary from Basic Strategy Understanding how to vary all aspects of general basic strategy based upon knowledge of opponent Understanding how to vary all aspects of general basic strategy based upon position Understanding how to vary all aspects of general basic strategy based upon image Adjusting for each new detail, as well as predicting the adjustments each opponent is making B. Understanding the Difference Between Cash Games and Tournaments 32

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Understanding how to vary all aspects of general basic strategy based upon stack size Understanding how to vary all aspects of general basic strategy based upon tournament stage Understanding bubble strategy in a tournament Understanding how opponents react to the tournament environment VI. Skills Away from the Table A. Game Selection Calculating the expected value (EV) of each available game Selecting the optimal game given EV, variance, and bankroll Choosing between cash games and tournaments B. Money Management Keeping a dedicated bankroll for poker Maintaining sufficient funds in your bankroll for the games you are playing

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Certificate of Compliance

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because the brief contains 6,876 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 proportioned typeface using Microsoft Word in 14 point Times New Roman font.

Dated: Washington, D.C. March 25 2013

/s/ Christopher T. Leonardo Christopher T. Leonardo

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CERTIFICATE OF SERVICE I certify that on March 25, 2013 I caused the foregoing Brief For Amici Curiae Michael Sexton, Gregory Raymer, Jonathan Little and Vanessa Selbst In Support of Appellee and Affirmance to be served on all parties via the CM/ECF System.

/s/ Christopher T. Leonardo Christopher T. Leonardo

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