Wednesday, October 10, 2012

White Collar Crime FAQs

The majority of my practice focuses on the defense of federal white collar crimes, which can be a confusing area of law for people who are unfamiliar with the system.  In that vein, I've compiled some basic questions and answers regarding white collar criminal defense to help shed some light on the process.

For more information about me, my law firm, or other crimes, please visit my website at www.SoCalCrimeDefense.com, or call 424-248-6650 for a free consultation.

Q-What is white collar crime?

A-White collar crime is a term used to describe criminal conduct involving illegal acts that use deceit and concealment to obtain money, property or services, or to secure a business or professional advantage. Another way to define white collar crime is as a "paper" crime or crime that is committed in the workplace in white collar industries as opposed to blue collar industries. White collar crimes are usually not violent, but their effects can be just as devastating.

Q-Who prosecutes white collar crimes?

A-White collar crimes may be either state or federal crimes. Because they often involve lengthy investigations that can cross state and international boundaries, the federal government is usually in a better position to investigate and prosecute white collar crimes. Usually a federal prosecutor, known as an Assistant United States Attorney (AUSA), will head up the prosecution.

Q-What is a grand jury?

A-A grand jury is a group of 16-23 individuals tasked with gathering information about suspected criminal activity by listening to testimony from witnesses and examining documents and other evidence. The prosecutor acts as legal advisor to the grand jury and directs the flow of witnesses and evidence. At the end of the proceeding, the grand jury decides whether there is enough evidence to indict the defendant for the crime.

Q-Are defendants in white collar crime cases treated any differently than other defendants?

A-The courts try to treat white collar defendants no differently than other defendants. There may be a suspicion that white collar defendants receive preferential treatment, especially regarding plea bargaining, terms of pretrial release and sentencing. It is important to remember, however, that white collar crimes, while very serious, usually do not involve physical violence, and are not crimes that are committed easily. The concerns that a court might have when deciding whether to release a defendant before trial, or deciding where to place a defendant to serve a jail sentence, are not the same for a white collar defendant as they would be for a defendant charged with a violent crime. Furthermore, many white collar cases depend on the cooperation of one or more defendants. A plea bargain for one defendant that seems unduly lenient may be the only way the government has of pursuing a case against a defendant guilty of far more serious crimes.

Q-How does the prosecutor decide which cases to pursue?

A-The first thing the prosecutor looks for is a legally sound case, or one without any obvious defects that will get it thrown out of court, such as violations of the defendant's constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is enough evidence, with regard to both the quantity and the quality thereof, to make conviction probable. Finally, the prosecutor decides if prosecuting the case fits in with the office's policy objectives, or whether a more informal disposition such as pre-trial diversion may be a better option.

Q-What is restitution?

A-Restitution involves ordering the defendant to pay the victim a sum of money designed to compensate the victim for the monetary costs of the crime. Some individuals convicted of white collar crimes are also required to pay fines. The federal Mandatory Victims' Restitution Act of 1996 provides that victims may be entitled to an order of restitution for certain losses suffered as a direct result of a crime for which the defendant was convicted. Many state and federal laws also require a criminal offender to make restitution to the victim, and the court will order restitution under those laws when the offender is sentenced.

Q-What is forfeiture?

A-Though criminal forfeiture laws vary from state to state, generally, the government may seek criminal forfeiture when the property is used in the commission of a criminal offense, or was obtained through criminal activity. For example, the government may ask the court to allow it to seize an automobile purchased by a defendant with the proceeds of an inside trading scheme. The government also may seek forfeiture of money or bank accounts if it proves that the money was used in the commission of a crime or is the proceeds of a crime.

Q-Will I be able to find a job after being convicted of a white collar crime?

A-Finding a job after a conviction for a white collar crime may be difficult. Many of these crimes involve fraud and dishonesty, and employers may worry about hiring a person with a criminal conviction for fear of similar conduct occurring in the future. In addition, some employers may worry about having to disclose the fact that they hired an employee with a criminal record to shareholders or in various documents.

Q-Do I need a lawyer to represent me even if I am innocent?

