Annals of Justice: A Sentence for Structuring By steve lacheen

hanging times redefine concepts, in the practice of law no less than in the world of fashion. In that simpler time of yes- teryear, a “win” in a criminal case meant an acquittal. Later, the concept broad- Cened to include a sentence of probation rather than im- prisonment — and later still, any sentence other than straight imprisonment. Finally, today, the concept has been expanded almost to the point of nullification by encompassing any sentence that is less onerous than the maximum called for by the applicable sentencing guidelines.

28 thethe philadelphiaphiladelphia lawyerlawyer fallfall 20082008 © images.com/ludvik glazer-naude Somerset Maugham wrote that the line not exactly feigned, was simply one arrow at sentencing. between love and hate is as thin as the ra- in a large quiver of manipulative devices. We decided we did not want to petition zor’s edge. Thinner yet may be the line be- I became even more annoyed at his habit to withdraw Mark’s guilty plea, because the tween winning and losing; so thin in fact of ending every conversation with the sin- government would then be free to charge that what appears at first to be either may cerely expressed wish that I have a “very, him with the tax offenses that they had turn out to be the other. An apparent loss very good day,” or weekend, or holiday, as agreed not to prosecute as part of the plea may, when re-examined through the prism the calendar dictated. Most annoying of agreement. The motion I filed sought only a of time, be revealed to have been a victory all, however, was his habit of asking me re-sentencing based on the ground that the of sorts; and, no less true that, what first questions, the answers to which he already sentence had been imposed without con- appears to be a winning result may in due knew, as a mechanism for testing whether sideration of the recent amendment to the (or undue) course, turn out to be the op- I knew what I was talking about. Represent- guidelines. posite. “Winning” is not only protean but ing him, I thought, was going to be a real To bolster our argument for relief, I in- relative. challenge. And I was right. cluded an allegation that, after the date of A case in point: Early in my practice, At that first meeting, the rabbi did most of Mark’s sentencing, the U.S. Supreme Court I succeeded in obtaining a reversal of the the talking. He advised that Mark had pled had decided (in the case which I had argued) most serious of several counts of conviction guilty to one count of illegally “structuring” that the “willfulness” element of the offense for a defendant, 313 A.2d 770 (Pa. Super. currency deposits to evade IRS reporting of structuring required knowledge on the 1973), and then convinced the judge to re- and had been sentenced to serve fifteen part of a defendant that he was engaging in sentence him to probation even though his months in prison. He was awaiting desig- unlawful conduct. Since Mark had, during prior record merited incarceration. Within nation to an institution; his self-surrender his plea colloquy, specifically denied that he a fortnight of my client’s release from cus- date was about a month away. What they had known structuring was illegal, his plea tody, his wife had, in the vernacular of the wanted was to improve Mark’s situation would, if Mark chose to do so, be subject to day, “cleaned his ear with a shotgun.” In by reducing the sentence in any way pos- attack on that basis. I was, of course, hoping retrospect, a loss in the courtroom would sible. Toward that end, I agreed to review the court would consider that factor as an ad- certainly have extended and perhaps even the plea agreement, presentence report and ditional reason to reduce Mark’s sentence to saved his life. sentencing transcript in his case. one of probation and thereby avoid further But the clearest example of the blurring of In so doing, I discovered an error in the proceedings in which Mark would file a mo- the line between winning and losing I ever sentencing proceedings that I felt certain tion to withdraw his guilty plea. encountered occurred much more recently, would enable Mark to have his sentence But that was a serious error in judgment and involved not only a redefinition of the vacated and reconsidered. His attorney, the on my part. At the hearing on my motion to final result, but a re-assessment of numer- prosecutor, the presentence investigator, vacate and reconsider Mark’s sentence, the ous intermediate decisions along the way. and the judge had all been unaware that judge accused me of trying to bargain with The saga of Mark Simon began for me the sentencing guideline for the offense the court by saying in effect that if the court when he was brought