810 Seventh Avenue, Suite 620, New York, NY 10019
212.446.2346  ·  maf@fernichlaw.com

Law Office of Marc Fernich

Results

For the subject of a criminal probe or target of an indictment, his first encounter with the justice system can be a disorienting and overwhelming experience. Choosing the lawyer who will champion his cause and navigate the ordeal is the single most important decision a suspect or defendant can make.

Yet because the situation is so foreign, the choice too often amounts to a shot in the dark.

Some prospective clients hire the biggest name they can afford and hope for the best. But the name may not be current or deserved, and the rock star lawyer may pawn off the work on subordinates.

Other clients go the opposite route, trying to economize, wish the crisis away or manage it themselves. They pick the cheapest option or call in business and personal attorneys with no criminal expertise, mistaking their plight for some ordinary civil dispute or glorified misunderstanding that they can buy off or talk around.

By the time these unfortunates learn the ropes and realize their well intentioned blunders, it is often too late and they are already convicted.

When clients hire Fernich, they get a proven commodity – a tireless advocate who has won improbable victories and broken new legal ground in courts nationwide, including the U.S. Supreme Court and the New York Court of Appeals, the state’s highest court.

Critical to Fernich’s success is the interplay between his trial and appellate practices. They complement and reinforce one another, conferring a unique perspective that shapes his approach to each and sharpens his performance in both.

As an active participant in highly publicized trials, Fernich understands the practical consequences of legal error. That insight helps him identify irregularities in trial records and explain their harmful effects in vivid, compelling terms – valued benefits when he writes and argues appeals.

On the flip side, Fernich’s vast knowledge of the law gives him a distinct leg up in representing defendants at trial. Among other advantages, it allows him to frame bold objections, craft innovative arguments, and win key rulings on substantive, procedural and evidentiary points.

In short, prosecutors, adversaries and judges know Fernich’s track record, so they trust what he says and respect him when he says it.

His carefully nurtured reputation for integrity, candor and credibility assures that clients get the best possible results: avoiding prosecution if an investigation is pending; securing dismissal, acquittal or a favorable plea if charges are filed; obtaining a reduced sentence or appellate reversal in the event of a conviction; or achieving an optimal resolution in civil controversies.

Some of Fernich’s signature cases and career highlights:

U.S. Supreme Court

Boyle v. U.S., 556 U.S. 938 (2009)
Established that “structure” – entailing a common purpose, relationships among associates and longevity – is an essential element of a racketeering enterprise.

See also Wagner v. U.S., 544 U.S. 958 (2005) (vacated life sentence, in racketeering, drug and robbery prosecution, for impermissible judicial factfinding).

Federal Appeals Court – Second U.S. Circuit Court of Appeals (Manhattan)

U.S. v. Huggins, 15-1676-cr, __ F.3d __, 2016 WL 7336583 (Dec. 19, 2016)
Voided 10-year fraud sentence, improperly enhanced for phantom fiduciary role and bilking financial institution.

U.S. v. DiMattina, 571 F. App’x 50 (2014)
Reversed jury conviction for extortion and dismissed indictment, on rare government confession of legal error, for failure to prove defendant “obtained” property as U.S. Supreme Court construes the term. Defendant was a renowned caterer and reputed mob associate.

U.S. v. Haynes, 729 F.3d 178 (2013)
Upset international drug smuggling conviction and 16-year sentence for combination of errors leading to fundamentally unfair trial. Errors included defendant’s unwarranted appearance in shackles; judge’s failure to investigate credible claim of jury misconduct; judge’s faulty dynamite charge to deadlocked jury; and her improper admission of expert and lay opinion testimony.

U.S. v. Gupta, 699 F.3d 682 (2012)
Wrote friend-of-court brief on behalf of two criminal bar groups, and presented argument before rare 15-judge panel, reversing attorney’s immigration fraud conviction for exclusion of public from jury selection.

U.S. v. Mahaffy, 693 F.3d 113 (2012)
Reversed stock fraud convictions, after two lengthy trials, for suppression of exculpatory evidence and ailing jury instructions on deprivation of honest services theory.

U.S. v. Cain, 671 F.3d 271 (2012)
Reversed RICO convictions, despite trial lawyers’ failure to object, for defective jury charge on statute’s “pattern of racketeering” element.

U.S. v. Perrotta, 313 F.3d 33 (2002)
Reversed extortion conviction, after two jury trials, for lack of federal jurisdiction, i.e., want of connection to interstate commerce.

U.S. v. Bradbury, 189 F.3d 200 (1999)
Vacated 86-month kidnapping sentence for faulty obstruction of justice enhancement and misuse of immunized admissions made during government debriefing interviews.

U.S. v. Allen, 155 F.3d 35 (1998)
Vacated summary judgment, in government-instituted civil action, for inadequate proof that waste carters “conducted” a racketeering enterprise – i.e., participated in its operation or management.

U.S. v. Mittelstaedt, 31 F.3d 1208 (1994)
Reversed seven mail fraud counts against Southampton and Westhampton consulting engineer, after month-long trial, for errant jury instructions on right to control public spending, improperly allowing conviction for mere fiduciary breach.

