White Collar Criminal Charges: What are they?
While the law does not technically recognize a category of crimes called “white collar crimes,” this is not to say that such a category does not exist. The FBI defines white collar crimes as “illegal acts that are characterized by fraud, concealment, or a violation of trust and are not dependent upon the application or threat of physical force or violence.” While white collar crimes may be violations of federal and state law, many, if not most, serious white collar crimes are prosecuted in federal court.
The same law, depending on how it is violated, may or may not be a “white collar crime.” For example, a dealer selling cocaine on a street corner and a physician prescribing painkillers to patients who want to get high are both violating the same federal law—21 U.S.C. § 841. However, only the second example is a “white collar crime,” because it was committed by the physician through the abuse of a position of trust—namely, his status as a healthcare provider.
Practical differences also figure into the categorization of some crimes as “white collar.” For example, the investigation, prosecution, and the defense of white collar criminal cases are different in important ways from that of “street crimes.” It is also easier for a defendant charged with a white collar crime to obtain pretrial release than a comparable defendant charged with a violent crime, because of differences in the nature of the crime and—usually—the backgrounds of the defendants. Finally, white collar crimes tend to be prosecuted by more senior attorneys in a prosecutor’s office, because these cases typically involve more complex and challenging issues. Therefore, the defense attorney needs to be more prepared and skilled as well. We discuss some other unique aspects of white collar offenses below.
Defending Against White Collar Criminal Charges
Successfully defending a white collar criminal case has many similarities to successfully defending any other criminal charge: it requires careful attention to the facts, diligent research of the law, and an ability to plan ahead by anticipating all of the myriad possibilities that can occur in the case, from start to finish.
With that said, there are important differences in the defense of white collar crimes compared to the defense of ordinary “street” crimes. White collar prosecutions present their own special challenges. We go over some of those differences below.
The defendant’s intent is often the central issue at trial
The first important difference between white collar cases and other cases that intent is much more likely to be the primary focus of the trial.
In the American legal system, the vast majority of criminal offenses require proof of two things: an act, called the actus reus, accompanied by an intent, called the mens rea. In the context of street crimes, such as drug dealing, assault, murder, or rape, the contested issue is often the actus reus—did the defendant actually commit the act? Once the act is proven, juries will almost always find intent.
In white collar criminal cases, the opposite is true. Often, the disputed issue is centered not around the act (for good reason, because often there will be banking records, computer files, and similar documentation to prove that the defendant performed a transaction), but instead around the defendant’s intent behind those acts. For example, did the defendant know a particular statement he made was false? Did the defendant change a date on a document with “intent to defraud?” Was the defendant’s offer of a plane ride to a government official intended as a bribe, or a gesture of good will?
Moreover, the kinds of intent that must be proven may differ from case to case. For example, in one case, the prosecutor may have to prove the defendant knowingly performed an act. In another case, the prosecutor may have to prove that the defendant knew his conduct was unlawful. Appreciating the distinction between the different kinds of intent is crucial to successfully defending a white collar case.
The prosecution’s witnesses must be handled differently
Another difference is in the kinds of witnesses that are presented. In white collar cases, the government will frequently rely on cooperator testimony to prove intent. For example, the government may have a cooperator—who is trying to avoid prison or obtain a Rule 35 sentencing reduction—testify about an “understanding” he had with the defendant, or conversations he has had with the defendant.
Unlike cooperating witnesses in ordinary “street crime” cases, a cooperating witness in a white collar case may not have a criminal record, and may appear sophisticated and well-spoken to a jury. A skilled white collar crime attorney must take account of these factors to effectively cross-examine the government’s cooperating witness at trial.
Additionally, white collar cases will often involve expert testimony by experts from fields in accounting, finance, securities, insurance, and more. These experts will often have impressive qualifications, may be professors in universities, and may even have received training on how to testify in court. It is vital to understand the relevant experts’ fields, to obtain transcripts of any previous cases where they have testified, to review any literature they have written, and to have diligently prepared for the cross-examination.