to my office by a of structuring had been amended a month didn’t grant Mark probation, he would then Brooklyn rabbi, who had read a news report earlier to provide for the possibility of a move to vacate his guilty plea as well as his that I had obtained a reversal on appeal of a lower offense level — and resulting lower sentence. Therefore, said the judge, Mark conviction in a “currency structuring” case guidelines — in a situation in which the would have to affirm his plea before the (See, “I Meet the Supremes (For Real)”). cash deposits were not the proceeds of ille- court would consider the motion to resen- The legal problem that prompted the visit gal activity and the ownership of the funds tence him. was neither unusual nor difficult; the client had not been concealed. We argued, and argued, and argued; was both. Mark’s offense had involved his deposit- and eventually the court called upon me At first glance, Mark was an impos- ing a total of $140,000 in cash deposits of to make a decision one way or the other. I ing physical presence. Standing six feet less than $10,000 each into his own bank said we would stand firm on the motion as two inches, he looked like an athlete gone account in his own name over a seven-day filed, expecting that the judge would deny soft. He was in fact extremely soft-spoken period, and the funds had been legal income the motion, thereby creating an appropriate and polite to the point of being obsequi- in the first place. I thought we would have record for what I was sure would be a suc- ous. Not exactly handsome, he had regular an excellent chance to convince the judge to cessful appeal. But I was wrong again, and features, with high cheekbones, an east- reduce his sentence, especially since there completely surprised, when the judge im- ern European slant to his eyes, and a sly were other mitigating circumstances that mediately issued an order from the bench, smile. Coupled with a paranoiac view of prior counsel had not presented to the court vacating the sentence, marking the guilty the world, his cunning facade gave Mark an aura of inscrutability that belied his ba- sic lack of experience and dearth of knowl- edge. An apparent loss may, when re-examined Dressed in black according to the precepts through the prism of time, be revealed to have of his orthodoxy, with matching broad- been a victory of sorts; and, no less true that, brimmed black hat perched squarely atop his head, Mark projected a meek and mild what first appears to be a winning result may in due affect, and spoke to me in terms so defer- (or undue) course, turn out to be the opposite. ential as to be annoying, especially when I came to realize that his diffidence, although

the philadelphia lawyer fall 2008 29 plea withdrawn, and dismissing the indict- to waive his right to later move the court to the bench that, until such time, if ever, that ment without prejudice. And then she said withdraw his guilty plea. And so, I filed an the government proceeded with a new in- Mark was free to go. appeal to the Court of Appeals that would dictment, my appeal was premature. I told Mark and his ever-attendant rabbi were at least prevent the prosecutor from pro- myself we would at least avoid a later allega- ecstatic. Not only had the sentence been ceeding to obtain a new indictment for six tion of waiver; but in my heart it just felt vacated, the charges were dismissed alto- months or more, pending disposition of the like one more loss. gether! Their celebratory mood was quickly appeal. The prosecutor, with enough experi- unleavened, however, when I explained that Briefs were filed and the matter listed for ence under his belt to know the difference the judge’s order was only a temporary re- argument. The three-judge panel insisted between crimes and Serious Crimes, and prieve, that Mark could and certainly would on treating the matter as an appeal from the enough self-confidence not to take the be re-indicted, and that the new charges dismissal of the indictment, disregarding matter personally, knew that bringing ad- might very well encompass not only the the fact that it was the judge’s order deny- ditional tax charges might be vulnerable to structuring offense but the tax offenses ing the motion for resentencing which we an allegation of vindictive prosecution, and which the government had agreed not to had appealed. Brushing off the argument decided to re-indict Mark only on the same charge pursuant to the plea agreement. So, that my client was prejudiced by the court’s structuring charge. So, the new indictment our “win” was anything but. action because he now faced the prospect when it came, although perceived by my cli- But I still believed that Mark had been of being indicted on additional charges, the ent