The Legal Consequences of Cheating At Poker
The Legal Consequences of Cheating At Poker – Richard C. Hannegan
As long as poker has been played, there have been crooked players trying to beat the game through cheating. The history of poker is not perfectly clear, but the game was played on Mississippi riverboats in the early 1800s and one of its first references was in a book written by Jonathan H. Green in 1843 where he called it “the cheating game.” In all likelihood, poker as it is commonly played today evolved from seventeenth century vying card games such as the French game of brelan and Persian game as nas . The origin of the word poker is debatable, but one possibility is that it derived from the underworld slang term “poke” which was commonly used by pickpockets to describe a wallet. Before one can cheat, or be cheated at the game of poker, a basic understanding of the rules and strategy is necessary.
People throughout history have not had too much trouble learning the rules and strategy of poker, however they have had some difficulty with finding places to legally play it. As poker spread rapidly across the country, states responded to the new form of gambling with laws that restricted and forbid the game. While in 1910 Mississippi tolerated many forms of gambling, Nevada made it a felony for any person to run a gambling game and California declared that poker was a game of skill and therefore the state’s antigambling laws did not apply. In 1920s, a person traveling coast to coast in the United States would pass through jurisdictions with different tolerances, laws, and consequences relating to the game of poker. In 1931, Nevada legalized gambling and Las Vegas built the first casinos for card players and gamblers of all sorts to flock to. As the decades went on, society’s views on gambling games such as poker fluctuated. While some states outlawed gambling as a destructive nuisance, other jurisdictions, like New Jersey’s Atlantic City, saw legalizing gambling in 1978 as a profitable opportunity.
The poker home game is as American as apple pie and baseball. A home game is poker played at a private residence, usually among friends and acquaintances without a formal dealer or bank, and without players being charged (by host or otherwise) to play. Home games are typically where newcomers first learn poker basics since there is a high comfort level and the environment is relatively safe and casual. The legality of home games depends entirely on the state or locality where the kitchen table sits as some jurisdictions allow it, others have outlawed it, and in many places where it is a crime, the police never enforce it. A poker home game that takes place in Los Angeles County, California shows the complexities of the law on this matter. Los Angeles 2005 County Code §13.20.030 states that “a player shall not deal, play, carry on, or conduct any game where players bet or wager money, checks, credits, or other things of value against each other.” This law seems to banish all wagering games in the county, however, California’s Penal Code §377j(e)(2)(d) states that games played with cards in private homes or residences where no person makes money for operating the game is legal. Without getting into the legal complexities of preemption, the state law trumps the county law and a home game of poker would be lawful in Los Angeles. Overall, when it comes to most home games, gaming legal expert I. Nelson Rose put it best, “you have a better chance of winning the World Series of Poker than being arrested [for playing in a home game].”
Just because an attorney says a home games is legal in a specific jurisdiction doesn’t mean the players are necessarily safe because cheating flourishes in home games due to the lack of organization and often amateur skill level. Home games generally lack a full time dealer, official banker, and rule enforcer to keep the game rolling fair and furthermore, friendly games tend to get casual and sloppy and often involve alcohol and distractions. In this environment, someone (even a friend or colleague) with a good understanding of the game and a dishonest demeanor can take advantage of other players using a few different cheating strategies. The most common method of home game cheating involves the rotating deck of cards which can be fixed and deal t to give a player an unfair advantage. The cheater does not have to be a gifted dealer or magician to fix the deck, rather they need to keep a steady eye on the cards and when an opportunity comes along, slip an ace to the bottom of the deck to be later dealt for a benefit. A skilled poker cheater can give the impression of shuffling the cards when in actuality they are manipulating cards in the deck to profit their play. Player collusion is another cheating method often used in home games and involves two or more players acting in concert to cheat the rest of the table by sharing cards, raising pots, and trick dealing. Two players looking to collude will create a series of symbols, words, or gestures to indicate hand strength which can either be used to allow accomplices to fold a hand or raise the pot to induce more action. Collusion can also be used with trick dealing by having the colluder falsely cut the deck or the cheat dealer stack cards to distribute to partners in crime. Finally, a common way for the game host (or card provider) to cheat is by using marked cards. Since the host usually provides the cards to be used in the game, they have an opportunity to make minute marks on certain key cards to allow them to ascertain what players are holding.