The evidence may be industry specific
White collar crimes, unlike street crimes, often arise in a specific industry. Business practices in that industry affect how evidence is interpreted or understood. A particular action may be sinister in one business context, but completely benign in another. Moreover, business practices in an industry or a firm may be relevant to understanding documents and records in a white collar case. For example, if you did a task for a colleague, can you record in the company’s records that the task was performed by the colleague? Does it make a difference if you were paid by the colleague to perform the task? Does it make a difference if the industry was in healthcare, as opposed to I.T.? What if insurance was involved in the billing process? A proper white collar defense requires an understanding of the relevant industries involved.
The discovery is often voluminous
White collar cases often involve a large volume of evidence or “discovery,” such as business records, emails, reports, meeting memos, and more. Even in a comparatively “simple” white collar case, the discovery may include gigabytes of data and tens of thousands of pages of discovery. In a complex white collar case, it is possible for the discovery to reach millions of pages of documents and terabytes of data.
The critical details often lie buried in this discovery, and it is up to the defense attorney to find those critical details and figure out how to build a case around them. The prosecutor has a team of experienced agents who may have spent years reviewing the underlying documents, and a defense attorney will not be given a similar amount of time. Therefore, it is important to work with an attorney who is experienced with reviewing large volumes of discovery and is able to identify the important documents in the discovery.
Our Approach to White Collar Criminal Defense
As much as we love a good trial, we know that for most of our clients, the best outcome in a white collar case is one where the client is never charged. There are several important factors that enable us to consistently achieve this outcome:
First, it is important for the attorney to be involved as early as possible. The longer an investigation continues, the more likely the prosecutor is to become firmly convinced of a set point of view. A white collar attorney’s early involvement allows the client an opportunity to convince the prosecutor to drop the case or pursue lesser charges.
Second, it takes a fair amount of judgment and experience to be able to decide when it is in the client’s best interest to meet with the government. We have had back to back cases involving identical charges. In one case, we met with the government early and managed to persuade the prosecutor to dismiss the case. In the second case, we decided to not meet with the prosecutor, and also managed to get the case dismissed. An seasoned white collar crime lawyer will rely on their experience and judgment to make these calls.
Third, it is important to investigate thoroughly the facts and the law in each and every case. In one of our recent cases, we discovered through our investigation that one of the law enforcement agents on the case committed a serious breach of law and ethics. Based on this discovery, we persuaded the prosecution to dismiss the charge against our client.
We pride ourselves on treating each case as unique, on working hard to achieve the best result for our clients, and on making sure that each of our client gets the defense he or she deserves.
Experienced White Collar Crimes Attorneys
We routinely represent individuals charged with white collar crimes at all stages of the criminal process.
As part of our white collar crimes practice, we have represented individuals charged with:
- Access Device Fraud
- Accounting Fraud
- Aggravated Identity Theft
- Bank Fraud
- Bribery and Illegal Gratuity
- Computer Crimes
- Controlled Substance Act violations by physicians, nurse practitioners, and other healthcare providers.
- Counterfeiting and Forgery
- Foreign Corrupt Practices Act (FCPA)
- Healthcare Fraud
- Immigration and Naturalization Fraud
- Wire fraud
- Money Laundering
- Mortgage Fraud
- Securities Law Violations
- Social Security Fraud
- Tax Law Violations
- Travel Act Violations
Whether you have received a target letter, been subpoenaed to produce documents, testify before a grand jury, or answer questions posed by government agents; or if your home or place of business has been searched by the government; or if you have been formally charged with a crime, it is crucial to secure an experienced white collar criminal defense attorney to protect your rights and interests. The advice that you receive and the steps that you take in the early stages of an investigation or prosecution can have an enormous impact on the outcome, and on your rights.
Our attorneys have the experience to deal with individuals, businesses, and institutions in white collar criminal cases. We know how to handle expert witnesses working for the defense, and how to challenge expert witnesses working for the prosecution. We have worked on cases involving voluminous and complex documents, and have presented aggressive and thorough legal and factual defenses. We take pride in the results we have achieved for our clients.
