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I Meet the Supremes (for Real)

by Steve LaCheen

Fall 2001, Vol. 64, No. 3

I knew argument in the U.S. Supreme Court often involves legal history, legislative policy, and an exegesis on existing law and hypothetical long-range changes that might be wrought by the Court's decision; for none of which was my personal forensic style well suited.

I have previously written about my first experience with the United States Supreme Court in Pennsylvania v. Mims, a case in which I had been appointed to represent a successful appellant whose conviction had been reversed by the Pennsylvania Supreme Court, from which the District Attorney filed a petition for certiorari in the U.S. Supreme Court. The U.S. Supreme Court reversed the Pennsylvania Supreme Court "on the papers" without even granting argument, a decision that still lives in infamy among the defense bar. Not only did I not get to argue the case, but I had made bad law in the bargain. [See "I Meet the Supremes (Almost)," Fall 1997]

Fifteen years later, I got another shot at the Supremes; this time, on behalf of a defendant whose federal conviction for the offense of "structuring" had been affirmed by the Ninth Circuit and whose petition for writ of certiorari had been granted hearing by the Supreme Court. This time, I actually got to argue before the Court. And my client, whom I had never met and who never paid me a dime, got his name in the record books. Like Escobedo and Miranda, his name is now cited over and over again by defendants, invoking the Supreme Court's defense-favorable decision in his case, hoping it will produce the same results in theirs.

How this came about was the result of an amazing concatenation of circumstances. I had represented Ron Shirk, a businessman who had been charged with tax evasion, structuring and related offenses in Federal District Court in Harrisburg. The structuring charges were based upon proof that he had broken larger amounts of cash into deposits of less than $10,000 each, so as to avoid application of an IRS regulation that required the bank to file a Currency Transition Report for cash transactions in excess of $10,000.

The government's case rested upon proof that my client knew of the IRS regulation, which required the bank to file such reports and intentionally acted so as to avoid its effect. The defense argued that such evidence was insufficient and that, in order to convict, the government had to prove a third element: that the defendant knew his actions were unlawful; that is, that he had evaded a known legal duty not to prevent the bank from filing the CTRs.

Following trial, my client was acquitted of all the tax counts but convicted of the structuring charge. After denial of post-trial motions and imposition of sentence, the case was appealed to the Third Circuit Court of Appeals, which affirmed the judgment of conviction and actually reversed the trial judge's grant of a downward departure in imposing a sentence below the guidelines, holding he had no legal basis to do so. We petitioned the United States Supreme Court for a writ of certiorari.

Within two weeks of filing the petition, I received a telephone call from a Washington, D.C., attorney. He informed me that two defendants whose federal conviction for structuring in Nevada, affirmed by the Ninth Circuit, had already been granted argument on their petition for certiorari by the U.S. Supreme Court. Their attorney had contacted his law firm, which held itself out as having expertise in Supreme Court appeals, to discuss retaining them to handle the briefing and argument of the case.

The problem was that the defendants in that case, a husband and wife named Ratzlaf, were unable or unwilling to come up with the necessary fees for Supreme Court representation. The attorney had, therefore, decided to call me to ask whether my client would pay him to argue the Ratzlafs' case, because both cases involved the same issue, and the decision in their case would be binding upon our case as well. Since my client's case would never be argued anyway, but simply held in abeyance pending the disposition in the Ratzlaf case, my client had everything to gain by paying their fees; and he wanted Ratzlaf to talk to my client with that in mind, if it was OK with me.

What could I do but agree. Only a "dog in the manger" would have done otherwise. I could hardly deny the request without possibly jeopardizing my client's case as well as the Ratzlafs'; so I provided the lawyer with Ron Shirk's telephone number, and I told Ron to expect the call and why.

The next thing I heard from my client was that he had agreed to pay for Ratzlaf's brief and argument on one condition; that condition was that the brief and argument for Ratzlaf would be handled by me. So, the Washington lawyers had outfoxed themselves; their request had been granted, but not the way they had sought.

This turn of events had come as a shock to me, and I had great trepidation about undertaking a Supreme Court case, for several reasons. First, I had never fully briefed a case in the U.S. Supreme Court let alone argued one; and, second, my prior commitments made it absolutely impossible for me to meet the Supreme Court's strict and inflexible briefing schedule. Further, I was not thrilled about the prospect that the decision in Ratzlaf's case would be binding upon our case; for the simple fact of the matter was that although Ron Shirk was a thoroughly sympathetic appellant, Waldemar Ratzlaf was exactly the opposite.

