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The Essentials Of White-Collar Criminal Appeals

White-Collar crime is financial crime, usually committed by business or government professionals. Hiring the right criminal appeals lawyer to appeal a white-collar criminal conviction is essential. A conviction of any one of the many crimes, categorized as White-Collar, carry increasingly harsh jail terms and monetary penalties, including restitution, disgorgement, probation, fines and jail. For example, both mail fraud and wire fraud (two of the most commonly prosecuted types of white-collar crime) carry maximum prison terms of 20 years, or if a financial institution is affected, up to 30 years in prison and penalties of up to one million dollars.

If you or a family member have been convicted of a white-collar crime, having the right criminal appeals lawyer is critical. Obtaining the appeals lawyer with experience in white-collar criminal appeals is important for two reasons: 1) there are important time limitations for the filing of certain documents, such as the notice of appeal (a brief document that puts the courts on notice of defendant’s intention to appeal), which must be filed within 14 days in federal courts and 30 days in New York State courts; 2) having a criminal appeals lawyer who understands the system of appellate courts, is experienced in making appellate arguments, and has argued extensively on white-collar criminal issues is of paramount importance.

If you or a family member or friend has been convicted of a white-collar crime please call for a free consultation today at 212-300-3845. Find out what your rights are and what your options are after being convicted and what steps you must take to protect all of your rights on appeal.

WHITE-COLLAR CRIMINAL APPEALS: TYPES OF WHITE-COLLAR CRIME

Many white collar crimes are prosecuted under the Mail Fraud or Wire Fraud statutes, 18 U.S.C. §1341 and 18 U.S.C. § 1343 respectively. There are several elements to a mail or wire fraud scheme, they are 1) Used either mail or wire communications in the foreseeable furtherance, 2) of a scheme to defraud, 3) involving a material deception, 4) with the intent to deprive another of, 5) either property or honest services.

Remember, the mail and wire fraud statutes are very broad, and many different crimes can be prosecuted under these statutes.

Some examples of white-collar crimes are listed here below:

Mail Fraud
Wire Fraud
Hobbs Act
RICO Act
Insider Trading
Embezzlement
Cybercrime
Financial Fraud
Money Laundering
Forgery
Mortgage Fraud
Securities Fraud
Blackmail
Counterfeiting
Credit Card Fraud
Extortion
Health Care Fraud
Insurance Fraud
Racketeering
Welfare Fraud
Check Kiting
Tax Fraud
Bribery
Accounting Fraud

If you or someone you know have been convicted of any one of these white-collar crimes call the Appellate Law Office of Stephen N. Preziosi P.C. for a free consultation. It is essential that you know your rights on appeal. 212-300-3845

WHITE-COLLAR CRIMINAL APPEALS: MAIL AND WIRE FRAUD 18 U.S.C. §§ 1341, 1343

Mail Fraud: This generally applies to domestic mailings within the United States and includes all interstate carriers such as the United States Postal Service and private carriers as well (UPS, FedEx). For purposes of mail fraud, the mailing must originate in one state and, pursuant to the address label terminate in another state in order to be deemed “interstate”. The mailing must cross at least one state line.

Wire Fraud: the wire fraud statute is similar to mail fraud, but includes fraudulent pretenses, representations, or promises, transmitted by means of wire, radio, television communications in interstate or foreign commerce.

The statutes require a mailing or wire communication in furtherance of a scheme to defraud, but mailing or wiring need not be an essential element of the scheme. However, it must be in some way incidental to an essential element of the scheme. In other words, the wiring or mailing must be part of the execution of the scheme and it is not necessary that the defendant personally mail or wire a communication, but it is enough that he/she “caused” the mailing or transmission of the communication.

Many of the crimes that constitute mail and wire fraud also constitute other federal crimes. The main criminal offenses that will come under this heading are fraud, bribery, kickbacks, extortion, money laundering and racketeering. The various types of fraud included are bank fraud, health care fraud, and securities fraud.

WHITE-COLLAR CRIMINAL APPEALS: HOBBS ACT 18 U.S.C. § 1951

The Hobbs Act provides that whoever obstructs, delays or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so commits or threatens physical violence to any person in furtherance of such a plan can be fined or imprisoned up to 20 years.

