Brad Post, Host, Create the Movement: Welcome to Your Best Defense podcast. We are speaking to Oklahoma federal white-collar defense lawyer Jacqui Ford. Jacqui, how are you doing today?
Jacqui Ford, Oklahoma City Criminal Defense Attorney: I’m doing great Brad. Thank you.
B: Good. Well we have been in white-collar crimes over the past four podcasts. Four editions. A few podcasts ago we also talked to Jack Dempsey on federal white-collar crimes. Right? Anyway, I just wanted to give him a shout out. If we could, let’s talk about federal white-collar crimes. Correct?
J: Right. So, there are a great many differences between federal and state prosecutions which an Oklahoma federal white-collar defense lawyer could dwell upon for hours and hours. But, we’ll just take a few items and discuss how you find yourself in federal court, versus state court.
J: All right? Everyone’s heard the old saying “a pen is mightier than a sword.” You give some thought to that, and we understand why that might be. In Oklahoma federal white-collar defense “world”, we like to say, “You can steal more with a pen, than you can with a gun.”
J: Basically, what that means is white-collar theft is oftentimes much greater in values than even a bank robbery.
J: It’s usually taking place over a long period of time, and the values the money at that rate are much much higher. Right? So, when you use the term “white-collar crime”. Everybody thinks like hot checks, bonus checks, and bounced checks. But white-collar crime comes in a number of different forms in federal court. You talk about embezzlement fraud, Ponzi schemes – both public and private, check-kiting schemes, tax evasion, you know, false and fraudulent claims filing for Medicare fraud or Social Security fraud, workers’ compensation fraud, filing false claims with any one of these agencies could really get us in some pretty serious federal trouble.
The first and most important difference, I think, between how you find yourself in state versus federal court is jurisdictional. Right?
J: Who has jurisdiction to prosecute you? And jurisdiction isn’t something we’ve really talked about, but the crime has to be committed against the federal government, for the federal government to maintain jurisdiction over it. In most cases, you know, you think about, “Well, every hot check would be federal because every check is backed by FDIC, thereby giving rise to federal jurisdiction.” That is true, however, the federal government is a lot more cognizant of the use of their time and resources in prosecuting cases, and they’ll almost always leave hot checks and bogus checks to local authorities. Unless, we find that it’s big scheme that’s been going on, and we’re talking about large sums of money that have been written. Then, most of the time, they leave the smaller-scale violations to local government.
The exception is when you have an aggravated identity theft. Or, an organized group conducting the fraudulent transactions involving many different banks, and oftentimes, over state lines. So, you think of the big money scheme, and the federal government is going to jump in.
The theft of money from an FDIC-licensed bank, which is basically every bank that you and I might find ourselves in in today’s world. So, if a bank teller steals money, from an FDIC-licensed bank, you better expect a swift reaction from the Secret Service, or the FBI. Because this is, in fact, a federal crime, and it carries virtually exclusive jurisdiction by the federal government. Most importantly, banks must report the theft to the appropriate law-enforcement agencies. It’s part of their agreement in being insured, is that they are mandatory reporters. Regardless of the fact, whether or not the money was paid back in full, and the employee was terminated, they still have to report upon themselves.
The mandatory reporting for fraudulent activity is very vast. For Medicare-Medicaid, Social Security, U.S. Postal Service, any military organization, all of these places are governed by the federal government. So, a federal court would maintain jurisdiction. Jurisdiction just is simply, many lawyers don’t even know you can have federal DUI. You can have a federal DUI if you’re arrested by federal agent who is patrolling federally enforced land. Many of our lakes here in Oklahoma, could find ourselves with federal jurisdiction. It doesn’t happen often, but, it in fact happens.
So, it’s safe to say, that federal law-enforcement prosecutors, more often than not, would decline to file on questionable jurisdiction. If it’s hard to prove that they even have a right to prosecute, they’re probably not go to that trouble. They’re going to leave it to state agencies.
The second difference between state and federal white-collar defense is the treatment of the individuals were convicted. Right? If you’re convicted in Oklahoma of a federal white-collar crime your punishment will be governed by the United States sentencing guidelines that were passed by Congress in 1984. Basically, the purpose of the uniform guidelines was to achieve uniform sentences for individuals convicted of federal crimes. Congress felt that there was a massive disparity between the sentences across United States, and between different Circuits, and they attempted to create a uniform sentencing regime. Why is that important? Because the United States sentencing guidelines are going to directly affect how much time you’re sentenced to, and those matters are going to be directly affected by how much money you take.
So, it’s a table, and you go down the list, and then you go across to how much money, and it’s going to give you a range of punishment. The United States sentencing guidelines created this schedule of losses based upon a dollar amount that was assigned an enhanced point amount to increase your sentencing range. So, that’s anywhere from zero to $250 million. Okay? And, is always the case when you deal with schedules and charts, they’re subject to interpretation by the court. So, for example, an individual convicted of stealing credit cards, and using those credit cards up to the amount of $5000. Well, they’ve only taken $5000. So, many would argue that their punishment should be in the zero to $5000 range. In this example the District Court instead, added the credit limit to the credit card, and the credit card had a credit limit of $50,000. Therefore, there was a potential loss of $50,000, and by actually taking that credit card the defendant deprived the lawful credit card user the use of that line of credit. And the judge increased the total loss from $5000 to $50,000 – greatly affecting the sentencing of that individual. In that case, the Appellate Court agreed and said that that was appropriate.
Further, under federal law, you’ll have an aggravated identity theft which generally involves the actual stealing of another person’s identity. It carries a minimum mandatory sentence of two years, which would be run consecutive, which means on top of, in addition to, be run consecutive to the regular sentence of the person might receive. Congress again is letting us know that it feels that identity theft. stealing someone’s identity, should be punished harsher than just regular theft or regular credit card. So, me stealing your credit card out of your wallet is not going to have the same punishment as me taking the numbers from that credit card, and having a new credit card with my name and my address put on it.
And you can kind of understand the idea behind that. Especially in today’s technological world where everything is done electronically, it’s become increasingly easy to steal people’s identities. The system established by the United States sentencing guidelines leaves very little room for probation on white-collar crimes. If you have taken enough to ring the bell for federal court jurisdiction, then there’s a strong likelihood that you’ve taken enough that probation isn’t going to be something they’re inclined to give you. It is not out of the range of possibilities. Even though we have our sentencing guidelines, they are not mandatory. They are advisory only. And, if we do the right things, you find yourself in an Oklahoma federal white-collar defense lawyer’s office early, we can work around some the requirements that we know the judges are going to have. And we can put you in a position to where we can at least make a good-faith argument for probation.
And I’ve been successful in doing that in white-collar crimes were nobody believed my clients would not serve a day in prison. And based upon the work that we did, and it was a lot of work. And it was long periods. My very first ever white-collar embezzler walked out of the courtroom with me a free person, and was simply placed on probation. It’s important that you find someone who knows what they’re doing. And the sad thing is, in Oklahoma, we’re not allowed to specialize. So, anybody can claim to be an Oklahoma federal white-collar defense lawyer, but they’re not. And why that’s important is because assuming you don’t get the benefit of that probation, if you’re serving federal time, you’re serving 85% of that time. There’s no “good-time” credit in federal court. There’s no parole in federal court. You discharge the sentence that you’re given. So, basically, you if the federal government’s after you for any type of white-collar crime, you have to obtain the services of an experienced Oklahoma federal white-collar defense lawyer.
B: All right. Anything else on that?
J: I don’t think so.
B: You’ve been listening to Your Best Defense podcast. Join us for our next edition.