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Felonies & White Collar
Crime
Criminal law defines
conduct that is prohibited by the government and
the range of penalties that can be imposed for
violating these laws. Persons who violate
criminal laws incur penalties including fines,
imprisonment and, in some states such as Texas,
execution. All crimes are defined by statutes,
which are organized into books of rules known as
criminal or penal codes. The federal government
has a criminal code that regulates certain
crimes nationwide, and the Texas criminal
statutes are collected into the Texas Penal
Code. Most criminal activity violates either a
state law or a federal law, not both; an
important exception is drug crimes, which can be
prosecuted in either state or federal court or
both.
Every crime is defined
by a list of elements. In a criminal trial, the
prosecutor attempts to prove all the elements of
the crime the person is accused of committing.
If the judge or the jury decides all the
elements of the crime have been proven, the
accused person is guilty of the crime. If the
prosecutor cannot prove all the elements, the
accused will not be found guilty of the crime.
Anyone who, with intent
to commit a crime, takes a substantial step
toward committing the crime may be guilty of attempt
to commit a crime. Merely thinking about
committing a crime, or even preparing for it, is
not a crime. There must be a substantial step.
For example, if someone buys a gun with intent
to kill another person, the act of buying the
gun is mere preparation. However, going to a
person's house after buying a gun with intent to
kill the person may be a substantial step that
is enough to charge a person with attempting to
commit a crime.
The law of conspiracy
and the law of aiding and abetting are other
general doctrines that apply to a wide range of
offenses. A conspiracy is an
agreement between two or more persons to commit
a crime. For example, if three people conspire
to commit murder, at least one of them takes
action to further the conspiracy, and the murder
actually occurs, they can all be charged with
both conspiracy and murder. Even if a
conspirator backs out of the conspiracy, but the
other conspirators commit the crime, all
conspirators may be criminally liable if the
acts were reasonably foreseeable.
A person who
intentionally aids or advises another in
committing a crime may be guilty of aiding
and abetting, and may be criminally
liable for the acts of the other person, as
well. Thus, if someone intentionally advises
another how to commit robbery and lends the
robber a car to use in the getaway, both people
are equally liable under the law.
Criminal codes penalize
a variety of activities. Generally, an offense
is any violation of the Texas Penal Code. The
Penal Code divides offenses into two major
categories: felonies and misdemeanors. Felonies
are crimes for which a person may be sentenced
to imprisonment in the state institutional
division or to death. Misdemeanors are lesser
crimes for which a person may be sentenced to
imprisonment in a jail and/or a fine. The most
violent crimes, such as murder and rape, as well
as so-called white collar crimes, generally are
felonies under the Texas Penal Code.
Homicide is unlawfully
causing the death of an individual. There are
four types of homicide: murder, capital murder,
manslaughter, and criminally negligent homicide.
Most forms of homicide are felonies.
Murder
is causing the death of an individual under any
of the following circumstances:
- By intentionally or
knowingly causing the death
- By intending to
cause serious bodily injury and committing
an act that clearly endangers human life
- While committing a
felony and committing an act that clearly
endangers human life
- While fleeing from
committing a felony and committing an act
that clearly endangers human life
Murder is divided into
subcategories by degree of seriousness. If the
defendant commits any of the above acts, he or
she will be charged with murder. At the
sentencing stage of the trial, if the defendant
is able to prove he or she committed the murder
while immediately influenced by sudden passion,
and that the passion arose from an adequate
cause, the defendant will be sentenced for
murder of the second degree. Otherwise, the
sentence is for murder of the first degree.
Capital murder
is similar to murder. A person convicted of
capital murder will receive a death sentence.
Capital murder is murder under any of the
following circumstances:
- Murder of someone
the defendant knows is a peace officer or
fire fighter acting in his or her official
capacity
- Murder committed
intentionally during an aggravated sexual
assault, arson, burglary, kidnapping,
obstruction, retaliation, or robbery
- Paying another to
commit murder
- Murder while
escaping from prison
- Murder while
incarcerated, if the victim is a prison
guard or the defendant is incarcerated for
aggravated robbery, aggravated sexual
assault of a child, or murder
- Murder of more than
one person at once or during the same scheme
or course of conduct
- Murder of a child
under the age of six
If the jury in a
capital homicide case does not find the
defendant guilty beyond a reasonable doubt, the
charge may be reduced to murder or another
lesser offense.
Manslaughter is
defined as recklessly causing the death of a
person. Manslaughter is a felony of the second
degree. Criminally negligent homicide is
a state jail felony, and is defined as causing
the death of an individual by criminal
negligence.
