WHITE-COLLAR CRIMES IN CALIFORNIA DOMENIC J. LOMBARDO

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1 WHITE-COLLAR CRIMES IN CALIFORNIA Although White-Collar Crimes are Non-Violent Offenses They are Criminal Offenses Nonetheless and Can be Punished Just as Harshly as Other, More Well-Known, Crimes; a Basic Understanding of Some of the More Common White-Collar Crimes Might Prevent You from Unknowingly Participating in One DOMENIC J. LOMBARDO

2 When people think of crimes they typically envision a violent offense and/or a drug related offense. While these are certainly crimes, there is another category of crimes that has nothing to do with drugs or violence white-collar crimes. Although white-collar crimes are non-violent offenses they are criminal offenses nonetheless and can be punished just as harshly as other, more well-known, crimes. In fact, many white-collar crimes are charged as serious felonies at both the state and federal level. What does set these crimes apart from their more well-known counterparts is that otherwise law abiding citizens frequently find themselves unwittingly at the center of a white-collar criminal investigation simply because of their position within a company or because of their professional relationships. Only an experienced California criminal defense attorney can provide you with specific advice if you are under investigation for, or have already been charged with, a white-collar crime; however, a basic understanding of some of the more common white-collar crimes might prevent you from unknowingly participating in one. WHAT IS A WHITE-COLLAR CRIME? The term white-collar crime has been around since the 1940s. The term was originally coined by a sociologist in 1939 who defined it as "a crime committed by a person of respectability and high social status in the course of his occupation." 2

3 That basic definition still works today. White-collar crimes are non-violent crimes that are typically perpetuated by educated, professional individuals for financial gain. Although they are non-violent offenses that doesn t mean there are no victims in a white-collar crime. On the contrary, victims of white-collar crimes can lose their entire life savings, causing financial devastation for the victim and the victim s family. According to the Federal Bureau of Investigation, or FBI, white-collar crimes are estimated to cost over $300 billion in the United States each year. WHO INVESTIGATES AND PROSECUTES WHITE- COLLAR CRIMES? In the United States we operate under a federalist form of government which means we have a strong central government as well as smaller units of government within the states. Power is shared between the federal and state governments. As such, a criminal offense could be investigated at the state level, the federal level, or both. At the federal level, agencies that often investigate white-collar crimes include the Federal Bureau of Investigation, the Securities and Exchange Commission, the Internal Revenue Service or the United States Treasury. Just as a white-collar crime can be investigated by state or federal authorities it can also be prosecuted by the State of California or the United States Attorney s Office. One way for the federal government to have jurisdiction over a criminal offense is that the crime crossed over state lines. Because many white-collar crimes are committed using sophisticated computers that send information across the globe at the speed of light, these crimes often fall under the jurisdiction of the U.S. 3

4 Attorney s Office, meaning they are often prosecuted in federal court. At the state level, the San Diego County District Attorney s office may also choose to prosecute you for a white-collar crime if the crime was allegedly committed in the San Diego area. COMMON WHITE-COLLAR CRIMES The list of criminal offenses that fall into the category of white-collar crimes is long and ever-changing. A better understanding of white-collar crimes can be gained by exploring some of the more common white-collar crimes prosecuted at the state or federal level. Insider trading insider trading occurs when someone with confidential, or non-public, information trades stocks or securities based on that information. If you have knowledge about a company that the public does not have you are clearly in a better position to make an investment decision about that company s stock than a member of the public is. If you are in possession of that information because you are employed by the company, or are an officer in the company, you are also breaching your fiduciary duty by using that privileged information for financial gain. It becomes more complicated if you are not an actual insider yourself but received privileged information from someone who is; however, you may still be in violation of the law. Embezzlement embezzlement is a type of theft that is distinguished from other types of theft by the fact that the perpetrator was originally in lawful possession of the assets that were stolen. 4

5 Typically, embezzlement occurs when funds or property are entrusted to someone who later refuses to return the property or funds to the rightful owner. For example, if you are a stock broker and you divert client funds to a private account that would qualify as embezzlement. Likewise, a corporate officer who co-mingles corporate funds with his or her private funds could be charged with embezzlement. Computer and internet fraud in the 21 st century computers are used to do everything from store highly sensitive personal or corporate information to chat with friends around the world. Computers are also the newest, and arguably best, weapon in a criminal s arsenal. A skilled hacker is able to infiltrate a private computer and gain access to passwords as well as personal information that can be used to commit identity theft, fraud, or a long list of other white-collar crimes. If you work in information technology, be extremely careful. It is often tempting to see just how skilled you are by trying to hack private computers or even hack into government agencies. While your motive may be fairly innocent you could be committing a very serious state or federal crime. Tax evasion in the United States people use every loophole, credit, and deduction available to get out of paying taxes. Using loopholes, credits, and deductions is actually legal. Underreporting income, inflating deductions, or hiding assets in an offshore account, on the other hand, is tax evasion. Failing to report income from an illegal enterprise can also amount to tax evasion. People make honest mistakes when they prepare their personal or corporate income tax returns each year. Making an honest mistake has consequences in the 5