Under the Hobbs Act, both robbery and extortion are criminalized, where robbery is defined as the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, and extortion is defined as the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear.

At the heart of the Hobbs Act is the commerce clause in The U.S. Constitution (Article I, Section 8, Clause 3 – congress shall have the power to regulate commerce with foreign nations and among the several states). In order for federal authorities to have jurisdiction over any criminal acts enumerated in the statute, the act must affect interstate or international commerce. The affect on commerce necessary to trigger this jurisdiction can be extremely slight in nature and degree.

The Hobbs Act prohibits even indirect and insubstantial effects on interstate commerce, and therefore, conduct constituting either robbery or extortion, which somehow affects the movement of articles and commodities in commerce may be held to cause the necessary obstruction, delay or effect upon commerce.

The affect on interstate commerce only has to be very slight and can even be very indirect in order for federal authorities to gain jurisdiction over the acts as Hobbs Act violations.

WHITE-COLLAR CRIMINAL APPEALS: RICO ACT 18 U.S.C. §§ 1961-1968

The Racketeer Influenced And Corrupt Organizations Act, also known as RICO, is the federal law that provides extensive criminal penalties for acts that are part of an ongoing criminal organization. It focuses specifically on racketeering, and allows leaders of criminal organizations to be charged and tried with the criminal acts that they ordered others to carry out.

Under the RICO statute anyone who has committed at least two acts of racketeering activity within a 10-year period can be charged with racketeering. The RICO “activities” are made up of 27 different federal crimes and 8 state crimes. The penalties, if found guilty, are fines of up to $25,000, a sentence of up to 20 years, or life if one of the racketeering acts is punishable by life in prison, for each of the racketeering activities. Additionally, if found guilty, the party must forfeit any ill gotten gains and interest in any business acquired by a pattern of racketeering activity.

When a defendant is indicted under RICO, the U.S. Attorney can obtain a pre-trial restraining order or injunction to seize a defendant’s assets and require that the defendant put up a performance bond (this bond insures that there is something to seize and that defendant will pay if found guilty).

The RICO indictments, many legal experts claim, are too onerous because the indictment can force a defendant to plead guilty to some lesser charges because where the defendant’s assets have been seized, it is impossible to hire an attorney to defend and represent the defendant.

Under the law, the meaning of racketeering activity is set out at 18 U.S.C. § 1961. As currently amended it includes:

Any violation of state statutes against gambling, murder, kidnapping, extortion, arson, robbery, bribery, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in the Controlled Substances Act);
Any act of bribery, counterfeiting, theft, embezzlement, fraud, dealing in obscene matter, obstruction of justice, slavery, racketeering, gambling, money laundering, commission of murder-for-hire, and many other offenses covered under the Federal criminal code (Title 18);
Embezzlement of union funds;
Bankruptcy fraud or securities fraud;
Drug trafficking; long-term and elaborate drug networks can also be prosecuted using the Continuing Criminal Enterprise Statute;
Criminal copyright infringement;
Money laundering and related offenses;
Bringing in, aiding or assisting aliens in illegally entering the country (if the action was for financial gain);
Acts of terrorism.

Any of the above mentioned acts can constitute predicate acts under RICO. Under the “pattern of racketeering activity” requirement, the prosecution is required to prove at least two acts of racketeering activity within a 10-year period (excluding periods of imprisonment). The predicate acts must be related and are considered related if they have the same or similar purposes, results, participants, victims or methods of commission.

WHITE-COLLAR CRIMINAL APPEALS: INSIDER TRADING

Insider trading is the trading of a public company’s stock or securities by those with access to material, non-public information about the company that is likely to affect the price of the stock. This is illegal because to trade based on inside information is unfair to other investors who don’t have access to the same depth of information.

Section 15 of the Securities Act of 1933 and Section 16(b) of the Securities Exchange Ace of 1934 both prohibit fraud in the sale of securities. The 1934 Act specifically prohibits the sale of securities by “insiders” (corporate directors, officers, stockholders owning more than 10% of a company’s shares). Under the 1934 Act, sections 10(b) and 10b-5 prohibit trade in securities based on fraud.

