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Hey fellow criminal defense lawyers:  Read this if a judge or prosecutor has ever questioned you for fighting an issue “that doesn’t matter anyway.

Last year, I gained the release of an old federal client, Ian P., even though he was sentenced to life imprisonment without parole in 2003.  Here’s how it happened.

Way back in 2002, David Rudolf and I defended Ian at trial in federal court in Charlotte for trafficking large amounts of cocaine. The evidence was rough, but Ian had no interest in becoming a cooperating informant with the prosecution. And because he had two prior felony convictions for smallish amounts of marijuana, he was facing mandatory life without parole if he pleaded straight guilty, unless the prosecutor withdrew the prior record penalty enhancement.  She refused.

So we fought like hell at trial.  I filed a motion arguing that the jury should make the decision whether Ian actually had two prior felony drug convictions, not the judge.  The District Judge was grumpy about this motion because the Supreme Court had decided in 1998 that prior convictions were not elements of the offense that the Constitution required the jury to find. (Almendarez-Torres v. United States)

I thought the newer case of Apprendi v. New Jersey.  threw Almendarez-Torres into doubt, but no one else did.  The motion was denied.  The jury convicted Ian after a week-long trial.

At his original sentencing in January 2003, I filed objections renewing that argument, but also contending that the government did not proved our client used a firearm during the offense, which would add about two years to his sentence under the guidelines.

The prosecutor was angry. She felt she proved at trial that Ian used a gun,  and that it  just “did not matter” due to the 3-strikes rule – he was going to get life without parole, so two extra years was meaningless in her mind.

We persisted.

At the sentencing hearing, the judge agreed with me that there just wasn’t enough evidence connecting the lone gun found by the police to my client.  So the +2 offense level points did not count. (The prosecutor was livid.)

Still, the judge had no choice but to sentence Ian to life imprisonment without parole.

In 2010, Asheville criminal defense lawyer Andy Banzhoff had a new idea for one of his clients:  maybe North Carolina drug cases do not count as felony convictions because under our Structured Sentencing statute, the maximum punishment can be less than a year imprisonment if the defendant has a relatively clean prior record.  Banzhoff and other appeals lawyers fought this fight in United States v. Simmons for several years, and eventually won.  (I drafted an amicus brief in that case which you can see here.)

Suddenly, Ian had a chance – one of his prior convictions was in North Carolina for marijuana, and at the time of his conviction his record was light.

In 2013 I filed a habeas petition seeking a re-sentencing due to the Simmons decision.  It was denied on the basis that Simmons should not be applied retroactively.  Eventually, the Fourth Circuit decided Simmons should be applied retroactively.

I filed again, and this time it worked – in 2019 the District Court granted Ian a new sentencing hearing.

And this is where the “meaningless” fight over the +2 gun enhancement in 2003 mattered – which I’ll explain in a minute.

At the re-sentencing hearing in August 2019, this is what I told the judge:

Ian woke up in prison every day for 6,752 days. He lived a life and improved. He slowly changed his perspective. He learned yoga and meditation. He took all kinds of Bureau of Prisons self-improvement classes, even though he was serving life without parole.  We showed the judge dozens of class completion certificates.  Ian became a meditation teacher in prison.

He was also lucky: a long-time friend took in his infant son. Every other month his friend brought Ian’s son to the prison for a visit.  Ian wrote monthly letters to his son, encouraging him to focus on education.  His son graduated from high school and enlisted in the military.

The judge re-sentenced Ian to 22 years imprisonment instead of life.  If the gun enhancement had applied, he would have gotten 24 years.

Ian had served 18.5 years already, and with the small amount of earned time he achieved, Ian was released within a month.

He was out because we fought the “meaningless” good fight.

 

Last week I was named the Best Lawyers® 2021 Criminal Defense: White-Collar “Lawyer of the Year” in Charlotte.

I usually don’t tout such awards.  I rely on my reputation and work to gain new clients.  But I confess I’m proud of this particular recognition for three reasons.