See also U.S. v. Boyle, 283 Fed. Appx. 825 (2007) (vacated 13-year racketeering and bank burglary sentence for violation of Constitution’s ex post facto clause); U.S. v. Savarese, 404 F.3d 651 (2005) (overturned enhanced robbery sentence for misapplication of conspiracy Guideline); U.S. v. Davidson, 26 Fed. Appx. 64 (2001) (upset nine-year fraud sentence for unfounded money laundering enhancement); U.S. v. Zagari, 111 F.3d 307 (1997) (voided environmental fraud sentence for flawed perjury and leadership adjustments); U.S. v. Gigante, 94 F.3d 53 (2d Cir. 1996) (won landmark due process ruling authorizing sentence reductions where aggregated enhancements, imposed under low preponderance of evidence standard of proof, inflate presumptive Guidelines term).

Federal District Courts

U.S. v. Levine (Sclafani), 11 CR 345 (JBW) (E.D.N.Y. 2016) (Brooklyn)
Toppled 14-year drug sentence due to shoddy lawyering, cutting it by more than four years, to under 10.

Alcantara v. Hollingsworth, No. 15 CV 1543 (RBK) (D. N.J. May 5, 2016) (Camden)
Advanced by eight years release date for inmate serving combined 24-year drug term, due to legal errors and miscalculations by federal Bureau of Prisons in implementing sentences imposed.

Krasner v. RAHFCO Funds LP, et al., No. 11 CV 4092 (VB), 2012 WL 4069300 (S.D.N.Y. Aug. 9, 2012) (White Plains)
Dismissed civil stock fraud complaint, against accountant and accounting firm, for failure to particularly plead false representations or plausibly establish a strong inference of fraudulent intent.

Dragonetti v. Terrell, No. 11 CV 2007 (NGG) (E.D.N.Y. 2011) (Brooklyn)
Filed habeas corpus writ prompting restoration of good time credit and release from federal lockup after Bureau of Prisons wrongly classified petitioner as an escapee due to an intervening arrest while confined in a halfway house.

U.S. v. Simels, No. 08 CR 640 (JG), 2009 WL 1924746 (E.D.N.Y. July 9, 2009) (Brooklyn) Won rare order suppressing bugged jailhouse conversations, between lawyer and client in attorney visiting room, for failure to properly minimize the interception of privileged and extraneous communications.

U.S. v. John A. “Junior” Gotti, No. 04 CR 690 (SAS) (S.D.N.Y. 2004-06) (Manhattan)
Served as co-counsel for accused mob boss, scoring celebrated acquittal and mistrial on racketeering, fraud, extortion and money laundering charges. Discredited significant government witness, unshaken in several prior trials, by surgical cross-examination.

Sanchez Hernandez v. City of New York, et al., No. 00 CV 9349 (SAS) (MHD) (S.D.N.Y. 2000-01) (Manhattan)
Won six-figure civil rights settlement for man falsely arrested on bench warrant, and wrongly imprisoned for 17 days, in case of mistaken identity.

U.S. v. Ayala, 75 F. Supp. 2d 126 (S.D.N.Y. 1999) (Manhattan)
Won steep sentence reduction – from life down to 12½ years, just above the 10-year minimum – for racketeering, drug and extortion offender’s exceptional family circumstances. Persuaded judge to apply heightened reasonable doubt standard of proof, rather than bare preponderance of evidence, when weighing requested sentence boost for uncharged conduct, a rarity at the time.

New York State Courts

People v. Golb, 23 N.Y.3d 455 (Court of Appeals 2014) (Albany)
Penned friend-of-court brief for criminal bar group in high profile case stemming from online academic controversy over origin of Dead Sea Scrolls. Case led New York’s top court to strike down aggravated harassment law – punishing speech merely intended and likely to annoy – as unconstitutionally vague and overbroad, offending First Amendment.

People v. Cortez, 22 N.Y.3d 1061 (Court of Appeals 2014)
Broke fresh legal ground in convincing three of six presiding judges to endorse statewide criteria for eliciting informed client waivers of attorney interest conflicts, analyzing evidentiary admissibility of evil thoughts spurring no physical action.

People v. Colon, 13 N.Y.3d 343 (Court of Appeals 2009)
Wrote friend-of-court brief for two criminal bar groups reversing 20-year-old murder convictions. Helped persuade judges that prosecutor elicited false testimony, suppressed material evidence impeaching a key witness, and withheld exculpatory leads.

People v. Silverberg, 771 N.Y.S.2d 274 (1st Dept. App. Term 2003) (Manhattan – Intermediate Appeals Court)
Reversed witness tampering and harassment convictions, preserving defendant law student’s ability to practice. Successfully argued that asking a complainant to “drop charges” does not constitute tampering under New York law.

Other Courts

U.S. v. Bush, U.S. Military Court (D.C. Navy Yard Aug.-Oct. 2013)
Co-procured dismissal of sex assault and false statement charges preferred against Naval Academy football player. After adversarial preliminary hearing lasting one full week, a military judge found no reasonable grounds to refer the charges for trial by court martial. An admiral and his legal counsel concurred, throwing out the case against Bush.

State v. Iadipaoli, Ind. No. 05-02-441, 2010 WL 26507 (N.J. Super. A.D. Jan. 7, 2010) (Newark – Intermediate Appeals Court)
Remanded pedophilia case for hearing on trial counsel’s incompetence, resulting in conviction’s reversal.

Bullet