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White collar crime is a term that was first used by a sociologist in 1939 to describe criminal activity by members of the upper classes in connection with their professions. His point was that this type of crime was barely acknowledged by the criminal justice system and rarely prosecuted. Today, the most common definition of white collar crime no longer focuses on the social status of the offender but rather on the type of conduct involved: illegal acts using deceit and concealment to obtain money, property, or services, or to secure a business or professional advantage. The federal government has passed a variety of laws in the last fifty or sixty years to deal with the problem of white collar crime, using its jurisdiction under the commerce, postal and taxing powers of the federal Constitution to reach all levels of business activity.
White collar crimes follow the general principles of criminal liability in that each crime requires a bad act, a criminal intent, and causation. The defenses to white collar crime are the same ones applicable to all crimes and include incapacity, insanity, intoxication, and duress. Of particular note for white collar crime prosecutions is the defense of entrapment. Entrapment occurs when the government has enticed a person to commit a crime he or she otherwise would not have committed. The majority of courts look at the defense of entrapment through the eyes of the individual defendant and the focus becomes the propensity of that defendant to commit the crime in determining whether he or she has been entrapped. Other courts focus on the government’s conduct from the perspective of whether it is outrageous in terms of convincing a person to commit a crime.
Mail fraud and wire fraud are white collar crimes. The first federal mail fraud statute was passed in 1872 to combat the use of the postal system in counterfeit schemes. Today’s statute prohibits the use of the U.S. mail or private carriers in a scheme to defraud or obtain money, property, or services by fraudulent means. Wire fraud is an act that parallels mail fraud by using wire, radio, or television in a scheme to defraud or obtain property by fraudulent means. The punishment for a violation of these laws is up to five years in prison and a fine. However, if the mail fraud affects a financial institution, the punishment is up to thirty years in prison and a $1,000,000 fine.
The Federal Securities Acts of 1933 and 1934 make it a crime, punishable by up to five years in prison, to willfully violate provisions of the acts. The most common prosecutions are for insider trading, failing to file required reports, or filing false reports. The government must prove that the lawbreaker committed a deliberate and intentional act with knowledge of wrongdoing. Insider-trading prohibitions originally applied only to a person who used nonpublic material facts learned in the course of his or her job to gain a personal advantage over the shareholders of a corporation by buying or selling the corporate stock. However, the prohibitions have been extended to an “outsider” who uses nonpublic material information to gain an advantage, such as a printer who uses confidential information gained in the course of printing corporate documents to make a profit on the stock market, or a person who acts on indiscreet talk overheard in an elevator.
Statutes prohibiting obstruction of justice, perjury, and false declarations, are designed to ensure the integrity of the legal system. It is a crime to assault a process-server, influence a juror through writing, picketing, parading, or demonstrating near a courthouse, or record or observe jury deliberations. Perjury is committed when a person willfully and knowingly makes a false statement under oath in a judicial proceeding.
A false declaration occurs when the false statement is made to a United States grand jury. In order to gain a conviction the government must prove beyond a reasonable doubt that the statement was in fact false and not merely misleading and that the person believed the statement to be untrue when made. The penalties for perjury and false declarations are up to five years in prison and a fine.
In order to combat public corruption, federal attorneys may charge people with the crimes of bribery of public officials and filing false statements. Both the person making the bribe and the person taking the bribe can receive up to fifteen years in prison and disqualification from public office if convicted of a crime under the Bribery Act. The government must prove that something of value has been given, offered, or promised to a federal public official to influence an official act. The corrupt official act need not actually happen, but proof that the official intended to perform the corrupt act is required.
If there is no proof that the official intended to commit the corrupt act, he or she can still be charged with accepting gratuities, which only requires that the official sought or accepted something of value. The crime of accepting gratuities carries a two-year prison term. A federal statute originally passed in 1862 to prohibit false statements in the filing of military claims, now prohibits making false statements, falsifying material facts, or knowingly using a false document within the executive, legislative, or judicial branch of the U.S. government.
The most common tax crime charged is that of failing to file a federal tax return or pay federal taxes. Other tax crimes involve assisting others to file a false return, interfering with the IRS by force, or the forcible rescue of property that has been seized by the IRS. All tax crimes require the government to prove that the lawbreaker willfully, voluntarily, and intentionally violated a known legal duty. In order to convict on tax evasion, the government must also prove a tax deficiency and an affirmative act of evasion or attempt to evade payment of the tax.
Environmental crimes may be prosecuted against individuals or corporations that violate various federal statutes concerning clean water, safe drinking water, toxic substances, solid waste disposal, pesticide use, clean air, and atomic energy. The federal Environmental Protection Agency (EPA) usually investigates complaints and then refers them to a special unit in the Department of Justice for prosecution. Most of the environmental statutes are mainly concerned with regulation of certain industries or practices, but contain criminal penalties for a defendant (individual or corporation) that knowingly violates the provisions of the law. Many statutes have schemes of increasing penalties for repeat violations.
Courts have held that corporations can be punished when illegal acts or omissions are done by corporate agents acting within the scope of their duties for the benefit of the corporation.
Computer crimes were formerly prosecuted under mail or wire fraud statutes. However, in 1984 Congress passed the first criminal statute directly aimed at computer use. Today, the statute prohibits seven kinds of conduct relating to computer use. It is a crime punishable by up to ten years to knowingly access a computer without authorization to obtain confidential national security information and willfully communicate it to one not entitled to receive the information.
Other parts of the act criminalize browsing in government or other protected computers in a manner that affects the official use of the computer; gaining unauthorized financial information from banks or government agencies; accessing information in a protected computer to further a scheme of theft; knowingly infecting a computer with a virus that causes damage to the program; interstate trafficking in passwords; and threatening to cause damage to a protected computer for the purpose of extortion. The penalties for violations of the act range from one year to twenty years in prison and fines.
If you find that the business activities you are involved in are under an investigation for white-collar crimes, contact us so that a knowledgeable white-collar crime attorney can provide the proper advice and actions. Action following an indictment of a white-collar crime is more difficult than if legal counsel had been sought during the pre-indictment stage for the white-collar crime. The increase in white-collar crimes, as every type of civil lawsuit has become less common, resulted in more federal and state officials working to fight white-collar crimes.
If you are currently under investigation for a white collar crime contact us to speak with an expert federal crime offense attorney