Criminal law – Fraud

The topic that I chose to write my capstone about was Criminal Law. While criminal law can seem like a very broad subject, therefor many citizens of the United States do not actually understand exactly what is all involved when it comes to criminal law. People often mistake a criminal law infraction with something that is categorized as a civil law violation and vice versus. During my capstone I hope to clear up the differences by thoroughly explaining the differences between civil and criminal law and what constitutes the event as a criminal act.

I will also detail the safeguards that are provided to the defendant by the U. S. Constitution. To further define criminal law I will provide criminal crimes that are affecting businesses and provide examples of some courtroom outcomes. The United States follows due process, which means that an individual is innocent before proven guilty; I will provide examples of defenses that one might use to prove their innocence. To conclude my capstone, I will give my detailed opinion of the standards that are put in place by certain criminal laws and how they affect the businesses of this country.

For beginners criminal law can be defined as prosecution by the government of an individual for an act or event that has been considered as a crime. Civil law cases on the other hand are when organizations or individuals are petitioning to resolve a certain legal dispute. When the state, through a prosecutor initiates a suit it would result in the event in question to become a criminal case. Once an individual brings a suit against another individual or organization to the table, it now becomes a civil case.

The website, cornell. edu/wex/Criminal_law defines a crime as “any act or omission (of an act) in violation of a public law forbidding or commanding it. “ (Cornell. edu, 2010) Local, state and federal governments establish most of the laws that constitutes what are considered crimes, however some criminal laws vary from state to state. So why civil law spells out the duties that exist between individuals and their governments, criminal law has to do when a crime is committed and wrongdoing was proclaimed against society.

Crimes are meant to include both felonies, which are more serious offenses like murder or rape, and less severe crimes like petty theft and jay waking. These less sever crimes are called misdemeanors To be convicted of a crime an individual must be convicted of the performance of a prohibited act and to have the intent or state of mind to take part of the actor. All statues describing any criminal behavior can be broken down into their various elements. Prosecutors must prove each and every element when convicting an individual of a crime.

The website, http://www. law. cornell. edu/wex/Criminal_law, also states, “the prosecutor must persuade the jury or judge “beyond a reasonable doubt” of every fact necessary to constitute the crime charged. In civil cases, the plaintiff needs to show a defendant is liable only by a “preponderance of the evidence,” or more than 50%. ”(Cornell. edu, 2010) For example, to get a conviction on a murder case, prosecutors would have to show that the defendant has the right mental state that shows intent on taking another individuals life.

For a theft conviction, the individual must have knowledge that the property did not belong them and belong to some one else, and knowingly has the intent on depriving the owner of their possessions. Corporate directors and company officers are held liable for crimes that they commit personally, even if it was of no benefit of their own. In addition to being held liable for crimes that are committed by individuals that they are directly managing. Corporation’s can also be charged with crimes committed by individuals, however it is the highest-ranking personal that was directly involved that takes the fall for the crimes at hand.

The United States Constitution offers up a form of protection for any citizen against all the force and resources that the state will bring against criminal law. The following chart explains the constitutional safeguards which are amendments four, five, six and eight provide. CONSTITUTIONAL SAFEGAURDS FOURTH AMENDMENTProtection form unreasonable search and seizures and offers the requirement that no warrants for a search or arrest can be issued without probable cause.

FIFTH AMENDMENTNo one can be deprived of life, liberty, or property without due process of the law, prohibits double jeopardy and requires that no person can be forced to incriminate him or herself. SIXTH AMENDMENTGuarantees the right to a speedy trial, trial by jury, a public trial, the right to confront witnesses and the right to a lawyer. EIGHTH AMENDMENTSimply prohibits against excessive bail and fines or the use of cruel and unusual punishment. The Untied States Supreme Court ruled that most of these safeguards provided by the constitution be upheld not only in a federal court but a state court as well.

One note to point out though is that it is possible to try a defendant in criminal court and then try the same defendant in civil court for the same event. This trying of the defendant in both criminal and civil court would not be classified as double jeopardy. Ronald B. Standler better explains double jeopardy in an article published in 1998 titled “ Differences between Civil and Criminal Law in the USA”, Standler wrote, “ prohibition of double jeopardy takes two forms: 1. A defendant who is found “not guilty” of a more serious charge can not have a second trial on a lesser-included offense.