A-Every criminal defendant needs an attorney. Innocent defendants are perhaps in even greater need of zealous representation throughout the criminal process to ensure that their rights are protected and that the truth prevails. Even innocent people end up in jail, so the best way to prevent that injustice is to employ the services of a seasoned veteran of criminal defense law.

Q-If I simply intend to plead guilty, why do I need a lawyer?

A-You may not understand the full implications of the crime with which you are charged. Even if you are guilty of the crime with which you are charged, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move on with your life. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved.

Tuesday, September 25, 2012

Classification of Crimes

Because the negative behavior regulated by the criminal laws varies from relatively minor to devastatingly violent, crimes are classified into levels or degrees. The classification of a crime reflects its seriousness. The actual classification of a particular offense varies depending on the jurisdiction. If you are questioned about a crime or are accused of or arrested for a crime, you should consult an experienced attorney as early in the process as possible. Contact Ann Fitz, Attorney at Law, P.C. in Los Angeles, California, to explain the particular crime involved and its possible ramifications.

Felonies


Under federal criminal law and the laws of about half of the states, a felony is a crime that is punishable by imprisonment of more than one year. Other states define a felony as a crime that is punishable by death or a prison sentence served in a state penitentiary. Generally speaking, the most serious crimes, such as those that are either particularly heinous, involve dangerous weapons or threaten relatively high amounts of financial damage or harm to property, are classified as felonies.

  • Examples of felonies include murder, treason, rape, arson, burglary and kidnapping.
  • For federal felonies, defendants have the right to be charged only by a grand jury. This right varies for state felonies.
  • Because of the seriousness of the offense and the punishment, maximum safeguards for the defendant's rights are built into the prosecution and court procedures.
  • Indigent defendants who cannot afford to hire lawyers and are facing felony charges have the right to free state-appointed criminal defense attorneys.
  • In addition to social stigma, long-term consequences may include the loss of the right to vote; ineligibility for elected office or professional licenses; restrictions on the right to possess weapons; ineligibility for housing, public benefits, educational benefits or certain jobs; immigration problems; loss of the right to serve as a juror; negative impact on parental rights or divorce proceedings; or the requirement to register with certain criminal registries.
  • Persons accused of felonies have the right to jury trials.

A limited number of crimes, such as murder, can be punished by the death penalty. These crimes are often referred to as capital offenses.

Misdemeanors


Under federal criminal law and the criminal laws in about half of the states, a misdemeanor is a crime for which the maximum possible punishment is incarceration for one year or less. In other states, a misdemeanor is defined as a crime punishable only by fine or by incarceration in a jail. Some states have different classes of misdemeanors, for example, "petty offenses" that are punishable by six months or less in jail and "simple" or "minor" misdemeanors that have a maximum punishment of 90 days in jail.

Generally, misdemeanors are crimes that are less violent or involve lower levels of harm than felonies do. The legal procedures for misdemeanors are usually simpler than for felonies, the penalties less severe and the long-term consequences less harsh.

  • Penalties typically include fines, property forfeitures or incarceration in a county jail for one year or less.
  • There is no federal right to a grand jury for a misdemeanor, and state grand jury rights for misdemeanors vary.
  • Court procedures may be more relaxed than those for felonies.
  • Indigent defendants are generally only eligible for free state-appointed legal counsel when the misdemeanor charges can result in imprisonment upon conviction.
  • Long-term consequences are normally less severe than those of felonies, although some of the felony consequences listed above may still apply to misdemeanors, depending on the jurisdiction. However, those convicted of misdemeanors generally retain the right to vote.
  • Generally, if the potential punishment is imprisonment for less than six months, there is no right to a jury trial.

Infractions


The least severe infractions are minor traffic offenses and the like. The terminology varies by state, but common terms for these offenses include petty offenses, infractions or violations of local law. Often the only penalty is a fine and sometimes the infraction may not even be considered a crime. Violations of local ordinances may be punishable by a fine or a short period of incarceration (maximum length of 90 days).

