White Collar Lawyer

John T. Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is rated a Super Lawyer on Thomson Reuters’ prominent list of outstanding lawyers. He has successfully represented top executives and leading business people under investigation for allegations of serious criminal conduct and regulatory violations with criminal implications.

White collar crime trials are complex. An ordinary criminal trial may take only a day or two to complete and involve testimony from just a few witnesses. In white collar crime prosecutions, however, the government makes its case as difficult as possible, overwhelming the jury with a barrage of physical exhibits, complicated charts, electronic evidence such as emails, volumes of financial records, and dozens of witnesses, including professional experts who make a living testifying for government prosecutors.

This prosecutorial strategy is often designed to confuse and mislead the jury. They wear juries down with weeks of hard-to-understand testimony and difficult-to-comprehend financial records. Government prosecutors want the jury to presume guilt based on the sheer weight and volume of mostly irrelevant evidence, creating a “smell” of wrongdoing. This is the very flaw in the government’s case that a skilled defense attorney can spot and use to his advantage.

Bank Fraud Priority of DOJ

To understand how complex fraud cases can be, let’s look at bank fraud.

The U.S. Justice Department’s Criminal Division Fraud Section handles bank fraud prosecutions. The Fraud Section has published its own manual for the prosecution of financial institution fraud cases, entitled Financial Institution Fraud Federal Prosecution Manual (1994) (FIF Manual), which is used by all U.S. Attorneys’ Offices nationwide.

AUSAs use another resource manual, the Criminal Resource Manual, which contains information on all types of financial institution fraud, including the laws used to prosecute bank fraud. To understand how complex AUSAs can make FIF (white collar crimes) prosecutions, below is a list of related offenses used in bank fraud prosecutions:

• Bank Fraud: 18 U.S.C. § 1344.
• Embezzlement, Abstraction, Purloining or Willful Misapplication: 18 U.S.C. §§ 656 and 657.
• False Statements: 18 U.S.C. § 1014.
• False Entries: 18 U.S.C. § 1005 and 1006.
• Bank Bribery: 18 U.S.C. § 215.

U.S. Attorney General Loretta Lynch recently announced that the Justice Department will place a much greater emphasis on white-collar crime prosecutions, particularly bank fraud. As white-collar crime expert William K. Black said in a September 11, 2015 piece for Campaign For America’s Future, the Justice Department has not trained its AUSAs and the FBI on how to “understand, detect, investigate, and prosecute the ‘accounting control frauds’ that caused the financial crisis” that nearly destroyed the nation’s economic system.

As criminal defense attorneys, we see many problems and a trove of flaws that will inevitably fall out of the Justice Department’s new crackdown on white collar crime, especially those connected to large corporations and financial institutions. Many financial institution executives, as well as lower-level employees, will be wrongfully targeted for investigation simply because of the widespread nature of the violations. Their careers, reputations, savings, and families will be ruined because the Department is now trying to make up for a failed prosecutorial policy that allowed many true bank fraudsters to walk away from their wrongdoing during the 2008 economic meltdown. We feel that many innocent executives will now pay the price for that failure.

Black called attention to the “paramount concern” the Justice Department’s top criminal prosecutor, Lanny Breuer, now has about fraud epidemics in our financial institutions.

If AG Lynch sticks to her new policy, the days of banks and their executives being “too big to prosecute” are over.

While we recognize that fraud is a serious problem in our financial institutions, we question whether it has reached “epidemic proportions.” It sounds more like a witch hunt that will inevitably lead to a lot of innocent or tangentially involved, minor participants being prosecuted as “white collar criminals” in order to fulfill a policy pledge.

Cybercrime Typically Federal

White collar and cybercrime are usually indicted and prosecuted at the Federal level because of the interstate nature of these offenses. Possible penalties for these offenses can include incarceration for a significant number of years to life imprisonment, generally determined by the U.S. Sentencing Guidelines. There are also fines for restitution, court costs, and damages suffered by the victims of these offenses.

In addition to criminal sanctions, a defendant convicted of these crimes may face civil litigation by private businesses or corporate entities seeking to recover economic losses.

Using Experts to Fight the Allegations

The law is constantly changing with respect to white-collar and cybercrimes. These kinds of offenses frequently require criminal defense attorneys to use “forensic experts” and experienced investigators to fight the charges. Forensic experts can examine a defendant’s computer hard drive and, after careful analysis, offer possible defenses. Investigators, including skilled CPAs, can review the volumes of paperwork and documents associated with these cases to determine the validity of the Government’s charges.

Corruption and Bribery

Corruption charges against state or local officials, on the other hand, often involve videotaped surveillance of criminal transactions, electronic intercepts, GPS tracking, cellphone pings, volumes of incriminating documents, bank statements, and eyewitness testimony. Federal prosecutors will often dump huge amounts of discovery documents and information upon defense attorneys in corruption cases to force them into cumbersome review, investigations, and the hiring of skilled experts to examine the maze of documentary evidence.

The Importance of a Skilled White Collar Lawyer

Regardless of whether you are facing serious white collar or cybercrime charges in federal or state court, the consequences of a conviction can impact the rest of your life.

If you hope to avoid incarceration, heavy fines, and a lasting stain on your permanent record, you will need an aggressive, intelligent, and innovative defense. The right attorney can be the difference between suffering a lengthy period of incarceration or avoiding criminal charges altogether. You need a lawyer who understands the intricacies of white-collar and cybercrime criminal defense and has extensive experience successfully representing clients facing these charges.