An issue arises: is it a mistake? Is it an act not reaching the level of a crime? Or is it a crime?

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1 Timothy X. Sokas First Assistant Attorney General Director, Medicaid Fraud Control Unit Office of the Attorney General of Colorado 1300 Broadway, 9 th Floor Denver, Colorado (720) FAX: (866)

2 The views contained in this presentation are those of Timothy X. Sokas alone, and do not represent the views of the Office of the Attorney General or the State of Colorado. This presentation is not legal advice and should not be viewed as such. An issue arises: is it a mistake? Is it an act not reaching the level of a crime? Or is it a crime? It all comes down to one thing: INTENT. As state officials, you all have Assistant Attorneys General who represent you and your agencies, and handle CIVIL court cases for your agency. Today I d like to explore instances when the conduct of concern may be of a CRIMINAL nature. 2

3 A person acts intentionally or with intent when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial whether or not the result actually occurred. [ (5), C.R.S.] Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all of the evidence, you are then convinced that the defendant is guilty beyond a reasonable doubt. The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged. Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves. 3

4 If you find from the evidence that each and every element has been proven beyond a reasonable doubt, you should find the defendant guilty. If you find from the evidence that the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty. The elements of the crime of theft are: 1.That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. knowingly a. obtained or exercised control over b. anything of value c. which was the property of another person, d. [without authorization] [by threat or deception], and 4. with intent to permanently deprive the other person of the use or benefit of the thing of value, and 4

5 5. [the value of the thing involved is ($ amount) -orthe aggregate value of the things involved is ($ amount) as a result of the defendant having committed theft two or more times within a period of six months.] The elements of the crime of forgery are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. with intent to defraud, 4. falsely [made] [completed] [altered] [uttered] a written instrument, 5. which was or purported to be, or which was calculated to become or to represent if completed, 6. [part of an issue of money, stamps, securities, or other valuable instruments issued by a government or government agency] [part of an issue of stock, bonds, or other instruments representing interests in or claims against a corporation or other organization or its property] [a deed, will, codicil, contract, assignment, commercial instrument, promissory note, check, or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation, or status] [a public record or an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant] [a written instrument officially issued or created by a public office, public servant, or government agency] [part of an issue of tokens, transfers, certificates or other articles manufactured and designed for use in transportation fees upon public conveyances, or as symbols of value useable in place of money for the purchase of property or services available to the public for compensation] [part of an issue of lottery tickets or shares designed for use in the lottery] [a document-making implement that may be used or is used in the production of a false identification document or in the production of another documentmaking implement to produce false identification documents]. 5

6 The elements of the crime of computer crime are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. [accessed any computer, computer network or computer system, or any part thereof for the purpose of devising or executing any scheme or artifice to defraud, and] -or- [accessed any computer, computer network or computer system, or any part thereof, to obtain by means of false or fraudulent pretenses, representations, promises: [money] [property] [services] [other thing of value] [passwords or similar information through which a computer, computer network or computer system or any part thereof may be accessed], and,] -or- [accessed any computer, computer network or computer system or any part thereof to commit theft, and] [amounts] Any person who attempts to influence any public servant by means of deceit or by threat of violence or economic reprisal against any person or property, with the intent thereby to alter or affect the public servant's decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member, commits a class 4 felony. 6

7 Public servant means any officer or employee of government, whether elected or appointed, and any person participating as an advisor, consultant, process server, or otherwise in performing a governmental function, but the term does not include witnesses. [ (3)(o), C.R.S.; see also (3), C.R.S.] A. Review one more time. Remember, you are the experts. If this matter goes to trial, the prosecutor will rely heavily not just on you as a witness, but also to educate him/her. B. If upon review you see an issue, and it is beyond the level of mistake, it may be time to contact a prosecutor. I generally recommend that you contact the prosecutor s office directly. C. Be prepared to explain no just what the issue is, but what you do and how it is done. The prosecutor and investigators will need to know this so they can determine if it is a matter suitable for prosecution. 7