First, I achieved it from a different angle than prior recipients – I almost exclusively represent human beings in white collar investigations, not companies.  There are many great white collar defense lawyers in Charlotte who focus on representing big companies and their high-level executives.  I learned a lot over the years from these lawyers.  They sometimes bring me into cases to represent other employees.   But I focus on representing owners, managers, or employees in small and medium businesses.

Second, this was a plan I hatched 16 years ago.  From 1994 – 2003 I defended people in blue-collar crimes in state and federal court – everything from robbery to DWI, from drug offenses to homicides.  In 2003 I crafted a plan to try to break into the white collar field.  It took patience, hustle, and a willingness to learn.  Some of the skills of blue collar defense – cross-examination, independent investigation, listening to clients – translated to white collar.  But I kept my eyes open and learned new skills.  It’s fun to make a plan and achieve the goal — a thriving white collar practice.

Third, I think Best Lawyers/U.S. News have the best method – peer voting by other lawyers and judges in each field.  It feels good to earn this vote from the white collar defense community here in Charlotte.

Enough of the self-promotion.  Back to work.

Whenever I have a consultation with a businessman or professional who has been contacted by the FBI or some kind of law enforcement, the conversation always comes around to this question:

Won’t it look bad if I hire a criminal defense lawyer?

The short answer is no. Simply, firmly, no.

To clarify, the reasons are many, but here are some of them:

  • Good cops and good prosecutors know that smart businessmen always consult a lawyer if they are contacted by law enforcement.  In private, FBI agents are always amazed that so many people just go ahead and answer questions without first seeking the advice of an attorney.
  • Lying to a federal agent is in itself a crime. (See 18 United States Code §1001.) It’s super important to either tell the whole truth or simply refuse to answer questions. You are much better off getting a criminal defense lawyer to help you decide whether to talk, than to take the risk of answering in a way that make the feds think you are lying.
  • Even if you tell the full truth, what you divulge may contradict something you’ve declared in the past. This often comes up when someone tells the truth to an FBI agent about an asset or income, but a prior tax return treated the asset or income differently.
  • White-collar cases do not develop quickly. Taking a week or two to consult with a lawyer will not piss off the government, nor will it change the outcome of the investigation.

A few years ago, I instituted a new rule: before going to trial or sentencing, I visit the client’s home and have dinner at the kitchen table.

Why?

Because I learn so much more about the client. I see how he interacts with family. I see photographs on the wall. At dinner I hear family stories about the client. I learn nicknames, habits, and anecdotes.

In African-American homes, word gets out that the lawyer is there and friends and neighbors drop by. No matter how dire the case, there is something about a meal at the kitchen table that brings out some laughter and joy of life. (It has to be at the kitchen table, not the dining room table.)

If the case is heading to trial, then after dinner becomes a bull session, brainstorming. No matter how much I’ve studied discovery before, I get a new insight or two from these sessions.

I had a case in a rural mountain county once, and only when a neighbor dropped in (I think for some free dessert) did I learn who the likely “reliable informant” was, and why the guy was likely unreliable.

Our criminal justice system de-humanizes the accused. They are called “suspects” or “perpetrators” or “defendants.”  I need to humanize each client. Actually, re-humanize them for the jury or judge.

A couple of years ago, I walked into a Superior Courtroom in North Carolina that I hadn’t been in for a long while.  Sitting on the bench was a judge that I hadn’t seen in an even longer time.  This judge and I had been on opposite sides and fought cases against one another when he was just a prosecutor in the 1990s.

Upon spying me, the judge shouted, “Well, how the hell are you Counselor Fialko?” Caught off guard in the full courtroom, and without thinking, I replied, “Your honor, I’m just trying to defend the Constitution one client at a time.” He laughed, and said, “I see how that could be a full-time job.”

Since that day, I’ve been using that catch-phrase often, whenever I meet someone new or see someone I haven’t seen in a while. While I say it mostly to be funny and break the ice, it also serves as a barometer: the people who laugh and appreciate the comment tend to understand the crucial role of a criminal defense lawyer in our society. On the other hand, if my quip is greeted with frowning silence, I become immediately wary.

Thanks for reading.
-Chris Fialko

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