Also Click Here
for White Collar Crimes Glossary
- What are white collar crimes?
- Is insider trading always a crime?
- Can a misleading statement that is not corrected be perjury if
made under oath?
- Is there a law against computer "hacking"?
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
| 