Tuesday, September 11, 2012

Right to a Fair Trial

An Overview of Criminal Defense


In recent decades, the likelihood of an arrest leading to a conviction has generally risen. Some defendants think that they can "beat the system" on their own. Those who have been through the criminal court system know better: having an experienced criminal defense attorney on your side is the best way to prevent becoming another statistic and to avert the impact of a criminal conviction.

The criminal justice system can be a very frustrating experience that is difficult to navigate for those who are unfamiliar with the territory. One misplaced step can result in a lengthy jail sentence and a criminal record that will follow you for the rest of your life. That's why it is so important to have the right criminal defense attorney fighting on your side, protecting your rights every step of the way.

Constitutional Protections for the Criminal Defendant


The United States Constitution and its subsequent amendments define the scope of governmental power and reserve certain individual rights to the people. The first 10 amendments, also called the Bill of Rights, contain basic, fundamental rights of individuals on which the government may not impinge. Many of these constitutional rights provide protection to criminal defendants in the criminal justice system. The Fourteenth Amendment extends substantive due process rights beyond just the federal system to criminal defendants in state courts, where the vast majority of criminal trials occur.

The basic constitutional rights of the criminal defendant permeate every aspect of the criminal justice process. If you have been accused of a crime, within either the state or federal jurisdiction, attorney Ann Fitz can explain these rights to you and help you to fight for them at every step of the way.

Fundamental Rights


Here are the main federal constitutional rights guaranteed to criminal defendants in the United States to promote fair trials. Remember that these rights have been refined and interpreted by the courts and an attorney can advise you about their role in and application to your particular case.

  • The right to due process of law
  • The right to equal protection under the law
  • The right to be free from unreasonable search and seizure
  • The right against self-incrimination or being forced to testify against oneself
  • The right against double jeopardy or being tried more than once for the same offense
  • The right to legal counsel
  • The right to a speedy, public trial
  • The right to an impartial jury trial
  • The right to confront witnesses against you
  • The right to call supporting witnesses
  • The right to be free from cruel and unusual punishment
  • The prohibition against ex post facto laws or laws that retroactively criminalize certain acts or increase criminal sanctions
  • The right to be free from excessive fines or excessive bail
  • The right to clear notice of criminal charges
  • The right to a grand jury in federal felony proceedings

Conclusion


Our criminal justice system is designed through constitutional protections to provide a criminal defendant with a fair trial. If you face any phase of the process, consult an experienced attorney like Ann Fitz, Attorney at Law, P.C. in Los Angeles, California, as early as possible to enlist an important ally in your quest to protect your legal and constitutional rights.

Tuesday, September 4, 2012

Constitutional Right to Counsel

The Right to Counsel


The Sixth Amendment of the US Constitution guarantees the right to an attorney to anyone facing federal criminal charges. The 14th Amendment and some state constitutions also afford this right to anyone facing state felony charges. Those who are indigent and cannot afford an attorney have the right to have one appointed to them for free. Most people, however, do not understand what the right to an attorney means, when this right attaches or who qualifies for a court-appointed lawyer.

If you are accused of a serious crime, it is essential that you retain the services of an experienced criminal defense lawyer to fight for your legal and constitutional rights throughout the criminal justice process. Contact attorney contact attorney Ann Fitz in Los Angeles, California, to speak with a criminal defense attorney about your case today.

Federal and State Law


The right to counsel is a fundamental right of criminal defendants guaranteed by the US Constitution. Many states also include this right in their constitutions, and some states provide a broader scope of the right to counsel than the federal constitution. However, defendants facing state felony charges are still entitled to counsel, even if the state constitution does not provide such a right, under the federal constitution via the 14th Amendment.

Attachment of the Right


Criminal defendants are afforded the right to an attorney throughout every critical stage of a criminal proceeding once the right has "attached." Under federal rules, the defendant's right attaches once "adversary judicial proceedings" have been initiated against the defendant. This includes when the defendant has been charged with or indicted for a crime and during a preliminary hearing, information and arraignment.