For example, if D is found “not guilty” on a charge of felony murder (e. g. , incidental killing of someone during the commission of a felony, such as robbery), then D can not be tried for the underlying felony (e. g. , robbery). ? 2. The prosecution can not appeal a “not guilty” verdict. Of course, the criminal defendant can appeal a “guilty” verdict and an incarcerated criminal can file a “habeas corpus” writ. ” (Standler, 1998) While I will be covering some of the defenses that defendants can use later on in this capstone, it is important to note now that ignorance of the law is no excuse.

Ignorance excuses no man from the crimes that he committed; if everyone just pled ignorance the law system would collapse. It is important as a citizen of the United States to not only understand the laws and crimes of this country but also to know and understand your rights as well. It is required by law, that individuals that have been arrested to be informed of their basics rights such as: the right to remain silent and the right to obtain counsel. While many crimes may only affect a small group of individuals, there are some crimes that can collapse an entire corporation, and in turn ruin the lives of many involved.

These “white-collar crimes” are acts committed by businesses or an individual by using some nonviolent means to obtain either personal or business advantages. Some white-collar crimes can include but not limited to, forgery, robbery, larceny, embezzlement, mail and wire fraud, cyber crimes, bribery, and racketeering. Many of us probably have been guilty of forging a document at one point in our lives. Most likely it was Mom’s signature on a report card with a less then satisfactory grade on it, though. Forgery in the business world can have substantial consequences, much more then getting caught signing Moms name.

Forgery in the business sense is classified as fraudulent altering of any written document in the way that changed the legal rights and/or the liabilities of another individual. An example of forgery would be if I signed someone else’s name on a check or changed a trademark. Most common practices of forgery are falsifying public records, counterfeiting and altering a legal document. Many politicians are found guilty of falsifying pubic records for campaign purposes, to look better in the publics eye. Two of the most commonly mixed up white-collar crimes are that of robbery and larceny.

Robbery can be defined as the forceful act of taking personal property of value from another. This use of force and intimidation is required for the act to be considered robbery. On the other hand, larceny is considered the fraudulent intent to deprive an owner permanently of property. A good example that shows the differences from these two crimes is the act of picking someone’s pocket. The person does not know that you stole his or hers possession, and if no force was involved it would be considered larceny. You still withheld the individual’s personal property from them, but with no force involved, it is not considered robbery.

If you had shoved them to the ground or used a weapon to intimidate them, then it would then be classified as a robbery. Another white-collar crime that has been on the rise as of late is the act of embezzlement. Embezzlement is the fraudulent appropriation of money or other property by a person to the money or property has been entrusted, typically this occurs when an employee steals money or fraudulently covers up the conversion of money for his or her own benefit. Two of the most high profile cases of embezzlement in the past century were the cases of the Enron Corporation and the ponzi scheme, which was masterminded by Bernard Madoff.

Enron was a corporation that grew from nowhere to become the countries 7th largest company. At their peak they employed over 21,00 people in more than 40 different countries. It turned out that all the firms’ success was nothing more than a large scam. “By using accounting loopholes, special purpose entities and poor financial reporting, senior executives were able to hide billions in debt from failed deals and projects. Among the firm’s crimes were: manipulating the Texas power market, bribing foreign governments to win contracts abroad and manipulating the California energy market.

” (Businesspundit, 2009) Enron’s luck finally ran out when in 2001 author Bethany McLean wrote an article titled “Is Enron Overpriced? ” and questioned whether the companies stock prices –which were trading 55 times its earning- could hold up in the long run. This peaked the interest of the SEC, which prompted an investigation of the company. When it was all said and done, Enron was found to of lost more the $1 billion in shareholders money before being forced into Chapter 11 bankruptcy, which resulted in some serious jail time for the leading officials at Enron.

Chief Accounting Officer Rick Causey was sentenced to 7 ? years in jail, Chief Financial Officer Andrew Fastow was sentenced to 6 years in jail, Jeffery Skilling a former Enron CEO was sentenced to 24 years in jail and Kenneth Lay another former Enron CEO died before being sentenced. Bernard Madoff on the other hand, created what is probably known as the biggest corporate con in history. Madoff created a massive ponzi scheme by encouraging investment from wealthy individuals and companies around the world and the using them to further his own investments rather than to payoff existing investors.

Madoff “tapped local money pulled in from country clubs and charity dinners on the so-called ‘Jewish circuit’ of wealthy New York Jewish businessman. The former chairman of the NASDAQ stock exchange was held in such high regard, investors actively sought him out to casually plead with him to manage their savings so they could start reaping the steady, solid returns their envied friends were getting. ” (Businesspundit, 2009) Doubts began to arise as early as 1999 about Madoff and the tactics he was using, but if it not had been the recent credit crunch, he may have went undetected.