Under Texas law,
assault is a misdemeanor; however, assault
becomes the more serious crime of aggravated
assault if the offender uses a firearm or other
deadly weapon, the assault causes serious bodily
injury, the assault is in retaliation against a
witness or informant, or the assault is against
a government employee acting in his or her
official capacity. Generally, assault is defined
as intentionally, knowingly, or recklessly
injuring or threatening to injure a person or
the person's spouse. Additionally, assault
includes intentionally causing physical contact
with another person if the offender knows the
physical contact will be offensive to the
victim. In one Texas case, the defendant argued
that he should not be convicted of aggravated
assault because the knife he used was not a
deadly weapon. However, a physician testified
that the knife had caused a six-inch wound and
cut through the victim's rib cage, and certainly
was capable of causing death. Because the
defendant could not offer enough evidence to
prove otherwise, his conviction for aggravated
assault was affirmed.
Criminal sexual
assault--also known as rape--is a
felony that carries with it severe penalties.
Sexual assault is intentionally or knowingly
penetrating the anus, female sexual organ, or
mouth of another person, without that person's
consent. Under the law, the victim is said not
to have consented to the actions if the assault
is under one of the following circumstances:
- The victim is unable
to consent or to resist because of a mental
disease or defect
- The victim is
physically unable to resist, unconscious,
impaired by ingestion of a substance forced
on the victim by the defendant, or unaware
that the assault is occurring
- The assailant uses
force, violence, or a threat of force or
violence against the victim or against
another person
- The defendant is a
government official or employee who coerces
the victim to submit or participate
Texas law does not
distinguish marital rape from general sexual
assault.
If the victim is a
child under the age of 17, the law presumes the
child cannot consent, so any penetration of the
child's anus, mouth, or female sexual organ, or
causing the anus, mouth, or sexual organ of a
child to contact that of another person, is
sexual assault. However, if the child is 14
years of age or older and the defendant is no
more than three years older than the victim,
then there is no crime.
Aggravated criminal
sexual assault is first degree felony criminal
sexual assault under aggravated circumstances.
If the defendant causes or threatens kidnapping
or serious bodily injury, threatens death or
tries to kill the victim, sexually assaults a
child under the age of 14, or uses a deadly
weapon, the defendant will be charged with
aggravated sexual assault.
Kidnapping is a felony
in Texas. It is defined as intentionally
abducting another person. Abducting is defined
further as restricting a person's movement and
interfering with his or her liberty by moving
the person from one place to another or
confining the person, and holding the person in
a secret place where no one is likely to find
him or her. Abducting usually involves deadly
force or the threat of deadly force.
Federal laws contain
harsh penalties for distributing controlled
substances, especially if firearms are even
remotely involved. For example, any person who
possesses with intent to distribute five grams
of crack cocaine is subject to a mandatory
sentence of five years without parole. If a gun
is available for use or is being carried during
a drug transaction--even if it is not used--a
mandatory five-year sentence must be imposed
consecutively to a conviction for the drug
offense. Thus, the person with five grams of
crack cocaine with intent to distribute would
receive a mandatory ten- year sentence without
parole if there was a gun on the premises. In
most circumstances, federal judges may not
depart from these mandatory sentences. Penalties
for controlled substance offenses become even
harsher as quantities of the contraband
increase.
Depending on the value
of the property involved, as well as the level
of violence, most property crimes fall into the
category of felony in Texas. The legal
definition of theft is
unlawfully taking the property of another person
with the intent to deprive the other person of
the property. This definition is much broader
than what most people think of as theft. It
includes embezzlement, keeping found property
without making a reasonable attempt to find its
rightful owner, obtaining the services of
another person or telecommunication services by
fraud, shoplifting, unauthorized access to
credit cards, and writing bad checks.
Robbery
is similar to theft; in fact, theft is a part of
robbery. A person commits robbery if, during a
theft, he or she intentionally, knowingly, or
recklessly causes bodily injury to another
person, threatens a person, or places another
person in fear of immediate injury or death.
Aggravated robbery, which is a felony of the
first degree, is a robbery in which a person is
seriously injured or in which the defendant uses
a deadly weapon. If the robbery causes fear of
immediate injury or death to a victim who is 65
years of age or older, or who has a mental,
physical, or developmental disability, the crime
also constitutes an aggravated robbery.
Burglary
is entering into a building, portion of a
building, or habitation with the intent to
commit theft or a felony there. Not only is it
burglary to enter a house unlawfully with the
intent to steal money or property, but it is
also burglary to enter with the intent to commit
a felony such as arson or murder.
