CO White Collar Crimes: Why Defending against Them Is Different
Posted By: Jacob Martinez
Category: White Collar Crimes
White collar crimes are serious offenses that are often prosecuted federally. If convicted, you could face serious criminal consequences, such as substantial fines and lengthy prison sentences, together with seizure of assets and other civil actions.
The term “white collar crime” generally refers to financial crimes that are committed with the intention of fraudulently obtaining financial gain. Common examples include tax fraud, securities fraud, insurance fraud, and insider trading.
White collar crimes are much more complex than most other criminal offenses, as is their investigation and defense. Below we discuss how white collar crime cases are handled, and the role of your defense team.
White Collar Crime in Colorado Is Complex
White collar crime differs from most other criminal offenses in that it generally does not comprise a single criminal action, but rather a compendium of actions. These actions may or may not be illegal in and of themselves, but together they constitute an illegal means of obtaining financial gain.
This means that investigators in most white collar crime cases are seeking to determine whether a series of actions constitutes a criminal offense at all, and if so, whether these acts were committed by the defendant with the intent of fraudulent financial gain. This means that the investigation of white collar crimes quickly becomes complex, as does defending against them.
The Unique Nature of Defending against White Collar Crime Allegations
In most criminal cases, the defendant hires an attorney after charges have been pressed, and that lawyer develops a defense for an alleged crime that has already taken place. Plea bargains are very common in these cases, where the attorney’s primary role is negotiation with prosecutors.
Contrastingly, potential defendants of white collar crimes generally hire an attorney well before an indictment is issued. Instead, the lawyers come in while the alleged crime is being investigated, and in some cases even before a formal investigation has begun. The defense team will then attempt to intervene before formal criminal charges are filed, and in some cases lawyers have been successful in stopping governmental actions before an indictment is issued.
Investigating white collar crimes can take many years, as can defending against them. Because of this, your lawyer may hire independent investigators and a staff of legal researchers while carefully cultivating your defense strategy.
Of course, it doesn’t always work out that way. Sometimes a criminal attorney won’t be brought in until there are actual charges. That, as you might imagine, involves a very different type of strategy. We’re going to cover the broad strokes of both scenarios below.
Before Colorado White Collar Charges: Controlling Access to Information
In order to issue an indictment for white collar crime, investigators must first prove that a criminal offense took place. At the outset of a white collar crime investigation, the defense team’s foremost goal is preventing the issuance of an indictment.
This means controlling investigators’ access to information as much as possible and actively working to keep potential evidence out of governmental reach. Defense attorneys do this by keeping documents inaccessible to investigators, and preventing clients and witnesses from talking to government investigators or prosecutors.
Attorneys generally control access to documents through two different means. First, the defense may argue that a subpoena of documents is inappropriate. For example, that it is vague or overburdensome. Secondly, the defense may argue that information already seized by investigators should not be admissible because proper protocols were not followed in making the seizure.
After Colorado White Collar Charges: Substantive Defenses
In the event that an indictment is issued, the defense will turn to substantive defense strategies. Substantive defense strategies focus primarily on whether the defendant had the required intent to commit the offense, whether the evidence against the defendant is conclusive, and whether the actions of investigators could constitute entrapment.
Lack of intent. In order to be found guilty of white collar crime, the defendant must have acted with the intent to defraud. For example, making a false statement out of ignorance would not be considered fraud. On the other hand, if the defendant deliberately misleads others with the intent of financial gain, this would constitute fraud.
Lack of evidence. Again, one of the biggest reasons prosecuting white collar crime is so complex is because it typically comprises a series of actions. Moreover, it is often difficult to prove that the defendant actually committed these actions, as this type of offense typically has no witnesses. In many cases, the defense may be able to argue that the evidence against the client is not sufficient for a conviction.
Entrapment. This occurs when a government agent coerces the defendant to commit a crime he or she would otherwise not commit. Investigative agencies commonly use undercover agents in white collar crime cases, and in some cases, the agent may overstep their bounds in a manner that constitutes entrapment.
What does this mean if you worry that you’re in the line of fire for this type of charge?
Compared to other criminal offenses, white collar crime is an entirely different arena, and requires special knowledge and skill. It also requires that the defendant take action as soon as it becomes apparent that an investigation is imminent or underway, actively working with an experienced white collar crime defense attorney.
About the Author
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.