When caught, the typical home game cheater usually loses friendships and all future poker invites, however, depending on what jurisdiction the cheating occurred in, there can also be legal consequences. When an honest player discovers they lost money to a cheater, they can bring a civil action to attempt to remedy the situation. This action, however, will often fail if the jurisdiction has outlawed home poker games since when money or property is lost in an illegal activity, all parties are considered in pari delicto , or at equal fault, and therefore all can be barred from recovery. On the other hand, in a jurisdiction that permits poker home games, a cheated player has a strong case for fraudulent misrepresentation against the cheater. The Second Restatement of Torts §531 states that one who makes a fraudulent misrepresentation is subject to liability to the persons or class of persons whom has acted in reliance of the misrepresentation, to the pecuniary loss suffered by them through their justifiable reliance in the transaction. While a poker game is not an ordinary everyday transaction, it is one where people rely on other players to follow the honest rules and principals of the game. A cheater who has fraudulently misrepresented cards in order to take money from other players is likely liable for the monetary loss suffered by the cheated players.
One of the first cases on card cheating was the Vermont case of Preston v. Hutchinson, which involved a cheated player bringing a civil action against the cheater for restitution for his $272 loss. Plaintiff claimed that while playing a home game of brag (similar to poker) with three other people, these individuals worked together to take as much money from the plaintiff as they could with the intention of sharing the proceeds equally. Defendants claimed that during the game money was passed back and forth between all the players and that any collusion was incidental to the outcome of the game. The court held for plaintiff, stating the three confederates unlawfully, and fraudulently, broke the accepted rules of the game when they decided to collude and share profits. Further the court held that each confederate was jointly and severally liable, thus each defendant would be held liable for the plaintiff’s total loss.
In jurisdictions where poker home games are unlawful, courts have to decide whether a cheated player can recover damages when they in fact are engaging in an illegal activity. In the Oklahoma case of Grim v. Cheatwood, plaintiff alleged that defendant enticed him to participate in a poker game with crooked players who used collusion and marked cards to cheat. During the game plaintiff was unaware of the cheating and collusion and subsequently ended up surrendering $1,000 worth of mineral deeds the defendants to cover his losses. Upon later discovery of the dishonest game, plaintiff brought this action to cancel the mineral deeds despite the fact that the poker game was against the law. The court said that the general rule is that losses sustained in an illegal gambling game may not be recovered by the loser, however, since the plaintiff was playing honestly and was unknowingly cheated with the use of marked cards, the parties were in fact not in pari delicto and equity will intervene to protect the less guilty plaintiff. The dissent in this opinion found it clear that the plaintiff was in error for getting involved in the poker game in the first place and advocated that courts should decline to distinguish between degrees of turpitude of parties that engage in outlawed transactions.
In the Kansas case of State v. Terry, defendant was playing a game of five card stud poker when he was charged with a felony for participating in the deal, play or practice of a confidence game or swindle. If convicted, defendant was facing a fine not to exceed $5,000 and not less than $2,000 and no more than five years confinement in the state penitentiary. Defendant argued that five card poker was a game of skill and unlike other card games did not inherently involve cheating other players. The court held that poker did not apply to this criminal statute as it found the poker to be based on skill, however the court did point out that defendant was still in violation of state law and guilty of a misdemeanor for participating in a gambling game. Overall, if a player cannot resist the temptation to cheat in the casual atmosphere of a home game, they should head to the closest brick and mortar casino or card house where cheating is a whole different ball game.
Poker in brick and mortar casinos and card clubs is a much different bread than the home game. Brick and mortar establishments are usually very organized and include an official bank, a dealer for the table, and some method of charging customers for play, usually either a pot rake or fixed fee. The size and culture of a brick and mortar card room can be intimidating to new players or first time visitors and as a result these enterprises usually cater to a more advanced group of poker players. The legality of brick and mortar poker facilities closely resembles that of home games in that the laws differ depending on the jurisdiction. Usually it is safe to assume that if you see a large sign or advertisement for a casino or card club, it’s probably legal in that area. If lawful in a jurisdiction, official gaming commissions, or other agencies, are typically set up to monitor the industry and ensure the public confidence in the establishments. With sophisticated commissions come laws and statutes that dictate harsh punishments for when both the house and the player cheats at poker. It should be noted that unlawful underground brick and mortar facilities can be found in almost all jurisdictions and are infamous in big cities such as New York. These clubs are usually the result of no legal poker in a community, but can also be associated with organized crime and rampant cheating.