Although there is no
fixed definition of white collar crime, a number
of nonviolent crimes frequently are grouped
together as white collar crimes. The term
"white collar crime" generally is used
to describe crimes that have cheating or
dishonesty as their common basis. These crimes
typically are committed by professionals or
entrepreneurs under cover of legitimate business
activity. Such crimes may be difficult to
prosecute because of their complexity. Often
they carry lesser penalties because they are not
associated with violence. However, defendants
convicted of white collar crimes may incur
enormous fines, be ordered to pay restitution,
or spend time in jail. Today, there is a trend
toward stricter punishment for white collar
crimes, as people recognize the financial damage
white collar criminals inflict on society.
As a practical matter,
it is impossible to describe every activity that
fits within the definition of white collar
crime, because white collar crime takes many
forms. Some criminal actions are prohibited by
specific laws narrowly drawn to outlaw a
particular activity. Other actions are not
covered by specific laws but instead are
prosecuted under one or more
"catch-all" laws criminalizing
dishonest behavior generally.
Federal law and Texas
law both prohibit bribery. The purpose of most
bribery statutes is to prevent people from
seeking preferential treatment from public
officials and to prevent public officers from
using their offices for personal gain.
Specifically, if a government official is
offered or seeks anything of value for himself
or herself in exchange for performing an
official act, a fraudulous action, or any action
in violation of his or her official duty, the
elements of bribery may be met.
Computer crime is an
area of the law in which the government appears
to be playing catch-up with the growth in new
technologies. Some variations of computer crime
are so new that there are no specific laws to
address them, and general laws in existence do
not seem adequate in proscribing the particular
illicit activities.
Generally, conduct
specifically outlawed by federal statute
includes an intentional or knowing access of a
computer to obtain confidential national
security information, financial information of a
financial institution or of a credit card
issuer, information of a federal department or
agency, or to commit fraud.
Texas law also
recognizes the computer crimes of breach of
computer security and harmful access. A person
commits breach of computer security by knowingly
accessing a computer without the consent of the
owner, or intentionally or knowingly giving a
password, identifying code, personal
identification number, debit card number, bank
account number, or other confidential
information about a computer security system to
another person without effective consent. If the
offender intended to obtain a benefit or to
defraud or harm another by the breach of
computer security, the crime is a state jail
felony if the benefit or loss is less than
$20,000, and a felony of the third degree if the
benefit or loss is $20,000 or more.
In addition, it is
unlawful under Texas law intentionally or
knowingly, and without authorization, to damage
or destroy a computer, cause a computer to
interrupt or impair a government or public
operation, use a computer to tamper with
official records, introduce false information
into a computer system to alter credit records,
cause a computer to alter or erase a negotiable
instrument, or introduce a computer virus into a
computer. Depending on the amount of loss,
harmful access to a computer is a crime ranging
from a felony of the second degree to a Class A
misdemeanor.
To embezzle means to
take another's money and property through abuse
of an official job or position of trust.
Embezzlement can take many forms. An accountant
might use sophisticated methods to falsify
records and skim profits. A bank teller might
walk home with an extra $20 from his or her
drawer. Both of these actions constitute
embezzlement.
The crime of making
false statements is not specific to white collar
criminals, but this crime is broad enough to
encompass activities that might not be unlawful
if not for associated false statements. To
convict someone of false statements requires
proof of a statement made willfully and
knowingly that contains a false material fact or
conceals a material fact.
Fraud is intentionally
lying in order to induce someone into relying
upon the lie to part with something of value.
Like embezzlement, fraud can be either complex
or simple. The federal government has three
general anti-fraud statutes for mail fraud, bank
fraud, and wire fraud. Mail fraud has two
elements: (1) a scheme devised or intending to
defraud or for obtaining property or money by
fraudulent means, and (2) using the mails in
furtherance of that fraudulent scheme. The
"scheme to defraud" element of mail
fraud is deliberately broad. It encompasses a
wide variety of criminal activity, including
credit card fraud, securities fraud, medical
drug fraud, and frauds based on political
malfeasance. Because the mail fraud statute uses
such broad language and because it is relatively
easy to prove, mail fraud is one of the most
common charges brought by federal prosecutors.
Charges of mail fraud frequently are made even
in cases in which more specific crimes have been
charged.
The federal wire fraud
statute is similar to the mail fraud statute,
but requires an interstate or foreign
transmittal of a communication by wire, radio,
or television. The federal bank fraud statute
criminalizes the conduct of any party who
"knowingly executes, or attempts to
execute, a scheme or artifice to defraud a
financial institution, by means of false or
fraudulent pretenses, representations, or
promises."