Frequently Asked Questions
What are some examples of white collar crimes?
White collar crimes tend to cover a broad range of conduct. No two schemes are exactly alike. Below are just a few examples:
- Fraud – A home buyer lies about his employment income on a mortgage application and gets a loan. In this case he has committed fraud.
- Bribery and kickbacks – A company pays a government official to secure a contract; it has engaged in bribery. If the company, instead of paying the official, agrees to send a percentage of its profits on the contract to the official, it has engaged in kickback.
- False statements – An individual who is interviewed by federal law enforcement agents intentionally makes a false statement to distance himself from the investigation. He has committed the crime of making false statements.
What is the relationship between white collar crimes and federal courts?
The vast majority of white collar crimes involve acts that violate both federal and state law, and thus can be prosecuted in federal or state court. However, because federal agents and prosecutors have more resources and are usually better trained than their state counterparts, the more serious white collar crimes tend to be prosecuted in federal court. This is the reason why many of the high-profile white collar prosecutions that appear in the news such as the prosecutions of Martha Stewart and Bernie Madoff, happen in federal court.
Can a person go to prison for committing a white collar crime?
A few decades ago, white collar crimes were commonly punished with only a fine and probation. That is no longer the case. Today, white collar crimes are punished just like any other crime, and carry the potential for significant prison terms and fines. Indeed, in some cases—such as when there is a large dollar figure involved—white collar criminal defendants can be punished just as harshly as defendants convicted of extremely serious violent crimes such as murder and rape.
What kinds of financial penalties are involved in a white collar criminal case?
In federal criminal cases, there are three types of financial penalties:
- Criminal fine – A penalty with a maximum set by statute. For example, the fine for wire fraud is up to $1 million. In practice, courts will rarely impose the maximum fine.
- Restitution – A penalty that is intended to “make the victim whole.” Restitution is calculated according to the victim’s loss, and is mandatory in the vast majority of cases.
- Forfeiture – A penalty that is intended to prevent the defendant from “self-enrichment.” Forfeiture includes any financial gains by the defendant as a result of the crime, as well as any significant assets that were used in the course of committing the crime.
For ordinary street crimes, the financial penalties are usually not major considerations, and the client’s biggest concern is with the possibility of incarceration. In white collar criminal cases, however, restitution and forfeiture are important considerations. A large forfeiture or restitution order can potentially ruin a defendant’s life, even if the defendant receives only a probationary sentence. The government will commonly ask for the largest forfeiture and restitution orders that can be reasonably argued for. However, a skilled white collar attorney can frequently find ways to reduce the amount of forfeiture and restitution owed. Moreover, it is also not uncommon in white collar criminal cases for the defendant and the government to agree on a forfeiture and restitution amount in a plea agreement.
Do I need an attorney in a white collar criminal case?
Sometimes, when our clients are under investigation, they have the idea that if they go speak to an agent or the prosecutor without an attorney, they can persuade the agent or prosecutor that they are innocent. Other times, they are worried that if they hire an attorney, it will make them look “guilty.” They think that if they have nothing to hide, they should not hire an attorney. Nothing could be further from the truth.
Prosecutors and law enforcement agents, especially those in the federal criminal system, understand that it is perfectly normal for an individual to want to speak to an attorney when the individual has been notified that he or she is under investigation. Furthermore, we have not ever seen or heard of a case where the prosecutor has held it against the client for hiring an attorney.
When should I hire an attorney in a white collar criminal case?
As early as possible.
Hiring an attorney early on in the criminal process is helpful, especially if it is before any formal charges have been brought. This is a particularly important period, because prosecutors may not have made up their minds yet about a person’s guilt, and a skilled attorney may be able to persuade the prosecutor to not bring any charges, or bring less serious charges.
Contact an Experienced White Collar Crimes Attorney
If you have been charged with, or are under investigation for, a white collar criminal offense, contact us today to schedule a free phone consultation.