Unlike my client, who was a legitimate businessman and had deposited his own legally earned funds into his own bank account, Mr. Ratzlaf was a gambler who, when trying to pay a $150,000 debt to a Nevada casino with a bag full of cash, had been warned that the casino would have to file a Currency Transaction Report if he did so. Someone suggested that he pay the debt by check; and so, he and his wife had driven up and down the Nevada/California state line buying $9,000 bank checks with which to pay the debt. A year or so later, during an IRS audit, the purchase of those checks was discovered and, although the feds couldn't make out a tax evasion case against the Ratzlafs, they indicted them for structuring. The Ratzlafs had committed no greater offense than my client; nevertheless, while there was an aura of righteousness about my client's case, there was the odor of mendacity about theirs.

Finally, I knew argument in the Supreme Court often involves legal history, legislative policy, and an exegesis on existing law and hypothetical long-range changes that might be wrought by the Court's decision; for none of which was my personal forensic style well suited. I discussed my concerns with my client, who reassured me that he understood the situation and still wanted me to represent him to the end of the case, which had by then consumed almost three years of his life.

"You brought me this far," he said. "Without you, I would have taken my first lawyer's advice and pleaded guilty for a five-year sentence and a five-million-dollar fine. With you, I've had the ride of my life; and we'll finish it together, one way or the other." That kind of loyalty I could not deny. So, I made arrangements with co-counsel of my choice, Peter Goldberger, to write the brief, which I would argue.

Many times during the next few months I had serious doubts about my ability to argue the case. I was no constitutional law scholar, and the Justices of the Supreme Court are known for their penchant for asking questions involving first causes and last effects of every permutation of law applicable to a given situation, and every possible ramification of each, and I was deathly afraid I was going to have to answer "I don't know" to some such question posed.

Still, my client never wavered in his expression of faith in me. When I told him I didn't think I could argue in the academic or professorial style that everyone said the Court deemed obligatory, he simply told me again that I should argue the case in the way I saw fit, because I would do my best work doing my work and not someone else's.

The day for argument finally arrived. Peter G. and I had gone to D.C. the day before and had a last-minute review the previous evening that had not gone well, because I just couldn't present a full-scale dress rehearsal standing in my underwear in a drafty hotel room, an attitude that my co-counsel thought somewhat less than circumspect under the circumstances. In addition, he became extremely upset with my apparent breach of protocol when he asked to see my suit for the next day and realized that I intended to wear a brown suit and an off-white shirt rather than the traditional dark blue or dark gray suit and white shirt. By that time, I was exhausted and went to my own room, where I was sure I would never fall asleep; but I was wrong.

The next morning was one of the most nerve-wracking experiences of my life. The preliminaries involved in gaining access to the Lawyers' Room in the Supreme Court building and the debriefing by the Clerk and Deputy Clerk are terrifying. The more they tried in their courteous and kindly fashion to make the lawyers, especially first-timers like myself, at ease, the higher rose the anxiety level. I could not sit still long enough to eat breakfast. Each time I succeeded in calming myself, I would suddenly realize where I was and what I was about to do, and I could feel my heart flutter in my chest like the proverbial captive bird.

Among the helpful tips provided by the Clerk and Deputy Clerk were: How to Address the Court; When to Address the Court; Where to Stand; Why You Should Never Touch the Microphone; and, apparently most important of all, How to Address the Justices. "Never, I mean never, address them as 'Judge'; that is a no-no," we were told. At the end of the fifteen-minute debriefing, I was sure that if I tried to remember what I had been told there I would forget my argument; and, conversely, if I focused on remembering my argument, I would never remember the instructions. The Clerks were indeed kind, courteous and as helpful as possible. But at that moment in time, it was impossible to help me.

My co-counsel, who had himself previously argued before the Court, was also trying to be helpful, but everything he said to calm me down just made me more conscious of the high stakes at risk. And he did not help the situation when he said that our client and our associates would be arriving shortly; and, oh yes, he had obtained tickets for our wives as well. Everyone would be there, everyone, that is, except Ratzlaf, who was apparently unwilling to pay the airfare to attend the argument in his own case.

I had, up to that time, never invited any family members to watch me try or argue a case. I had always abjured courtroom "performance" (artlessness being the greatest art), and was concerned that I might somehow tailor what I said (or didn't say) because of their presence in the audience; and, for that reason, I had always discouraged their attendance. And now, in the Supreme Court . . . ! I just had to close my mind to the fact.

