Wednesday, January 8, 2014

White Collar Crime with Richard Kuniansky

White-collar crime is defined as a financially motivated, nonviolent crime committed for illegal monetary gain. Although there has been some debate as to what actually qualifies as a white-collar crime, the term today generally encompasses a variety of nonviolent crimes usually committed in commercial situations. Many white-collar crimes are especially difficult to prosecute due to complex transactions. Examples include fraud, bribery, Ponzi schemes, insider trading, embezzlement, cybercrime, copyright infringement, money laundering, identity theft, and forgery.

According to the Federal Bureau of Investigation, white-collar crime is estimated to cost the United States more than $300 billion annually. Although typically the government charges individuals for white-collar crimes, the government has the power to sanction corporations as well for these offenses. The penalties for white-collar offenses may include fines, forfeitures, restitution and imprisonment. However, sanctions can be lessened if the defendant takes responsibility for the crime and assists the authorities in their investigation. Any defenses available to non-white-collar defendants in criminal court are also available to those accused of white-collar crimes. A common refrain of individuals or organizations facing white-collar criminal charges is the defense of entrapment.

The activities that constitute white-collar criminal offenses may be covered by both state and federal legislation; the Commerce Clause of the U.S. Constitution gives the federal government the authority to regulate white-collar crime, and a number of federal agencies including the FBI, the IRS, U.S. Customs and the Securities and Exchange Commission all participate in the enforcement of federal white-collar crime legislation. In addition, most states employ their own agencies to enforce white-collar crime laws at the state level.

To combat white-collar crime, the U.S. Congress passed a wave of laws and statutes in the 1970s and 80s. The Racketeer Influence and Corrupt Organizations Act (RICO), originally associated with organized crime, was also applied to white-collar crime. Under RICO, racketeering now includes embezzlement from union funds, bribery and mail fraud. RICO has made it easier to prosecute organizations and seize assets related to corruption, as well as allowing states or people to sue perpetrators for up to three times the amount of damages. Since the United States tightened its federal sentencing guidelines, white collar criminals now face longer sentences with less opportunity for early release. Opponents argue that white-collar crime punishment is too harsh, considering that white collar criminals tend to be first-time offenders.

Monday, January 6, 2014

Mail and Wire Fraud with Richard Kuniansky

Any criminal activity that involved the United States mail or electronic/digital communications is considered Mail or Wire Fraud. This includes the use of mail, television, radio or the internet in order to transmit false promises or advertisements to the public. Penalties may be up to $1,000,000 and 30 years in prison.

Mail fraud refers to any scheme which attempts to unlawfully obtain money or valuables in which the postal system is used at any point in the commission of a criminal offense. Mail fraud is a legal concept in the United States Code which can provide for increased penalty of any criminally fraudulent activity if it is determined that the activity involved used the United States Postal Service. This statute is often used as a basis for a separate federal prosecution of what would otherwise have been only a violation of a state law. Prosecution under the mail fraud statute must prove beyond a reasonable doubt:

  • That the statement is false;
  • That it was made with the intention it should be relied on;
  • That it was made for the purpose of securing money or property;
  • That the statement was delivered by mail;
  • That money or property was obtained by means of the false statement.

Wire fraud provides for enhanced penalty of any criminally fraudulent activity if it is determined that the activity involved electronic communications of any kind, at any phase of the event. As in the case of mail fraud, this statute is often used as a basis for a separate federal prosecution of what would otherwise have been only a violation of a state law.
The crime of wire fraud is codified at 18 U.S.C. § 1343, and reads as follows:
"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both."
 It is important to note that a victim does not need to actually be deprived of property or deceived for a conviction under the mail fraud or wire fraud statutes. The intent to deprive a victim of property is enough to convict. It also generally does not matter if the property in question is tangible or intangible: it can be enough to convict someone who intends to deprive a victim of their intangible right to control their assets. Each separate use of wire communication or the mail in furtherance of a scheme generally constitutes a separate offense.