Just because brick and mortar casinos and card clubs have bankers, dealers, fancy chips, felt tables, surveillance, and sometimes security forces that rival small countries doesn’t mean they’re immune from cheaters. Casinos and clubs often follow generally accepted rules of the game that can be abused and overcome by skillful cheats. Some soft methods of cheating in brick and mortar games include pretending to bet, call, or fold out of turn or verbally stating one bet and then pushing out more chips (verbal is the final say) to elicit a response from other players. A string bet is a common dishonest move in which a player doesn’t get all the chips required for the raise into the pot in one motion; the strategy behind this move is to put out enough chips to call a bet, determine what affect it has on a player, and then possibly raise the bet. Most of the time these actions are made accidentally by inexperienced table players and warrant a warning; however, a skilled player might only need to use the trick once to accomplish their goal.
Skillful cheaters have other options available to them when in a brick and mortar casino or poker club. A player looking to get an advantage at a ring game might attempt to introduce fake chips into the game since chips go to other players instead of the house and there is less likelihood that the counterfeits will be discovered. Collusion in ring games and tournament poker occur when players tip off their hands with clandestine gestures, allowing conspirators to raise pots in ring games and dump or consolidate chips to one player in tournament play. Since chips are limited in tournament play, the chip leader usually has a great advantage and often cheats will attempt to fold over or pass chips to a schemer in an attempt to dominate the tournament. Cheating doesn’t always occur exclusively between players, often times a cheating player is in cahoots with the house, or a dealer, to beat other players. Since most players usually consider the dealer to be a neutral professional, they often overlook the possibility of the dealer fixing the deck to feed an accomplice winning hands for a cut of the profit, leaving it up to the establishment to catch the cheating. Overall, anyone cheating at a brick and mortar casino or card club is engaging in extremely risky behavior since if caught they can face strict civil and criminal legal consequences.
When a player feels they have been cheated at a brick and mortar poker club, by either the club or players in the club, a civil action is their best chance to recover their losses. In Vu v. California Commerce Club, Inc., plaintiff was a regular at the California Commerce Club, a lawful brick and mortar card club, where he played variations of poker and over a two year period lost approximately $1.4 million. Over two separate instances plaintiff contends that he was cheated out of $120,000 by two players who colluded by signaling their hole cards and betting accordingly. Furthermore plaintiff claimed that a poker manager for the club funded play for other players and tipped them off with vocal and hand signals, as well as marked cards. Plaintiff asserted causes of action for fraud, conversion, conspiracy to convert, and breach of a covenant of good faith and fair dealing against the defendants. With plaintiff lacking sufficient evidence, the court held for defendants stating that the defendants could not be held liable for the general gambling losses of the plaintiff. This case demonstrates how difficult it is for a plaintiff to show proof that they were cheated in a brick and mortar establishment.
A cheater in a lawful brick and mortar casino or club is typically also subjected to criminal charges, as statutes are usually in place to protect the public and casinos from this type of behavior. In U.S. v. Ly, defendants, a group of card cheats, conspired with dealers at three Las Vegas hotels (MGM Grand, Desert Inn, and Hilton) to engage in false and trick dealing. Their scheme worked and defendants were able to predict upcoming hands with accuracy and as a result they were able to cheat the casinos out of approximately $768,000. Thanks in part to surveillance footage of defendants engaging in cheating at the hotels, defendants were charged with fraud, conspiracy to defraud, interstate travel for purposes of racketeering (they did not reside in Nevada), money laundering, and aiding and abetting, The court found defendants guilty on all counts and held each defendant jointly and severally liable for the money while also remanding the case for further sentencing. It is likely that the defendants in this case were subject to fines as well as some time in prison.
Cheating in a brick and mortar casino or card club is unwise considering the massive security and surveillance team used to watch every move players make. In State v. Malmstrom, defendant was charged with cheating at a Harrah’s Casino poker table in New Orleans in violation of Louisiana statute § 4-664 which states that any person who by trick or sleight of hand performance, or by a fraud or fraudulent scheme, wins or attempts to win money or property or a combination thereof, or reduces a losing wager or attempts to reduce a losing wager in connection with gaming operations, shall be imprisoned at hard labor for not more than five years or fined not more than $5,000 or both.” While engaged in a lawful game of poker, defendant was caught by casino surveillance distracting the dealer of the game so he could increase a wager to win $156. The court found defendant guilty and the cheater was fined and sentenced to serve fifteen months at hard labor.