In the end, prosecutors estimated that Madoff embezzled more than $65 billion from the accounts of over 4,800 clients. Bernard Madoff was sentenced to 150+ years in jail and ordered to pay out $170 million in restitution, which is just a small portion of what so many had lost in his hands. In the computer age that we are living in today, it is of no surprise that many more crimes are happening electronically. We classify these crimes that are committed virtually over the Internet as opposed to the physical world, as cyber crimes.

Some of the ways in which computers can be used to commit a criminal activity are financial crimes, identity theft, cyber stalking, and hacking and cyber terrorism. The dependence of doing business over the Internet has left companies vulnerable to sabotage, fraud, and embezzlement and data proprietary theft. For example, Bernard Madoff did most of his embezzlement work over via the Internet, so his gross misconduct would also been classified as a cyber crime. The most common cyber crime that is committed is the act of identity theft.

Identity theft occurs when someone uses your personally identifying information, like your name, Social Security number, or credit card number, without your permission, to commit fraud or other crimes. Many of this information can be found by hackers that follow your moves on the Internet such as purchasing an item from non-secure websites. Once thieves have your personal information, the can commit a series a crimes such as credit card fraud, phone or utility fraud, bank/finance fraud as well as government document fraud which would include driver’s license or ID cards and Social Security cards.

According to ftc. gov, you can find out if you are a victim of identity theft is to “monitor your accounts and bank statements each month, and check your credit report on a regular basis. If you check your credit report regularly, you may be able to limit the damage caused by identity theft. ” (Ftc. gov, 2012) If you come to find that you have fell victim of identity theft, it is advised to immediately file a police report. You must report specific details about the identity theft and well as file an ID theft complaint with the FTC.

Penalties if convicted of a cyber crime include being charged with a felony which results in fines and imprisonment for up to 20 years. If a person is found to have both the commission to be accused of a crime as well as to be found in the right frame of mind to commit a crime, there are defenses that are used to try to excuse the defendants criminal behavior. Four main defenses are infancy, insanity, entrapment and immunity. Infancy is used when a person is thought to be to young when they allegedly committed the crim. In some cases a child is tried as an adult if he or she is above a certain age and is charged with a felony such as murder.

Laws for minors differ from state to state and all depend on what crime was committed. Insanity is used when someone is thought to be suffering form a mental illness and is deemed by the judge incapable of presenting the correct state of mind to commit the alleged crime. If the person lacks the mental capacity to recognize the wrongfulness that they have just been accused of, the insanity plea is submitted. One defense that is designed to prevent police officers and other government officials form encouraging crimes in order to apprehend persons form wanted acts is called entrapment.

A scenario where an undercover cop suggests or pressures an individual commits a crime such as buying some drugs. Would the individual have committed the crime, if the undercover cop didn’t pressure him or her into buying the drug? This is the sticky point when dealing with entrapment cases. The last defense that could be used is immunity and is granted to us by the Fifth Amendment of the U. S. Constitution. Immunity prevents an individual from having to give up information that could be used against them.

To get the information out of the individual, prosecutors would offer a deal of immunity for the information, resulting in being charged for lesser of a crime. Once immunity is given to an individual that is accused of a crime, they can no longer refuse to testify in a court of law. It is in my opinion that I agree with the laws and standards that have been put into place for this country. I feel that the U. S. Constitution not only provides clarity of what is expected from us as citizens, it also shows remorse for those that cannot defend them selves.

It is unfortunate that many of these crimes can and will be committed, however, I am glad that there is a system that is place to make individuals that feel the need to commit these crimes to be held accountable. It is our responsibility as citizens of the United States to understand and appreciate these laws that have been laid out before us. If we choose to not abide by these set of rules, we as adults, have to understand that we will and should be held accountable. The punishments that are a result in committing these crimes are justified and any individual that does not follow the laws should be prosecuted in fullest.

References Criminal Law: An Overview. (2010, August 19). Retrieved from http://www. law. cornell. edu/wex/Criminal_law Fighting Back Against Identity Theft [Fact sheet]. (n. d. ). Retrieved July 13, 2012, from http://www. ftc. gov/bcp/edu/microsites/idtheft/consumers/about-identity-theft. html Julian (Ed. ). (2009, December 14). 10 Biggest White-Collar Crimes In History (and How They Were Unraveled). Retrieved from http://www. businesspundit. com/white-collar-crimes-history-and-how-they-were-unravelled/ Standler, R. B. (1998). Differences between Civil and Criminal Law in the USA. Retrieved from http://www. rbs2. com/cc. htm.