Thursday, March 13, 2014

Defending against white collar criminal charges.

Defending “white collar” crimes – when taking money isn’t stealing

White collar crime is defined in Black’s Law Dictionary as “law violations by corporations or individuals including theft or fraud and other violations of trust committed in the course of the offender’s occupation (e.g., embezzlement ….).”  It defines embezzlement as “willfully to take … another’s money or property, of which the wrongdoer acquired possession lawfully, by reason of some office or employment or position of trust.”

Colorado’s embezzlement statute - “embezzlement of public property” - is at CRS 18-8-407 and requires proof of knowing conversion by a public employee of public monies or property (note fraudulent intent is not required). 

Charges of embezzlement at the state level in Colorado not involving public employees are incorporated into the theft statutes at CRS 18-4-401 et seq., per CRS 18-4-403.  It’s a felony if it involves $2,000 or more.

Embezzlement is a form of theft historically based on the relationship between the wrongdoer and the victim.  That relationship is not as significant now, nor are any of the historical distinctions involving what used to be known generally as “larceny.”

Defense firms don’t like the phrase “white collar crime.”  It’s not much of a definition.  It’s really a media, editorial or political phrase.  It’s a way to put a bad spin – a negative label – on the accused.  People, jurors, even judges, may sympathize with a robber (guy robs a liquor store to get money for his drug habit, food, rent, etc.) versus the guy who allegedly steals millions as part of a mortgage scheme and supposedly lives it up somewhere.

In any event, so-called white collar crimes are defended best like most serious criminal cases - by identifying and attacking the “seams” of the prosecution’s case.  One of the most obvious is intent, or lack of it.  Others include defining the conduct away from criminal conduct, hammering the definitions and elements of the charged offenses, putting forth other plausible non-criminal explanations, minimizing amounts involved (to reduce the severity of the charge), focusing on the lack of evidence.  Every case is different.

A good defense team – lawyer, paralegal, investigator – learn the business of the accused, the documents, the players, the details, better than the prosecution (we have the benefit of talking directly with the accused).  Federal cases are tougher because they have more prosecution resources, longer investigations, shorter trial dates, more severe consequences.

One of the biggest issues – biggest seams - with white collar crimes is the discretion in charging them - what the prosecution thinks is criminal intent may not be.  If you can get the case looking more like a civil matter – as many of them really should be - good things can happen.

 Why are some “theft” cases prosecuted criminally and others not?  If a person doesn’t pay his doctor or his lawyer for services, is that theft?  If you run out before paying for a meal at a restaurant, is that theft?  If you pay a contractor and he only does half the job, or a half-decent job, is that theft by the contractor?  If someone misses a mortgage payment, is that theft?  Is the amount involved relevant?  The social status of the person accused, or the victim?  Ending up with someone else’s money isn’t always stealing.  Each case is different - fact-specific - and facts make the difference. 

The legislative/political trend is to make it easier to convict at both the state and federal level, starting with lumping “embezzlement” and other historically different forms of larceny together under the theft statutes, to increasing efforts to water down the need to prove a mental element like intent, aka mens rea.  The National Association of Criminal Defense Lawyers issued a report in 2010 focusing on “shoddy lawmaking that is systematically diminishing the criminal intent requirement – a moral anchor of the American criminal justice system,” citing among others a Florida statute that removed the mental elements of intent and knowing from drug possession (admittedly not the stereotypical white collar crime but alarming nonetheless).

This trend makes it even more important that defense firms continue aggressively to stand up for the accused and make the prosecution prove their cases.
(Excerpted from a recent talk given by lawyer Dave Sanderson to the Boulder County Bar Association, discussing defense of white collar criminal charges).