Final Appeal

“Don’t mind if I do. Party on, Safer.” Artie claps Ben on the back and walks toward the back row.

“Please rise!” shouts the crier, standing behind a desk at the side of the dais. “The Honorable Judges of the United States Court of Appeals for the Third Circuit.”

A concealed door to the left of the dais swings open, and the judges parade out, resplendent in their swishing black robes. The federal courts decide appeals in three-judge panels, inviting comparison to the three wise men or the three stooges, depending on whether you win or lose. First comes the Honorable Phillip Galanter, tall, thin, and Aryan, with slack jowls like Ed Meese used to have and blond hair thinning to gray. He’s followed by a wizened senior judge, the Honorable Morris Townsend, shuffling slowly along, and finally the Very Honorable and Terribly Handsome Chief Judge Armen Gregorian, my boss.

“Armen looks good up there, doesn’t he?” Sarah says, crossing her legs under the skirt of her sleek slate-gray suit.

He sure as hell does. Towering over the two of them, Armen grins down at the crowd in an easy way. His complexion is tinged with olive; his oversized teeth remind me of an exotic JFK. There are precious few perks in working for the judicial branch, and a boss who looks like a sultan is one of them. I lean near Sarah’s perfumed neck and whisper, “I got first dibs.”

“In your dreams.”

“But you’re too young for him.”

She smirks. “Too young? Is there such a thing?”

“Bitch.” I elbow her in the ovary.

“Oyez! Oyez!” calls the crier. “All persons having business with the United States Court of Appeals for the Third Circuit are admonished to draw near and give their attention, for this court is now in session. God save the United States and this honorable court. Be seated, please.”

The panel sits down and the first appeal begins. Ben takes notes on the argument by the appellant’s lawyer, who had his civil case dismissed by the district court ten floors below us. The young lawyer has been granted ten minutes without questions from the judges to present his argument, but he’s blowing them fast. Armen’s forehead wrinkles with concern; he wants to cut to the chase, but this poor guy can’t get out of the garage.

“A Third Circuit virgin,” Ben says, with the superior snicker of someone who has never done it. I fail to see the humor. I know what it’s like to stand before a judge when the words you memorized don’t seem to come and the ones that do roll down backward through your gullet and tumble out your butt.

“I guess my time is up,” the lawyer says, obviously relieved to see the Christmas light on the podium blink from yellow to red. He thinks the hard part’s over, but he’s dead wrong. The light turns green again. Go!

“Who wants the first question?” Armen says, looking over his colleagues on the panel. He flicks a silky black forelock out of his eyes; he always needs a haircut, it’s part of his sex appeal. “Judge Galanter?”

“Counsel,” Judge Galanter says quickly, “your appeal concerns the Racketeer Influenced and Corrupt Organizations Act, RICO, but I wonder if you understand why the statute at issue was enacted by Congress.”

“It was passed because of organized crime, Your Honor.”

“The statute was aimed at extortionists, murderers, and loan sharks. The typical organized criminals, correct?”

The young lawyer looks puzzled. “Yes, Judge Galanter.”

“It prohibits a pattern of racketeering activity, the so-called predicate acts, does it not?”

“Yes, sir.”

Armen shifts in his high-backed chair.

“But your client isn’t suing mobsters under RICO, is he, counsel?” Galanter says.

“With all due respect, Your Honor, I think this appeal presents a matter of national importance. It involves the manipulation of—”

“Flower peddlers, isn’t that right, counsel? Not mobsters, not extortionists, not killers. Florists. The ad says, Nothing but the Best for Your Wedding or Bar Mitzvah.” He chuckles, as does the gallery. They have to, he’s an Article III judge, as in Article III of the Constitution; if you don’t laugh, the FBI shows up at your door.

“Yes, the defendants are floral vendors.”

Galanter’s thin lips part in an approximation of a smile and he arches an eyebrow so blond it’s almost invisible. “Floral vendors? Is that a term of art, counsel?”

The gallery laughs again.

“Florists,” the lawyer concedes.

“Thank you. Now, carnations are the bulk of your client’s business, is that correct?” Galanter flips through the appendix with assurance and reads aloud. “‘Pink ones, red ones, even the sprayed ones,’ according to your client’s affidavit. Although I see sweetheart roses did well in February.” He pauses to look significantly at Judge Townsend, but Townsend’s eyes are closed; God knows which way he’ll go on this case. He thinks people enter his dreams to have sex with him, so it’s impossible to tell right now if he’s pondering RICO law or watching lesbians frolic.

“They’re a group of florists. A network of florists.”

“Oh, I see, a ring of florists. Do you think Congress intended even a ring of florists to be covered by this racketeering statute?”

Armen hunches over his microphone. “Counsel, does it really matter what they sell?”

“Go get ’em, boss,” I say under my breath.

“Sir?” says the lawyer. He grabs the side of the podium like a kid stowed away on a sinking ship.

“It wouldn’t make sense to have a rule of law that turned on the occupation of the defendant, would it?”

“No, sir,” says the lawyer, shaking his head.

Armen leans forward, his eyes dark as Turkish coffee. “In fact, after what the Supreme Court said in Scheidler, even a group of abortion protestors can be subject to RICO, isn’t that right, Mr. Noble?”

Galanter glances over at Armen like a jockey on a Thoroughbred. “But Chief Justice Rehnquist made clear in Scheidler that there was a pattern of extortion, of federal crimes. Where’s the federal crimes with the floral conspiracy? Florists wielding pruning shears? Gimme that money or I snip the orchid?” Galanter shudders comically and the gallery laughs on cue.

“But they do threaten society,” the lawyer says, fumbling for the rigging. “Mr. Canavan signed a contract, and they didn’t send him any orders. They intended to drive Canavan Flowers into bankruptcy. It was part of a plan.”

“Your client did file for Chapter Eleven protection, didn’t he?” Armen says.

Suddenly Judge Townsend emits a noisy snort that sounds like an ancient steamboat chugging to life. Armen and Galanter look over as Judge Townsend’s heavy-lidded eyes creak open. “If I may, I have a question,” he says, smacking his dry lips.

“Go right ahead,” Armen says. Galanter forces a well-bred smile.

“Thank you, Chief Judge Gregorian,” Judge Townsend says. He nods graciously. “Now, counselor, why are you letting my colleagues badger you?”

The smile on Galanter’s face freezes in place. The gallery laughs uncertainly.

“Sir?” the lawyer says.

Judge Townsend snorts again and lists gently to the starboard side. “As I see it, the question with this new statute is always the same.”

Ben whispers, “New? RICO was passed in the seventies.”

“The question is always, How is this case different from a case of garden variety fraud? How is it different from other injuries to one’s business, which we decide under the common law?” Judge Townsend waves his wrinkled hand in the air; it cuts a jagged swath. “In other words, have you got some precedent for us? A case to hang your hat on?”

The lawyer reads his notes. “Wait a minute, Your Honor.”

Judge Townsend blinks once, then again. Galanter smooths back the few hairs he has left. The lawyers in the gallery glance at one another. They’re all thinking the same thing: Nobody tells the Third Circuit to wait a minute. The answers are supposed to roll off your tongue. The case is supposed to be at your fingertips. Better you should pee on the counsel table.