Online poker has taken the poker world by storm over the past few years, making it possible for players to get the best of both home game and brick and mortar style play. Online poker combines the organization of brick and mortar, by providing a bank, dealers, chips, and tables with sometimes tens of thousands of players looking for a game, with the casual features of a home game that allow the player to participate without having to physically leave the comfort of their own home. The legalities of online poker are hazy at best, with the activity being legal in some states and illegal in others. Several states, including Illinois, Louisiana, Nevada, Oregon, South Dakota, Utah, and Wisconsin, have expressly outlawed Internet gambling while the rest of states have not been as clear. The federal government is also perplexed when it comes to the online gambling and Congress is looking to pass legislation to either restrict, regulate, or ban the activity altogether. With online poker in a legal grey area in the majority of the country, players are taking advantage of technology to cheat like they’ve never cheated before.
The $10 billion online poker world and its lack of regulation, surveillance, and identity is the perfect stomping ground for poker cheats of all varieties. With a computer and Internet connection, a poker cheat can log onto a poker site from anywhere in the country to strike unsuspecting honest players. To start playing on an online site, often all a player needs to do is create an alias and deposit funds through a third party banking site. Personal information such as name, address, phone number, and date of birth is usually not required by the site, and if it is, it is almost never verified. While poker sites often track a players internet protocol (“IP”) address to watch what computers players are coming from, cheaters can easily get around this hurdle by masking their Internet identity by spoofing , reassigning, or using multiple IPs. There is now conceivably millions of online poker players with access to old cheating methods as well as technologically advanced new ones, making Internet poker more dangerous than ever.
One of the easiest and most common methods of cheating at online poker is collusion with other players. Most poker sites offer tables that seat anywhere from two to ten players at a time and colluders typically like to take anywhere from two to five seats at a table. Player collude at an online table for the same benefits they seek to gain in a live home or casino game, however it is much easier for them to share information since they aren’t physically sharing the poker table with the other players. Colluders might be in the same physical room when cheating other players or they may be using an instant messaging program or telephone to share cards and discuss strategy. For the poker cheat without any confederates, computer software is available to allow the lone cheater to set up multiple accounts and then physically play them simultaneously at the same online table. Another frequent online cheating method is “cutting the cord,” which occurs when a player terminates their internet connection in the middle of a hand. The goal of cutting the cord is to allow the cheater’s hand to remain in the game without having to make any further calls or bets, a sort of pre-mature unilateral all-in, however online sites are getting wise to the cutting the cord cheat and are beginning to limit them in.
Online poker has also created a new playground for technology savvy cheaters. Software hackers have claimed the ability to see other players down cards and crack shuffling algorithms to allow them to know what cards will appear face up, but poker sites argue that they are always a step ahead. One software cheat, available online for a modest price, allows a player to keep endless statistics on every hand and every player encountered on the Internet, allowing a player to study and expose weakness in another player’s style. Advanced tracking software can also be used to follow players and tables when the cheater is not online, so statistics can be compiled around the clock whenever opponents are at the tables. While some may argue that tracking statistics is not cheating, it should be pointed out that it would be impossible for one player to accumulate as much information as a computer program at a tournament, such as the World Series of Poker, that takes place in a brick and mortar casino. Regardless of whether statistics tracking is seen as cheating or just a great advantage, other methods such as the use of bots are clearly a poker rule violation. Bots are computer programs that take the place of the human behind the computer and play poker for the player, sometimes for 24 hours straight. A cheater can configure a bot to crunch the probabilities of the hand and call, bet, fold, or raise depending on the chance of winning. Basically, with statistic trackers and bots, a poker cheater doesn’t even have to be playing poker to be cheating at it.
With all of these methods of cheating available for online poker, it may be difficult to ascertain when one is sitting at a table with a crook, but what if a player did discover they were being cheated, what legal actions could they take? In order for a person to bring a civil action, two elements are crucial; someone to sue and a court to hear the case. Even if an online poker cheat admitted to cheating to the other players at the online table, it would be nearly impossible for the victims to obtain the cheaters name, address, and other information necessary to bring the action. Assuming the cheater refused to volunteer their identity, victims could attempt to gain this information from the online poker site, but as mentioned before, these sites do not always require or verify these vital pieces of information. Furthermore, even if the cheater was tracked down to an apartment in Los Angeles, would a court even hear a case regarding quasi-legal online gambling? The answer is that there is no answer because it hasn’t happened yet, but assuming that the state hasn’t expressly outlawed online poker, a court may handle this type of case the same way it would handle a civil action for fraud or conspiracy to defraud in a home game of poker.