as a loss, was regarded by me as some- entitled to be resentenced without having panel avoided the core issue by ruling from thing of a win, since our losing appellate effort had not resulted in exposing him to greater punishment. But, in that regard, later events proved me wrong again. Coupled with a paranoiac view of the world, In due course, pretrial motions were filed, heard and denied; and the case was his cunning facade gave Mark an aura listed for trial. Jury selection took less than of inscrutability that belied his basic lack an hour, and the “twelve in the box” looked like one of those World War II cinematic of experience and dearth of knowledge. army platoons from Central Casting — one each of every ethnic stripe — without a doubt a melting pot of reasonable doubt. “I never saw a jury like this before,” I said to the prosecutor. “A miniature United Na- st * tions. I can’t imagine a more representa- 1 DEPO = 1 MONTBLANC PEN tive group.” “It won’t make any difference once they hear the evidence,” he said, with a knowing smile. You Book The Opening remarks and presentation of the government’s case took all of an after- noon. The jury was excused for the night, Depo, We’ll Bring and the court heard argument on my mo- tion for acquittal, which was denied. The court made a finding that the required ele- ment of knowledge by the defendant — that The Sword it was unlawful to break bank deposits into amounts of less than $10,000 — was sup- plied by mere proof that Mark had listed his ...well, not exactly, but the pen is mightier than occupation, on the application to open his the sword, especially when it comes to litigation! bank account several years earlier, as stock broker. Take your first deposition with Bell Reporting and I was certain that the government’s proof we’ll hand deliver a Montblanc pen to your firm. on that point was insufficient to establish the crucial element of knowledge; and so, when court convened the next morning, (215) 236 - DEPO the defense rested without putting on any Philadelphia, PA New York, NY evidence. Baltimore, MD Washington, DC Final arguments took less than an hour. My closing remarks consisted mainly www.BellReporting.com of arguing to the jury the truism that one We Never Take Your Business For Granted! and one do not make three; in other words, *Deposition must be booked 7 business days in advance, at least 3 hours long, and booked before 12/31/08; attorney must be that the government’s evidence established available to personally receive the pen on behalf of the firm; transcript charge must be paid in full. Limit one pen per client. This promotion is an ethical “giveaway” as Bell’s rates are “reasonable” and in fact are among the lowest in the Philadelphia area. We simply only two of the three elements necessary choose to return profits back to our clients (see Rules 1.5 and 1.7 of Pennsylvania’s Rules of Professional Conduct). to support a conviction, and that the court

30 the philadelphia lawyer fall 2008 would so instruct them. And the court did did not get to go to the Supreme Court. We about the restraints imposed by Mark’s pro- in fact give that exact instruction. were awaiting notice from the U.S. Mar- bation. At other times, she called to vent her The jury deliberated exactly ten shal, as to which federal institution he was anger at Mark over his refusal to seek “nor- minutes before returning with a ver- to report, when I decided, in a last ditch mal” employment. During one such call, I dict. Guilty! Wrong again. effort, to write the judge a letter, request- recalled Maugham’s analogy. The probation officer who conducted ing that she recommend to the Bureau of In less than two years following his re- the presentence investigation made it clear Prisons that Mark be designated to Boot lease from prison, Mark and his wife had that by going to trial and losing, Mark had Camp. Completion of the mandatory six- two more children. Somewhere along the forfeited the three-level reduction of his of- month commitment there would result way, I heard that he had gotten a job in tele- fense level that had been granted for his in Mark’s immediate release to a halfway marketing, and I had the unhappy thought acceptance of responsibility at the time of house, thereby cutting the prison compo- that he would somehow find himself in his initial guilty plea. The resulting recalcu- nent of his sentence from fifteen months to trouble again. lation of the guidelines called for a more se- six months. To my surprise, the prosecutor I did not, however, expect the call that vere sentence than the fifteen-month term agreed not to object, and the judge signed came from Mark’s wife one Friday morn- previously imposed. the proposed recommendation that I had ing early in the third year