Thus, for the right to attach, the defendant must have been charged with a crime. It does not attach if the individual is merely suspected of committing a crime. It does not attach during the investigative stage prior to the filing of actual, formal charges - even if the individual is the only suspect. An arrest, without formal charges, also does not trigger the right to an attorney. This does not mean, however, that an individual being investigated for a crime cannot hire an attorney on his or her own.

Once the right has attached, the state cannot interfere with the defendant's right to seek counsel and has a duty to ensure the defendant's right is honored. The right is not available in civil or administrative proceedings or during license suspension or revocation hearings.

Appointed Counsel


In order for a criminal defendant to receive a court-appointed lawyer, the defendant cannot merely be unable to afford the representation of an attorney of his or her choosing, but must meet the definition of an indigent. The trial court has the authority to determine whether a defendant is indigent. Some jurisdictions have guidelines based on income that allow individuals meeting the criteria to be presumed indigent. Other jurisdictions, however, do not have any guidelines and must make the determination on a case-by-case basis.

In those states that determine indigence on a case-by-case basis, the court must look at the defendant's total financial circumstances, including his or her income, assets, debts and other financial obligations before deciding if the defendant can afford to pay for an attorney. Thus, just because a defendant is unemployed does not guarantee he or she will be appointed counsel.

Defendants receiving court-appointed attorneys do not have the right to have an attorney of their choosing. If the court finds that the defendant is indigent, the court will assign a public defender to the defendant. The right to appointed counsel only extends to the trial and the first appeal of the trial court's judgment.

Waiving the Right to an Attorney


Just as all criminal defendants have the right to an attorney, they also have the right to self-representation and can waive the right to an attorney. In order to waive this important right, criminal defendants must be able to prove to the judge that they are competent (have the mental capacity) to waive this right and that their waiver is knowing, intelligent and voluntary. The judge must make sure that the criminal defendant understands the disadvantages of self-representation before allowing the waiver.

Defendants considering representing themselves in a criminal trial should carefully consider the consequences of this action. Criminal defense attorneys have years of training and understand the intricate, and often confusing, workings of the law and criminal justice system. Given the complexities of criminal procedure and, more importantly, the severe consequences a criminal conviction carries, a criminal defense attorney is best suited to protect defendants' legal rights and help them achieve the best possible outcome.

Conclusion


If you or a loved one has been arrested for a criminal offense, you have the right to an attorney. It is important to begin working with an attorney as soon as possible in the process, even if you have not been formally charged with a crime. To learn more about your legal rights, contact Ann Fitz, Attorney at Law, P.C.today.

Saturday, August 25, 2012

Defenses to Crimes

Generally speaking, there are 2 basic components to every crime: the criminal act (actus reus) and the criminal intent (mens rea). Thus, the prosecution must prove not only that the defendant committed an act prohibited by the law, but that he/she also had the intent to commit the criminal act beyond a reasonable doubt for the defendant to be adjudged guilty. Attorney Ann Fitz has been successful in scrutinizing these components and negating or mitigating the mens rea in many of her cases, resulting in the collapse of the prosecution's case and, ultimately, the dismissal of criminal charges for her clients.

Accident/Mistake of Fact

If a criminal act is committed accidentally, i.e., without criminal intent or an act of recklessness that rises to the level of criminal negligence, the mens rea is negated. Likewise, if an individual honestly and mistakenly believes a fact that would render a criminal act justified, no crime actually occurs.

Self-Defense/Defense of Others/Defense of Property

Under California law, self-defense (and the defense of others) justifies a criminal act when an individual 1) reasonably believes that he/she is in imminent danger of being killed, seriously injured, or unlawfully touched; 2) believes that immediate force is necessary to prevent the imminent danger; and, 3) the amount of force exerted does not exceed the amount of force necessary to defend against the imminent danger. An individual in the state of California may also reasonably defend his/her home and property when it is reasonably believed that either is threatened by imminent harm or danger. Under this theory, you may justifiably use force against an intruder who breaks into your home or a trespasser who refuses to leave your property.