Although I had eaten little dinner the night before, and almost nothing that day, I found myself visiting the "Gentlemen's Necessary Room" a number of times that morning. On one such occasion, I was washing my hands and, looking in the mirror, asked myself with a sigh, "God, will I ever get through this?"

Imagine my surprise hearing a deep baritone voice reply, "Don't worry. You'll do fine." Far from the Divine, however, the voice had come from a toilet stall, from which then emerged the morning-coated Assistant Solicitor General who would be arguing the government's case against me.

"Don't worry," he repeated. "I was nervous my first half-dozen times, too," verbally underlining with that understatement his extensive experience, as if that would have a calming effect on me who had none.

We took our seats in the majestic courtroom, more than two stories high, all white marble, dark wood and maroon drapery. After what seemed an interminable wait, the Clerk's gavel banged and the Justices appeared all at once and took their seats. Just like that, court was in session and it was "show time."

We sat through the morning arguments, but I found it difficult to concentrate on the legal arguments in other cases because I was sure if I let my brain become involved with the issues in those cases, I would surely forget the argument I had to make in my own case, especially since I still didn't feel I fully understood the intricacies of our argument and had basically committed the brief to memory, hoping I would be able to field any difficult questions with an appropriate reference or citation.

I could not help but notice, however, that the Justices were "all over the lot" with their questions; some pertaining to the case at hand, others pertaining to history, theory, and even prognostication as to the effect a decision one way or the other would have on the flood tide of litigation a particular Justice felt would surely follow. Even worse was how easy it was for a lawyer to be sidetracked from the argument intended to be made; and, once lost, the opportunity seemed unrecoverable.

In one instance, the attorney for a petitioner seeking to overturn a death sentence had been bombarded with questions during her initial argument just at the point when the red light on the podium announced that the time for such argument had run out. The attorney had, of course, answered each question asked; to do otherwise would have been a seeming admission of a defect in her position. When she stood up to present her rebuttal after the respondent had concluded his argument, however, the Chief Justice indicated, not too politely either, that she had used up her rebuttal time in her opening remarks and had, therefore, forfeited her opportunity to present further argument! I felt sympathy for that poor lawyer, but even more for the poor devil whom the clockmeister had apparently just consigned to the grave.

Finally, after what seemed like an eternity, the Chief Justice called our case. We had already advanced to the seats immediately behind the litigants in the case just before ours when they had taken the seats at the bar, and we immediately moved up. I stood at the lectern waiting for the words, "You may proceed."

In the seconds preceding that invitation, time seemed to expand, and many thoughts swirled through my mind, none of them having to do with the argument I was to make. I was conscious, most of all, of the historical fact of the moment; that is, that whatever happened during and as the result of this argument, it was a final decision; that whatever happened would be recorded not only in the volumes of the Supreme Court Reporter, but would be reported by every legal reporting service in the country, and that my name would be connected with that decision once and for all time. I thought of the reference in Edward Fitzgerald's Rubaiyat of Omar Khayyam, that what was writ by the moving finger of time can never be erased.

I thought also, in that fleeting instant, that this was the crowning moment of thirty-six years of practice; and that, once there, I would surely never return; and, so, for me on a personal level, it was indeed also a situation that was "for once and for always." In that final instant, I turned and located my wife's face in the crowd. We exchanged smiles and I knew that whatever happened, no matter what result, the fact that we shared the moment would make a loss bearable and a win that much more sweet. I turned to face the court just as the Chief Justice of the United States addressed me by name and invited me to proceed.

One of the things that is impossible to comprehend in looking at pictures of the Supreme Court is the intimacy of the courtroom. The room, several stories high with marble walls, hung with thick maroon drapes, in which argument is presented to the nine Justices of the United States Supreme Court, sitting there in all their majesty, like the gods on legal Olympus that they are, gives no sense of the astounding intimacy of the situation.

First, the Judges do not sit nearly as high as do judges in some Courts of Appeals, where one often is required to make argument with the chin tilted at forty-five degrees so as to make eye contact with the Court. In the Supreme Court, the Justices are elevated, but only slightly. Further, the Bench behind which they sit is so wide and the tables for counsel are so close that it is almost necessary for counsel at the lectern to turn the head forty-five degrees to address the Justices at either end of the Bench. Finally, the acoustics are so good that one can address the Court in an almost conversational tone and still be heard.