6 form of penalties and fees added to your tax bill; however, when the mistake was intentional the consequences could include a lengthy prison term. As with many other white-collar crimes it is very easy to cross the line from creative accounting to tax evasion without even realizing it or intending to do so. Antitrust violations anti-trust laws are intended to ensure fair competition in the marketplace by prohibiting things such as monopolies, price fixing, predatory pricing and exclusive dealing agreements. If a single entity manages to gain a monopoly in the marketplace the consumer has no choice but to purchase the goods or services sold by that entity at any cost. Many of the other anti-trust laws are in place to ensure that large corporations don t make it impossible for smaller start-ups to enter the market. Because of the complexity of anti-trust laws it can be easy to violate one of them without the intention to do so. Money laundering the Department of Justice defines money laundering as the process by which criminals conceal or disguise the proceeds of their crimes or convert those proceeds into goods and services. It allows criminals to infuse their illegal money into the stream of commerce, thus corrupting financial institutions and the money supply, thereby giving criminals unwarranted economic power. The very nature of the crime of money laundering typically requires several businesses to be involved, making it easy to become part of a laundering scheme without realizing it. 6

7 One common theme you may have noticed in each of these descriptions is how easy it can be to become entangled in a white collar crime without the intention to do so. While your lack of intent may provide a successful defense should you be charged with a crime, it is always better to avoid being charged in the first place than to count on a defense to the crime after the fact. HOW TO KNOW IF YOU ARE UNDER INVESTIGATION FOR A WHITE-COLLAR CRIME Unlike investigations for other types of crimes, an investigation for a whitecollar crime is usually fairly upfront and obvious. In fact, if you are being investigated by a federal agency you may even receive a target letter that informs you of the investigation. A target letter typically informs you of the charges being investigated and informs you of your rights. As a general rule, if you receive a target letter, a formal indictment will follow. Other indications that you are under investigation for a white-collar crime include: You are contacted by a representative of the FBI, SEC, IRS, or any of the other alphabet agencies. You receive a subpoena to testify in front of a grand jury. You are served with a grand jury subpoena to produce business records and/or personal financial records. You are presented with a warrant to search your home or office. 7

8 You appear to be under surveillance and/or you find out your telephones are being monitored. If you believe that you are being investigated for a white-collar crime by a state or federal agency you should consult with an experienced California criminal defense attorney immediately. Likewise, if you are actually contacted by an investigator from one of these agencies do not talk to them without an attorney present. Something you say can easily be misconstrued and used against you down the road. By the time an investigator makes contact with you there is a high probability that an arrest is already imminent. Talking your way out of it will not work. What can work is exercising your right to remain silent as well as your right to counsel. Although society tends to view white-collar crimes as less serious offenses, the reality is that most of them are charged as felonies and carry with them the possibility of a lengthy term of imprisonment if convicted. From the moment you become a suspect you need legal representation. If you are the target of a white-collar criminal investigation, or have been charged with a white-collar crime, contact an experienced California criminal defense attorney right away to discuss your legal options. Federal Bureau of Investigation, White-collar Crime Cornell University Law School, White-collar Crime: An Overview 8

9 About the Author Domenic J Lombardo Domenic J. Lombardo, (Attorney at Law) graduated from University of California, Los Angeles (U.C.L.A.), earning a B.A. in Economics-Business, before graduating with his J.D. from University of California, Hastings School of Law. He passed the California Bar Examination on the first try, and immediately began practicing as a criminal defense attorney in San Diego, California. Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public Defender from 1991 to early Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as aa sole practitioner dedicated entirely to the defense of individuals accused of crimes. And while Mr. Lombardo works as the primary attorney for all his cases, he does have a team of investigators, forensic consultants, and paralegals to call on to help achieve the best possible result in every case. When he is not working, Mr. Lombardo is an avid family man, triathlete, and world traveler. The Law Office of Domenic J Lombardo The Executive Complex 1010 Second Ave., Ste San Diego, CA

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