Obstruction of justice
is interference in one of the three branches of
government. Obstruction of justice can take many
forms, including assaulting a process server,
improperly influencing a juror, stealing or
altering a record of process, and obstructing a
criminal investigation by officers of a
financial institution. Picketing, parading, or
using sound amplification devices in front of a
courthouse, building or residence occupied by a
judge, juror, witness, or court officer may be
prosecuted as obstruction of justice.
Federal perjury laws
penalize anyone who willfully or knowingly makes
false statements under oath. The sworn
statements may be written or oral and need not
be made in court; a person may perjure himself
or herself in deposition or written testimony. A
related law against subornation of perjury makes
it illegal for anyone to procure another person
to commit perjury.
Often, a person charged
with other white collar crimes is accused of
committing a tax crime also. Failing to file a
tax return or filing a false tax return is a
crime, as is interfering with the administration
of the internal revenue laws. Specific laws
prohibit obstruction, extortion, or bribery with
regard to a tax official.
In some criminal
trials, the prosecutor proves all the elements
of a crime but the person accused is not
punished because he or she has a valid defense.
Self-defense
sometimes is used as a defense. The general rule
for self-defense is that a person may use any
amount of force except deadly force that he or
she reasonably believes is necessary to prevent
immediate unlawful harm to a person. Using
deadly force is permissible only when it
reasonably appears to be necessary to avoid
immediate death or serious injury to a person,
or to prevent the commission of a felony in the
actor's dwelling. If a person claims that he or
she acted in self-defense, the prosecutor must
prove beyond a reasonable doubt that
self-defense was not the reason for the crime.
By itself, intoxication
is not a defense to a crime. In rare cases,
intoxication works like a defense, if there is
proof that the person accused of the crime was
unable to form the necessary intent to commit a
crime. Someone who is intoxicated may not be
found guilty of a crime that requires he or she
acted intentionally, but the intoxicated person
may be guilty of another crime that does not
require intentional actions.
In the area of white
collar crime, the same defenses are available to
defendants as those available in crimes
generally. Some people accused of white collar
crimes also claim entrapment by
the government; they argue they were induced to
act, and would not have acted unlawfully
otherwise. Another common defense by businesses
is that a particular businessperson was acting
alone, without the authority of the company
behind him or her. Businesses further argue that
once it was discovered that an officer or
employee was acting unlawfully, the business
acted immediately to resolve the situation.
Sometimes a business avoids criminal liability
altogether if it shows that it took proper
action to correct a situation as soon as
managers were made aware of a problem.
Felonies and white
collar crimes carry the strictest punishments,
such as lengthy imprisonment, heavy fines, or
death. Federal sentencing guidelines contain a
method for calculating fines to be paid by
organizations that commit crimes. Businesses
that are found guilty of operating for a
primarily criminal purpose incur fines equal to
their total assets.
Texas law also allows
courts to forfeit property, dissolve a
corporation, cancel or suspend a license or
permit, remove a person from office, or impose a
citation or civil penalty. For example, a person
convicted of a crime involving controlled
substances must forfeit the controlled
substances as well as any property used to
further the crime.
Crime victims have
rights in the Texas criminal justice system.
Under the Texas Crime Victims' Rights law,
victims of sexual assault, kidnapping,
aggravated robbery, or any other crime causing
bodily injury, or the close relatives of someone
killed by a criminal act, have rights that
include the right to:
- Information about
services, including compensation
- Access to
counseling, assistance, and other victim
services
- Privacy and, to the
extent possible, confidentiality of identity
- Basic information
about the case, such as the case number and
assigned court
- Consideration by the
judge of a Victim Impact Statement, in which
the victim describes the impact of the crime
on the victim and his or her family
- Notification about
scheduled court hearings and plea
agreements, and to be present at public
court proceedings
- Notification about
the escape from imprisonment of the person
convicted of the crime
Victims of sexual
assault also have the right to payment for
medical examinations.
Some crime victims also
have a right to compensation for the crimes
committed against them. This means that under
the Texas Crime Victims' Compensation Act, a
victim of a violent crime may receive
compensation for certain expenses or losses,
such as medical expenses or loss of support if
the crime victim becomes unable to support
dependents. There are requirements that must be
met for a victim to get reimbursement. Victims
must report the crime within 72 hours of its
occurrence. They must cooperate in the
investigation and prosecution process, and
cannot be responsible in any way for the crime.
They must file a claim for compensation with the
Texas Attorney General's Office within one year
of the crime. The attorney general reviews and
investigates the application and may award a
cash payment, referral to a state agency for
vocational or rehabilitative services, or
provision of private counseling services.
Compensation usually is not awarded if the
victim received payment already from the
offender by way of restitution, or through
another source such as insurance proceeds. The
total amount a victim may receive is $25,000.
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