of his supervised But all was not lost, not yet. At sentencing, enclosed with my letter. release, to tell me that Mark had not come I argued for a downward departure based And the Bureau of Prisons complied home the night before. The police had found upon other factors — that it had been the with the judge’s recommendation. Some- her father’s car, which Mark had been driv- court itself, and not Mark, who had with- one must have thought it would be funny ing, stopped with the motor running on drawn his guilty plea; and that Mark had to send this ultra-Orthodox, overweight a street near Coney Island. A witness had never denied the facts of his case, only the Brooklyn boy to Boot Camp in the heart of told the police that the driver of the car had application of the law to those facts. Further, Pennsylvania Klan country, run by a cadre been taken away in handcuffs. Obviously, in the time that had elapsed since Mark’s of prison guards not known for their toler- neither robbery nor ransom had been the initial sentence, his wife had given birth to ance of anyone or anything, especially the motive. their first child, and was not well; and since cultural differences of individual inmates. I spent that entire Friday calling every po- they had no other help, his extraordinary To everyone’s surprise, including his lice precinct and hospital in the area, with personal responsibilities were further justi- own, Mark stuck it out. He endured the no results. Mark’s wife had no clue as to fication for a downward departure. entire grueling program, lost twenty-five where he might be, or why she hadn’t heard After considerable hesitation, the judge pounds, and “graduated” to home deten- from him. As the end of the day and the imposed the same fifteen-month sentence tion six months later. So, when all was said start of the Sabbath approached, she agreed as before. To have taken back Mark’s guilty and done, although every one of our efforts to call me the following night, or sooner if plea, and gone to trial and lost, and to have in court had been a failure, we had some- she heard anything. obtained the same sentence, seemed to me how managed to “win” a sentence reduc- When the phone rang later that same a virtual win. From my client’s standpoint, tion anyway. night, I expected to hear that Mark had been however, after almost two years of constant Following his release from custody, located, but was shocked to learn that he lawyering, he was right back where he Mark’s time under supervision of the Proba- had been found, in the Borough of Queens, started, on his way to serve a fifteen-month tion Office was a stormy one. His probation still handcuffed, shot dead. Dead at 34, leav- prison sentence. officer simply could not grasp that Mark ing a wife and three young children. Not just yet, however. We still had the spent all day, every day, engaged in prayer What offense, I wondered, could he have right to appeal the conviction based upon at his local synagogue, and he hounded committed to have motivated someone to the insufficiency of the evidence to estab- Mark to get a job on pain of facing proba- invoke the ultimate sanction — the loss of lish the mens rea required to support the tion violation charges. So Mark got himself his life? The question remains unanswered conviction. So, it was off to the Court of Ap- hired as the Shamus, or caretaker, at the because the mystery of Mark Simon’s death peals once again. synagogue, where he continued to spend remains unsolved. n Six months later, I made exactly the same his day, every day. argument to the Court of Appeals that had Mark called periodically to let me know Stephen Robert LaCheen (slacheen@ won a reversal from the U.S. Supreme he was alright and had not forgotten his concentric.net), a member of the editorial Court for the client whose victory reported obligation to pay the balance of the fee due board of The Philadelphia Lawyer, is a in the press was what had attracted Mark’s me from before he went into custody. Once partner in the law firm of LaCheen, Dixon, rabbi to me in the first place. But this time, in a while Mark’s wife called to complain Wittels & Greenberg. four of the six ears hearing the argument were not only unpersuaded, they were de- termined not to follow the Supreme Court’s lead; and so, when the opinion was handed What offense, I wondered, could he have committed down several weeks later, it read “Judgment Affirmed,” with one dissent. 85 F.3d 906 to have motivated someone to invoke (CA2, 1996). Yet another loss. I couldn’t the ultimate sanction — believe how many times I had been found the loss of his life? wrong in the same case — at least once at every turn. Unlike my client in the prior case, Mark

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