When the FBI Comes Calling
What is white-collar crime exactly?
White-collar crime is a broad term that covers a variety of nonviolent crimes that are alleged to involve fraud in one form or another. Examples include bribery, insider trading, environmental crime, embezzlement, forgery, tax evasion, kickbacks, and money laundering. According to the FBI, white-collar crimes total more than $300 billion annually.
Where does the term "white-collar crime" come from?
Edwin H. Sutherland, a noted sociologist, first coined the term "white-collar crime" in 1939 in a speech he gave before the American Sociological Association. Sutherland later defined white-collar crime as "a crime committed by a person of respectability and high social status in the course of his occupation."
What's the difference between white-collar crime and street crime?
The most salient difference between white-collar and street crime is the means by which offenses are carried out. Street crimes usually involve physical force; white collar crimes, on the other hand, usually involve the manipulation of information, either on paper or electronically.
What agencies investigate white-collar crime?
White-collar offenses often fall under federal jurisdiction. If personnel from one or more of the following federal agencies have questioned you, you may be the target of a white-collar crime investigation:
Federal Bureau of Investigation
Securities and Exchange Commission
Internal Revenue Service
United States Treasury
United States Postal Service
U.S. Citizenship and Immigration Service
How can I tell if I'm under investigation for a white-collar crime?
Unlike street crimes, in which the subject is usually unaware of the investigation, investigations of white-collar offenses have a well-defined target or pre-indictment phase. A prosecutor might be gathering evidence to present to a grand jury if one or more of the following have happened to you or to people whom you know:
You are contacted by a representative of any of the federal agencies listed above.
You are contacted by a representative of an analogous state agency.
You receive a grand-jury subpoena to produce business records.
You are presented with a search warrant to seize business records.
You receive a target or subject letter informing you that you are under investigation.
What's a target letter?
A target letter is a letter that a federal prosecutor sends to inform someone that he or she is the target of a federal investigation. The letter informs the recipient of the nature of the charges being investigated (e.g. insider trading, wire fraud, etc.).
Target letters are sometimes sent during the target or pre-indictment phase of a white-collar crime investigation. As might be expected, a target letter advises the recipient of his or her rights, in particular the right to counsel and the right not to testify. If you receive a target letter, you are likely going to be indicted.
What does a target letter look like?
The following is a sample target letter taken from the United States Attorney's Manual:
This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the District of ___. It is their responsibility to inquire into federal crimes which may have been committed in this District. As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify. We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to *. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice. You are advised that you are a target of the Grand Jury's investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.
What should I do if I receive a target letter?
If you have received a target letter, the first thing you should do is retain a lawyer. The last thing you should do is try to handle the situation yourself.
The sooner you retain a competent white-collar defense lawyer during the pre-indictment phase, the easier it will be for him to deal with the evidence being gathered against you.
What should I do if I am contacted by investigators?
If you are contacted by federal or state investigators, it is very important that you do not give statements or cooperate until you have spoken with an attorney. The investigators are not your friends. Speaking to them or otherwise helping them will only hurt you in the long run. Investigators have only a singular mission: to build a case against you.
A skilled white-collar defense lawyer might be able to get the investigators to either close the investigation or change its focus.
What could happen to me if I'm convicted of a white-collar crime?
The penalties for white-collar crimes vary according to the nature and degree of the offense; however, punishment for a white-collar offense typically includes one or more of the following:
Prison
Fines
Restitution (the return of money or property to the victim)
Forfeiture (the giving up of money or property)
Supervised release
Home detention
What are some of the possible defenses to a white-collar crime?
If you are facing a worst-case scenario and have to go to trial, a skilled white-collar criminal defense attorney will examine a variety of defenses.
Duress is a possible defense. Duress is "a threat of harm made to compel a person to do something against his or her will or judgment" (Black's Law Dictionary)
There are also defenses and defensive strategies specific to white-collar crime. Here are a couple of examples:
Entrapment is a common defense in white-collar crime cases in which law enforcement officials have coerced a defendant into committing a criminal act that he or she otherwise would not have committed.
Absence of intent is yet another common defense because intent is an inherent part of most white-collar crimes. If your attorney can convince prosecutors, a judge, or jury that you lacked the intent to commit a crime, he may be able to obtain a favorable outcome for you.
What should I look for in a white-collar defense attorney?
Competence. Because most white-collar crimes fall under federal jurisdiction, you need an attorney who understands federal criminal law. Furthermore, not only do you need an attorney who understands the white-collar offense at issue, you need an attorney who is familiar with the federal rules of criminal procedure, civil procedure, and evidence.
Besides being familiar with federal rules, your white-collar defense attorney should also be familiar with government strategies in white-collar cases. For instance, the government has recently made increasing use of civil enforcement tools (e.g. asset forfeiture, actions under the False Claims Act, and regulatory investigations).
