The longer the Phil Ivey vs. Borgata legal saga, in which the case has gone on for more than four years and is based on events from 2012, continues, the more focused Ivey and his attorneys have become on one very specific question: How can you be accused of “marking” cards that, by all accounts, you never touched?
The reply brief filed Monday by defendants Ivey and playing partner Cheung Yin Sun to the U.S. Third Circuit Court of Appeals not only hammers away at the issue, but clarifies even more details about how this whole scheme went down.
In short (if that’s possible), Ivey and Sun made four visits to the Borgata Hotel Casino & Spa in Atlantic City seven years ago. Ivey, a very wealthy and popular poker pro and a New Jersey native, initially sought to play mini-baccarat — a game of chance, not skill — for up to $50,000 per hand.
As any casino on Earth would do, Borgata accepted Ivey’s terms — all of them. Taking advantage of Sun’s preternatural ability to detect the tiniest of imperfections on the backs of certain playing cards, Ivey and Sun cleaned out the casino for $10 mm in those visits.
A U.S. District Court judge eventually concluded that while what the players did not constitute even civil fraud — and no criminal charges were ever filed — the conduct was impermissible anyway because, in effect, Ivey and Sun “marked” the cards by getting the dealers to reorient the direction of the cards. That led to Ivey and Sun sometimes having a large advantage by knowing roughly what the crucial first card in the game was likely to be.
When is a mark not a mark?
Ivey’s attorney, Louis Barbone, notes that even the judge called the conclusion about this being a case of marked cards “non-traditional.” Calling Sun’s unusual skill cheating is an “enormous leap,” according to the filing.
Further, “The marked card statute is a criminal statute which must be strictly construed to accomplish its purpose … The only affirmative action statutorily prohibited … is the actual marking of a card … A marked card is exactly what it sounds like — a card that has been in some way physically altered for the purpose of identifying it.”
Another point: If you alter a card by literally marking it, then you know for certain what it is. Sun’s ability is remarkable, but there is no literal mark on any of the cards, so “that is the precise anthithesis of marking.”
That’s why some legal experts give Ivey a significant shot at gaining a reversal in the Third Circuit.
As for those terms of play Ivey requested and was granted? “It is permissible for the house and the player to agree to a private pit, to a particular color and number of decks and cards, the use of a shuffling machine and even a dealer that speaks Mandarin who is able to communicate effectively with Sun,” the reply brief says.
Ivey received all of those perks.
As the reply brief continues, his attorney gets blunt — or should we say, puts his side’s cards on the table:
“Both parties to this ‘contract’ knew the underlying truth. Ivey and Sun certainly were attempting to gain ‘first card knowledge,’ and Borgata knew that. On their first day of play, Borgata’s surveillance reported just that. The surveillance supervisor believed that Ivey was attempting to gain first card knowledge, but concluded that he had not … Each side entered the game with the identical intent — to win as much of the other’s money as possible.”
Can’t plead ignorance
That conclusion cost Borgata millions — so far, anyway. (And Ivey has continued to stall on putting the $10 mm in escrow.) But the point is that there were no innocent lambs in this “game outside the game.”
“Borgata, its corporate representatives, and surveillance personnel are just as savvy, experienced and knowledgeable as Mr. Ivey,” Barbone writes. “Borgata has known for over 30 years that when it uses playing cards with patterned backs, none of them are perfect. Everyone in the industry knows that … Borgata could have used, or could have required, an ‘infinity edge,’ meaning there are no minute variances to compare because there is no pattern on the back of the playing cards.”
Let’s think about that for a moment. If Borgata had offered the tens of thousands of dollars of perks and every single detail sought except for the exact brand and style of playing cards, and Ivey balked, wouldn’t that have told the casino something?
The filing goes further, noting that within minutes on the first visit in 2012, “Sun was loudly and conspicuously declaring good cards from bad cards. Borgata heard Sun making those declarations … over four independent trips in the course of five months.”
Yet Borgata, per the filing, “assumed the risk and proceeded with the bravado that it would ultimately prevail.”
Whatever the merits of each side of the case — and frankly, it’s complicated — the latter observation is difficult to dispute.
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