Insanity

A defendant may be not guilty by reason of insanity if it can be proved by a preponderance of the evidence that the crime was committed only because 1) the defendant didn't understand the nature of his/her act; or, 2) he/she couldn't distinguish right from wrong. Unlike other criminal defenses, the insanity defense does not completely absolve the individual from criminal liability; instead of serving a sentence in the county jail or state prison system, a defendant found not guilty by reason of insanity will be confined to a state mental health facility.

Intoxication

Voluntary intoxication is not a valid defense to a criminal act, primarily because it is considered to be "reasonably foreseeable" that a criminal act may occur if an individual chooses to become intoxicated through the use of drugs or alcohol. However, if the intoxication is involuntary - for example, someone secretly slips a drug into your drink - the criminal intent behind any criminal act committed under the influence is negated and the charges must be dismissed.

Duress/Necessity

Similar to self-defense, a criminal act compelled by the reasonable belief that one's life is in immediate danger because of another's threats or menacing actions is excused under California law. Likewise, criminal charges must be dismissed when a criminal act is committed only to avoid an even greater harm under the necessity defense.

Police Misconduct/Entrapment

Police misconduct, abuse and excessive force are serious problems in California and can result in significant doubt of a defendant's criminal liability. Examples of police misconduct that can result in a dismissal of charges include, but is not limited to: planting evidence; embellishing facts in police reports or testimony; unwarranted arrests and lack of probable cause; coerced confessions; and, entrapment. Entrapment is especially common in child pornography and drug cases. If any of these things have happened in your case, it is imperative to tell your lawyer as soon as possible to help win your case.

Wednesday, August 22, 2012

Finding a Job After a Criminal Conviction

Finding a Job After a Criminal Conviction

If you have been convicted of a crime, you may wonder if you will be able to find employment. Employers are becoming increasingly concerned about knowing whether applicants have criminal records. Part of this concern stems from large jury verdicts that have been rendered against employers for negligently hiring people with criminal histories who subsequently caused harm to others while on the job. Another concern for employers relates to whether they will have to disclose the criminal conviction. For example, if a company is trying to raise capital, it may need to make certain disclosures to a bank. Will the company have to disclose that an employee has a criminal conviction for embezzlement or money laundering?

The laws about which criminal records an employer must or may access, what an employer may ask a potential employee and what the job applicant must reveal vary widely from state to state. If you have a criminal record and are looking for a job, it is in your best interest to consult with an attorney knowledgeable in criminal law, like Ann Fitz, Attorney at Law, P.C. in Southern California, so that you go into the job search fully informed of your rights.

Conflicting Public Policies

On the one hand, the public wants to reintegrate into society people with criminal histories, rehabilitated and gainfully employed. A routine schedule and regular income lessen the likelihood that a person will reoffend, but a person with a criminal record may face prejudice in the job application process. On the other hand, it is important to protect the public from contact with prior offenders who may have propensities to re-commit. For example, convicted sex offenders should not work with children or vulnerable adults.

How Much to Reveal

Depending on the state, an applicant may not have to reveal any or some types of potentially damaging information, such as arrests not resulting in convictions or convictions for minor matters. Some states have procedures to judicially "erase" a criminal record. A criminal defense attorney can help determine whether you may be eligible to get a conviction sealed, expunged or otherwise legally minimized.

Tips for Workplace Re-entry

  • Be honest. Employers are interested in employees they can trust, and almost all information on a job application can be checked and verified. Even if it may close the door to certain positions, telling the truth is the best way to get a job that the applicant can keep over the long haul. Remember, in some states not all convictions must be revealed nor can potential employers ask for certain information.
  • Start the job search with family, friends and acquaintances that may be more likely to take a chance on hiring someone they know, despite a criminal record.
  • Do not expect the first job after a conviction to be your ideal job. It is more important to get started somewhere and create a track record, since employers know that a good indicator of future job performance is past job performance. Consider temporary or entry-level positions to build your résumé.
  • Understand where the employer is coming from. It has to balance its legal and ethical obligations to you, to its employees and to the public.
  • Investigate employment services. Most states have public agencies that administer programs to help people find employment, sometimes specifically designed for those with criminal histories.
  • Refrain from alcohol and drug use. Some employers require employee drug testing.
  • Consider the nature of your past offense. Apply for jobs where that kind of offense is less likely to be an issue of concern.