"Mr. Chief Justice, and may it please the Court," I began, with the required formulaic introduction, and then I launched into my argument with the introductory statement, "This case involves the definition of the meaning of the word 'willful' in the context of a criminal statute." Surprisingly, and thankfully, the questions with which I was peppered by the Court stayed relatively focused on the case at hand and did not wander too far afield. I was, therefore, able to respond, based upon my recollection of what was in the brief, and even to refer the Justice posing a particular question to a particular case or argument in the brief that supported my position. I lost my train of thought only once, but was able to recover and loop my answer to the next question back to the point I had been trying to make so I could complete that particular link in the chain of my argument.

I completed my argument within the time allotted for my argument in chief and sat down with relief, knowing that I had protected my five minutes of rebuttal time. I had faithfully adhered to my script, and each time the argument threatened to drift off into the jurisprudential ionosphere, I was able to steer the discussion back to my particular client and his particular situation; and therefore successfully avoided being mouse-trapped into a dialectical position I would not be able to defend. I sat down to a warm handshake from my co-counsel, who whispered, "Great! You stuck to the trees and didn't get lost in the forest."

The Assistant Solicitor General then stood to present argument on behalf of the government. His argument dismissed, almost out of hand, the principal thrust of my argument, which, simply put, had been that the word "willfully" in the structuring statute required proof that the actor knew he was committing an unlawful act when he committed it. It was the government's position, argued forcibly and repeatedly, that "willfully" in this statute meant no more than "knowingly"; that is, that proof that Ratzlaf had known what it was that he was doing when he did it was enough to subject him to criminal liability if what he had been doing was in fact an offense.

Contrary to my argument that a person couldn't be presumed to know that structuring was unlawful because the act of breaking up a larger deposit into smaller deposits to avoid application of an IRS regulation was not "morally blameworthy," it was the government's position that any act of concealment from the government was indeed morally blameworthy; and, to put a fine point on the argument, anyone who had more than $10,000 in cash to deposit at any one time was probably guilty of an offense anyway; otherwise, why indeed would one want to conceal possession of the funds in question? With that, he sat down and I stood up for rebuttal.

At this point, I had no script and responded as quickly as I could to what I considered to be the most outrageous of the government's arguments, with several somewhat emotional arguments of my own.

First, I argued that prior to November 1, 1987, structuring had not even been an offense; and the government after passing the law making it an offense did everything it could to conceal from the public the fact that structuring had become a crime. I pointed out that no bank in the United States carried a warning against structuring, unlike the large easy-to-read signs warning people against carrying drugs and guns onto planes; or, as I had noticed earlier that morning, from entering federal buildings such as the Supreme Court building, where such warnings were posted on the front door. I argued that the purpose of the law was not to prevent people from structuring deposits, but to catch them doing so, and that the Department of Justice had deliberately prevented the Treasury Department from putting such warnings in banks.

Second, I argued that since structuring had not been an offense for more than 200 years before it became so, nothing in our jurisprudence advised a bank depositor that he had a legal obligation not to act in such a way so as to frustrate the filing of a Currency Transaction Report by the bank. I compared the situation to one in which a person "structures" a gift, by dividing it between December 31 of one year and January 1 of the next, so as to avoid the gift tax that would otherwise be applicable.

Third, I pointed out that, although Ratzlaf might not be a terribly sympathetic petitioner because he was a gambler, and the monies in question in his case were gambling proceeds, the same law applied to others who would be regarded as far more innocent and less deserving of such treatment than Ratzlaf. For example, I suggested the case of a legitimate businessman who, because advised to do so for the convenience of the bank, breaks down his weekly cash deposit so the bank wouldn't have to file a CTR and, although he was depositing his own legitimate funds into his own legitimate bank account with no attempt at concealment, would be guilty of this offense.

And, just so the Court would not think I was simply posing a hypothetical, I pointed out that was the exact factual situation in a case that was already pending certiorari in the Supreme Court, depending upon the disposition in this case. I had, of course, made those remarks on behalf of my initial client, Ron Shirk, who was seated in the courtroom.

Fourth, in support of my argument that "structuring" one's affairs so as to avoid taxes was not patently a morally blameworthy act, I held up for the Court to see a book that had recently been sent to me in the mail with that exact advice; that is, how to avoid audit by the IRS by keeping a low profile and doing whatever is necessary to conceal one's assets. I had started to wax eloquent, or so I thought, about the right of an individual to keep his affairs private from the government, when I was interrupted by Justice Scalia.

Leaning forward in his chair, he asked me, "But a person doesn't have to know the speed limit to be guilty of a speeding offense. Isn't that correct?"