Rule 10b-5, entitled Employment of Manipulative and Deceptive Practices” specifically states:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,

(a) To employ any device, scheme, or artifice to defraud,

(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”

The Securities and Exchange Commission, the Justice Department and local U.S. Attorney’s can bring civil or criminal charges against an offender. The penalties for each violation are up to 20 years in prison for criminal securities fraud and fines of up to $5 million. You may also be charged with mail and wire fraud, securities fraud, racketeering and tax evasion.

An “insider” is generally defined as company officers, directors and any owner of more than 10% of the company’s shares. However, the term insider may include attorneys, accountants, and consultants that have access to inside information, and possibly even family members of any of these people.

Insiders cannot avoid civil or criminal liability by passing information on to a third party who then trades on this “inside information”; liability may also be imposed on those who steals information and then trades securities based on that material information.

WHITE-COLLAR CRIMINAL APPEALS: SECURITIES FRAUD

Securities fraud is a very broad and general term that encompasses many types of corporate and securities fraud. Generally speaking, it causes investors to buy or sell stock or commodities based on false information that results in losses and violates securities laws. Often these types of crimes include stock manipulation, misstatements of a public company’s financial reports, lying to corporate auditors, insider trading, illegal acts on the trading floor of a stock or commodity exchange, internet fraud, microcap fraud, accountant fraud, boiler rooms, short sale abuse, and ponzi and investment schemes.

WHITE-COLLAR CRIMINAL APPEALS: MONEY LAUNDERING 18 U.S.C. § 1956

Money laundering is the process where proceeds from criminal transactions are transformed into legitimate money or other assets as they are passed through some legitimate entity and funneled back to the original source of the funds.

This is criminalized in the United States under 18 U.S.C. § 1956, Laundering of Monetary Instruments as well as other statutes. This is the principal money laundering statute used to prosecute money laundering.

§1956 reads in part as follows:

(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—

(A)

(i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part—

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

WHITE-COLLAR CRIMINAL APPEALS: TAX FRAUD

Tax evasion is the illegal evasion of taxes by individuals, corporations and trusts. Tax evasion often entails taxpayers deliberately misrepresenting the true state of their affairs to the tax authorities to reduce their tax liability and includes dishonest tax reporting, such as declaring less income, profits or gains than the amounts actually earned, or overstating deductions.

WHITE-COLLAR CRIMINAL APPEALS: EMBEZZLEMENT

Embezzlement is the act of withholding assets or theft of assets by one or more individuals to whom those assets have been entrusted. It is a type of financial fraud where, for example, a lawyer could embezzle funds from a client or a financial advisor could embezzle funds from an investor. Embezzlement can be very minor in nature, involving only small amounts, to those crimes involving large sums and sophisticated schemes.

In America, embezzlement is a statutory offense so the definition of the crime varies from statute to statute. Typical elements are (1) the fraudulent (2) conversion (3) of the property (4) of another (5) by a person who has lawful possession of the property.

WHITE-COLLAR CRIMINAL APPEALS: MORTGAGE FRAUD

Mortgage fraud is a crime in which the intent is to materially misrepresent or omit information on a mortgage loan application to obtain a loan or to obtain a lar than would have been obtained had the lender or borrower known the truth.

In United States federal courts, mortgage fraud is prosecuted as wire fraud, bank fraud, mail fraud and money laundering, with penalties of up to thirty years imprisonment. As the incidence of mortgage fraud has risen over the past few years,states have also begun to enact their own penalties for mortgage fraud

WHITE-COLLAR CRIMINAL APPEALS: HEALTH CARE FRAUD

Health insurance fraud occurs when a company or an individual defrauds an insurer or government health care program, such as Medicare or equivalent State programs.

Unlike excessive services, this fraudulent scheme occurs when claims are filed for care that in no way applies to the condition of a patient, such as an echo cardiogram billed for a patient with a sprained ankle

Appleals of White Collar Criminal Convictions