Conclusion

Completing a prison term or paying a fine can be just part of the price of a criminal conviction. The conviction can also affect post-conviction employment opportunities, but some employers are willing to give those with criminal records chances in appropriate circumstances. One job - any job - can be the first step toward rebuilding a career and a life. Attorney Ann Fitz can talk about various options and offer advice on planning for the future.

Thursday, August 16, 2012

Criminal Defense Basics

Due Process

Our criminal justice system is complex, both conceptually and procedurally. To ensure the fairness of the proceedings, each court system has its own rules of criminal procedure that govern the actions of all players: police, defense lawyers, prosecutors, judges and juries.

The US Constitution requires that criminal defendants be accorded due process of law in all proceedings against them. Broadly, this means that throughout the criminal justice process the rules of criminal procedure must be observed with all constitutional protections in place. Due process requires such things as reasonable notice of proceedings and fair hearings when a person is facing substantial negative consequences, such as incarceration.

Know your Constitutional Rights.
Classifications of Crimes.

Stages of a Criminal Case

Investigation: During the investigation of a crime, the police review the facts, interview witnesses and gather evidence against suspect(s). Once the police have enough evidence, they can ask a judge to sign an arrest warrant for a suspect.

Arrest and Bail: After being arrested, a suspect will go before the judge, who will either set bail or decline to set any bail so that the suspect must remain in jail until the trial. Bail is an amount of money that the suspect must post so that he or she can get out of jail. The amount of bail depends on a number of factors including the severity of the crime the suspect is accused of, the strength of the prosecution's case, whether the accused has a criminal history and whether the suspect is a flight risk. If the suspect shows up for future court dates, the bail money is returned. If, however, the suspect doesn't show up or flees, the court will keep the money and issue an arrest warrant.

Arraignment: The accused first appears before the judge at an arraignment. At this proceeding, the judge informs the accused of the criminal charges against him or her, asks the accused whether he or she has an attorney or wants a court-appointed attorney, asks how the accused will plead to the charges, determines whether to modify the initial amount of bail and sets a schedule for future court dates.

Preliminary Hearing: In felony cases, a judge or magistrate will hold a preliminary hearing during which the prosecution must show that there is enough evidence supporting the charges against the defendant so that the case can proceed to the next stage. It is an adversarial proceeding and the defendant's attorney has the right to cross-examine the prosecution's witnesses. It is also sometimes called a "preliminary examination" or "probable cause hearing."

Plea Bargaining: Sometimes a criminal defendant and the prosecution can negotiate an agreement that resolves the criminal matter. Usually, the prosecutor agrees to reduce a charge, drop some of multiple charges or recommend a more lenient sentence in exchange for the defendant's guilty plea, often to a lesser offense. A seasoned criminal defense attorney can be a real advantage to a criminal defendant throughout the plea-bargaining process.

Trial and Sentencing: At trial, the prosecutor and defense attorney will give opening and closing statements, introduce evidence and question witnesses. If a defendant is found guilty, the court will impose a sentence, which may include incarceration, fines, court costs, restitution and probation. For minor crimes, the sentence may be issued right away. For more serious crimes, the prosecution and defense will submit evidence and arguments about what the appropriate sentence should be. In some states, a judge will decide the sentence. In other states, sentencing is a completely separate from the trial, with a different jury determining the sentence. During this separate sentencing phase, the prosecution will present aggravating factors to argue for a harsher sentence and the defense will present mitigating factors in favor of a lesser sentence. Also, before the sentence is issued, the defendant has the right to allocution, which is when the defendant can address the judge directly. It may be a chance for the defendant to apologize, show remorse or explain his or her actions.

Impact of a Criminal Conviction.

Conclusion

To better protect yourself throughout your involvement with the criminal justice system, consult with an informed, knowledgeable criminal defense attorney like Ann Fitz, Attorney at Law, P.C. in Los Angeles, California. Ann Fitz will work hard on your behalf to see that protections afforded criminal defendants are preserved for you.