If I am interviewed as part of an internal company investigation, may I have my lawyer present?
Rarely. The company will always put its interests before yours. The company's own attorneys invariably conduct such interviews. They will give you a number of reasons why you don't need your own counsel present, not the least of which is that the interview is privileged. They'll also intimate that you don't really have anything to worry about. However, if your company experiences even the slightest pressure from a federal prosecutor, the company and its attorneys will often waive privilege and hand over the results of their internal investigation.
Of course, you don't have to participate in the interview, but refusal may result in your termination. In such a situation, you are most definitely between a rock and a hard place. You need experienced legal counsel to help you make the decision that is best for you.
What is a Guidelines analysis?
Guidelines analysis is a tool on which a competent defense attorney bases his or her strategic decisions in a criminal case. The term refers to Federal Sentencing Guidelines, a manual to which federal judges must refer when calculating sentencing ranges.
Federal judges aren't bound by the Guidelines, however. The Guidelines became advisory following a 2005 U.S. Supreme Court case called *U.S. v Booker*. However, every competent attorney practicing in the area of white-collar crime will engage in a form of backwards planning. He or she will determine both the worst-case and best-case scenario under the Guidelines.
What should I do if I'm arrested on some sort of white-collar charge?
Don't run. Evidence that you attempted to flee will be used against you, both at trial and at sentencing.
Don't explain. You can only hurt yourself by talking. Invoke your right to remain silent: "I'm not going to say anything until I speak to my attorney."
Don't give permission to search your person, your personal effects, your car, or your house or apartment. If ordered to turn over your bag or your keys, say: "You don't have my permission to search." You can then hand over the item. If there are witnesses nearby who overhear your statement, it may be possible for your attorney later to exclude from evidence what is found.
Don't try to be nice. Trying to convince them of your innocence is useless. What you say can and will be used against you.
Don't believe what they tell you. They can lie to you in a number of ways to get you to talk. In fact, they will exert many different forms of psychological pressure on you. Just remain silent and wait to speak with your lawyer.
Don't invite them inside your home. And don't step outside either. To enter your home, they must have a warrant. Don't make anything easy for them. Simply say "I'll just stay right here" or "May I please see your warrant?" If they don't have a warrant and go away, contact your attorney immediately.
Don't agree to secure your car or go into your home. They can follow you and conduct a warrantless search.
What is a "knock and talk," and what should I do if I find myself facing one?
An "knock and talk" is a technique federal agents use to conduct an interrogation without going to the trouble of obtaining a warrant or arresting you.
Here is a typical scenario: Two FBI agents show up at your office unannounced. They state that they need some information and would appreciate it if you could help them out. Not wishing to appear uncooperative, you agree. The meeting starts out friendly and low-key. They begin by asking seemingly harmless questions about your company. One agent does the talking; the other takes notes and says nothing.
However, as the meeting progresses, their tone changes, and the questions start to focus on particulars. You start to realize that this meeting isn't friendly at all. You want to end the meeting, but you don't want this to be seen somehow as an admission of guilt. What do you do?
Terminate the meeting immediately and call your attorney. You are under no legal obligation at this point to answer their questions. To be forced to answer questions, you must be served with a grand jury subpoena, and even then, you are obliged to answer questions only before the grand jury.
Consider carefully the attorney you contact. Most in-house counsel are not criminal lawyers; even fewer are skilled white-collar defense attorneys. A skilled, experienced white-collar criminal defense team can assist you in a variety of ways. They can help you decide whether to cooperate with the agents. Having counsel present will suppress the agents' inclination to question you aggressively. Most importantly, having good white-collar defense counsel will enable you to formulate a strategy and prevent you from making costly mistakes.
What should I do if indicted on a white-collar charge?
If you are indicted on charges of having committed a white-collar crime, one of the biggest mistakes you can make is to start discussing your case with people other than your white collar defense attorney. If someone asks about your case, simply say that you have legal representation and are not at liberty to discuss the matter.
If you do not yet have competent white-collar representation and are questioned, just say that you're in the process of finding an attorney and cannot discuss the matter.
Remember that remaining silent is not the same as stating that you are under representation. This difference becomes especially important when you talk to law enforcement authorities. If you have not been arrested, or are not otherwise in the custody of law enforcement, your silence can be seen as an admission of guilt. However, if you have been arrested, or are in custody, your silence cannot be used against you. The best policy in all circumstances is just to say that you have legal counsel (or are seeking it) and cannot discuss the matter.
Among the most terrible mistakes that any white-collar crime suspect can make is to destroy what the authorities could consider evidence or ask others to somehow cover the truth. You can be completely innocent, but you will convince the prosecutor of your guilt if you tamper with documents or tell others to obfuscate. When such behavior is revealed in court, the effects can be catastrophic.