"Excuse me?" I heard my words slip out. Then, discretion being the better part of valor, I quickly shifted gears and said, "But, that's exactly my point. The driver of the automobile has the duty to know what the rules of the road are and, whether he does or not, he's responsible if he exceeds the speed limit. There is no such duty on the part of a bank depositor, who after all, is only responsible for his own actions, and has no basis on which to know that he must conduct his own actions so as not to create a situation in which the bank will not file a CTR."

With an audible exhalation and a quick shrug, the Justice sat back in his seat, an inscrutable smile on his face.

My time had run out. The argument was over, and counsel in the next case were ready to move into our seats. We left the Courtroom and then, and only then, a feeling of exhilaration came over me the likes of which I had experienced only several times before in my life. I was warmly congratulated by all in our company. The Assistant Solicitor General who had argued on behalf of the government came over, shook my hand warmly, and said, "I told you, you had nothing to worry about. I think you just blew us away." I was taken aback even more by the fact that I received warm congratulations not only from others in the Solicitor General's office but from the Solicitor General himself. What professionals! After making a quick trip to the Supreme Court store to buy a souvenir or two, we left the building. I had climbed Everest and was walking on a carpet of air. I felt like dancing in the street, and grabbed my wife, who was as happy as I. I had faced the challenge and had done what she thought was a masterful job.

"You had them," Helen said, "you really had them. They listened to every word you said. I watched them, and they were all listening. I think you made every point you wanted to. You did great!"

With a kiss and a hug, we were on our way to lunch at Union Station and a train ride home, and total relaxation for me for the first time in several months. My client was very happy with the argument and said he didn't regret for a moment paying me to argue "that other fellow's case, especially since I noticed you snuck in a reference to my case, too. That was real good."

I had pleased everyone, myself no less than the others. That was November 1, 1993.

On January 11, 1994, my secretary buzzed me on the intercom to say that Sandy Nelson, Deputy Clerk of the United States Supreme Court, was on the phone. Holding my breath, I picked up the receiver.

"Mr. LaCheen," she said, "The Supreme Court today handed down an opinion in the case of Ratzlaf v. U.S."

"Ms. Nelson," I squeaked, "w-w-what was the decision?"

"The Court granted your petition," she said, as calmly as she would have had she been giving me exactly the opposite news.

I was ecstatic. "We won!" I shouted, loud enough for everyone in the office to hear. "We won Ratzlaf!"

After some more conversation in which I was advised the opinion would be available by fax later that day, and, in response to my question, that the cases depending upon Ratzlaf would be decided within a week or so, I hung up the phone and quickly called everyone I could think of, starting with my wife, my client, my co-counsel and everybody else who worked on the case. Then, as a matter of courtesy, I called Ratzlaf's lawyer in Nevada to advise him so that he could advise his client that we had won.

Over the next week, when the news made its way through the legal community, I received a score of congratulatory phone calls, including one from the Assistant Solicitor General who had argued on behalf of the government, who had since left the government.

One week later the Supreme Court handed down a per curiam opinion granting certiorari in Ron Shirk's case, reversing his conviction and remanding the case to the Third Circuit for further proceedings in accordance with the opinion in Ratzlaf v. U.S.

Both defendants fared well on remand. Ratzlaf's case was dismissed in the District Court in Nevada following remand by the Ninth Circuit. Ron Shirk's case was disposed of in the Third Circuit. Since we had preserved our argument for a judgment of acquittal based on insufficiency of evidence, the Court of Appeals granted that motion and reversed the conviction with directions to the District Court to enter a verdict of not guilty.

And so, my client's tortuous journey through the criminal justice system ended a little more than three years after it had begun. He was poorer and wiser, but a great deal happier than when I met him. We have remained friends ever since, and I have heard from his wife, Bonnie, on numerous occasions that they believe their current happiness in life is based in no small part upon the journey we all took together and their faith in their religion, which gave them the strength to endure it.

In a conversation with my co-counsel, to whom I gave most of the credit for the victory, shortly after the decision, he asked if I could think of a one-sentence headline that would appropriately sum up the case. Without a moment's hesitation, I said I could. "This time," I said, "Ratz laf last, no shirk."

Postscript: Within six months of the decisions in the above cases, Congress amended the structuring statute, so as to redefine "willfully" to mean nothing more than "knowingly" in the context of that statute. But, since Congress has not yet been able to figure out a way around the constitutional prohibition against ex post facto laws, the Ratzlafs, Ron Shirk, and the defendants in dozens of other cases whose convictions had already been reversed, were unaffected thereby.