INVESTIGATIONS & WHITE COLLAR CRIMINAL DEFENSE

One may be convicted of criminal fraud for using false or fraudulent pretenses, either a false statement or promise, misrepresentation, deception, or some other kind of falsehood with the intent to deprive a victim of money or property. There are many types of criminal fraud, including securities fraud, healthcare fraud, employment fraud, and bankruptcy fraud.

A defendant may be charged with fraud at the state or federal level, as a misdemeanor or felony, depending on the value of the property loss. This charge carries with it potential fines and prison sentences.
Possible defenses to fraud include the absence of intent to defraud or deceive, and the assertion that the fraudulent statement was not one of fact, but was merely a future promise or opinion.

Defendants charged with criminal fraud are often charged with wire and mail fraud as well.

A defendant may be charged with wire fraud if interstate use of electronic communication or phone lines have been used in furtherance of the fraud scheme. This includes the use of telephones, fax machines, internet, television or radio. Some types of wire fraud are telemarketing fraud, phishing, and spam schemes.

To convict a defendant of wire fraud, the fraud scheme does not have to be achieved through the wire communications, the prosecutor need only show that these devices were used in furtherance of the scheme. Additionally, the prosecutor does not have to prove that the victim suffered any loss by the defendant, only that the defendant attempted to commit fraud. The ease of proving wire fraud makes this crime one that prosecutors often rely upon when they realize that they lack sufficient evidence to prove the elements of other crimes with which they intend to charge the defendant.

A conviction of wire fraud can result in fines and up to 20 years in prison. Wire fraud schemes affecting a financial institution can carry fines of up to a million dollars and up to 30 years in prison.

A defendant who commits fraud and uses the U.S. mail to further the fraudulent scheme can be charged with mail fraud. The U.S. Postal Inspection Service describes the most common fraudulent activities using U.S. mail as:

• Employment fraud, including distributor/franchise fraud, phony job opportunities, pyramid schemes, work at home schemes, mystery shopper scams
• Financial fraud, including advance- fee loan schemes, charity fraud, credit card fraud, schemes charging money for services the government provides for free, investment fraud, solicitations disguised as invoices
• Fraud against older Americans
• Sweepstakes and lottery fraud, including chain letters, free prize schemes, free vacation scams

As with wire fraud, to convict a defendant of mail fraud, the prosecutor need not show that the device sent via U.S. mail achieved the goal of the fraudulent scheme, nor that the victim suffered any actual loss, making it a favored catchall charge by prosecutors. Penalties for mail fraud include fines and imprisonment.

Embezzlement is the misuse or misappropriation of funds or property by one legally entrusted with it. A conviction of embezzlement may stand regardless of if funds or property were for the defendant’s personal use or if it was transferred to a third party.

To be found guilty of embezzlement, the defendant must have had the intent to defraud the owner of the funds or property at the time it was misappropriated. Additionally, the defendant must have owed the owner a fiduciary duty, meaning a legal duty to act in the money or property owners’ interest.

Each state defines embezzlement differently; as such, the punishment for embezzlement varies in each jurisdiction. Generally, though, a charge of embezzlement can result in fines, imprisonment, or both, often dependent upon the amount of property lost.

Tax crimes include filing a false tax return, tax evasion, filing false documents, overestimating deductions, failure to collect employment taxes, failure to pay taxes, and failure to file a tax return. Generally, the IRS does not prosecute for a tax crime where failure to properly pay taxes was merely negligence or a mistake. However, one may be criminally charged in instances that evidence an intent to defraud. Conviction for a tax crime can result in hefty fines, orders to pay for the cost of prosecution, and up to 5 years of imprisonment for each count of tax fraud.

Defendants may find themselves charged with conspiracy to commit a crime, though they may have had little or no participation in the commission of that crime. A conspiracy occurs when there has been an agreement between two or more people to commit a crime, and an overt act has been done to further the conspiracy. Thus, a defendant who did nothing more than agree to accomplish an illegal activity may be held criminally liable for the entirety of that crime.

For a conspiracy charge to be upheld, the prosecutor need not show that the scheme to commit the illegal act was successful. The defendant does not have to be aware of all of the details or elements of the illegal activity, or even of all of its participants. Furthermore, conspirators are liable for any activities reasonably foreseeable by their co-conspirators, though these acts were not necessarily agreed upon.