As far as criminal charges for online poker cheats go, there are no statutes or laws in the United States specifically related to cheating at online cards. It seems more likely that a poker cheater would be criminally liable for simply playing online poker, rather than for cheating at it. Even in a state such as California, where online poker is tolerated and poker cheaters can be prosecuted regardless of whether they play in casinos, clubs, or home games, law enforcement agencies have no authority to prosecute an online poker player for the specific act of cheating. Until the United States government takes a stance on online poker and perhaps sets up a commission to supervise and scrutinize online gaming operations, victims of online cheating will have limited legal recourse.
A player who cheats at online poker may not have much to fear from the law, but there are other non-legal consequences that can be imposed by the poker sites. Party Poker.com, the largest online poker destination, has terms and conditions that the player implies consent to when they begin playing on the site. According to the terms and conditions, a player that is found in breach of any rule or regulation of Party Poker.com is subject to account termination and money forfeiture. Furthermore, the site states it will share the breaching player’s identity with other online gaming sites, banks, credit card companies, and other appropriate agencies. Whether actions like these taken by a gaming site are fair and legal is for investigation in another article; however, these consequences are intimidating considering that a player has little or no legal recourse if they are wrongly accused of cheating and their money is seized by the online site dictatorship.
Once a player is informed on the methods a poker cheater uses in homes games, brick and mortar casinos and clubs, and online, it is next necessary to learn basic countermeasures that can be used to protect the sanctity of poker. When participating in a home game, especially in a state less tolerant of the activity which is less likely to grant relief in a court of law, players should keep the game between friends and close acquaintances, dismissing strangers that come in pairs or that are only in town for the night. Instead of relying on an older deck of cards that may have been tampered with, make sure more than one unopened deck of cards is available and inspected immediately prior to play. To maintain organization, any specific rules or variations should be discussed prior to play and the group should be in agreement about betting limits or tournament rules. All players should be vigilant of bizarre play or teamwork occurring at the table and at no time should the deck leave the sight of the group. To be extra safe, players should avoid consuming alcoholic beverages, as they have been known to make an honest man cheat, however if doing away with alcohol is impossible, dealing from a shoe and using an automatic shuffler will help guarantee the validity of the game.
When playing at a brick and mortar casino or card club, players usually have a dealer, pit boss, security force and surveillance system to assist them in hunting down cheats. Regardless of the extra help, players should take care in looking at their down cards as poker cheats, either at the table or looming behind, are also be interested in taking a peak. At all times a player should keep their chips organized and located safety in font of their seat and when involved in a hand, a card protector (such as a chip) should be used to keep the cards from flipping over or being accidentally grabbed by the dealer. If during the game a player suspects another player is cheating, the player should not confront the cheater but instead step away and inform a pit boss or security officer. If a player suspects the dealer or an in-house person is cheating them, they should take down as many details about the situation as possible and then report the situation to the jurisdiction’s proper agency or gaming commission in a timely fashion.
Online poker is by far the most difficult area to avoid cheaters. If a player is going to play online they need to understand that everything they deposit into the online account could be taken without cause or recourse and that they likely have no legal protection from cheaters. Online players should be watchful over who is sitting at their tables and, if possible, players should search for their opponents elsewhere on the site to avoid opponents sitting at multiple tables with the same players. The best way to avoid cheaters online is to play heads up or at two player tables, that way collusion is impossible and one knows there is a human player on the other side. If an online player suspects they have been cheated at a table, it is imperative that they do not confront or accuse the player (usually done by typing into a community chat box) as this can cause the accused to retaliate with false claims about you to the online site, possibly disrupting the honest player’s account with a lengthy investigation. If a player suspects online cheating, they should take down as much information about the situation as possible and contact the poker site either by telephone or email as soon as possible. In general, if a player is going to engage in online poker, they should steer clear of tempting bonuses and freebies from newer and smaller sites and focus on the larger and more established sites in the Internet. –The Legal Consequences of Cheating At Poker by Richard C. Hannegan, J.D. (2006) firstname.lastname@example.org *[Portions Removed]*