Transcript White Collar Crime

Prosecutor 101
MICHAEL W. MELITO
OFFICE of the COLORADO ATTORNEY GENERAL
SPECIAL PROSECUTION UNIT
May 8, 2012
WHAT’S THE POINT?
• Why prosecute crime?
- Stop the conduct
- Punishment
- General deterrence
- Specific deterrence
- Enforce community expectations
- Educate public
- Protect Society
conduct
• Factors
– Need for further
investigation
– Nature of the Offender
– Nature of the Offense
– Motive
– Traditional Crimes
– Voluntary
Disclosure/Compliance
Criminal Charging
Decisions
– Cooperation with law
enforcement
– Preventative Measures
Taken Subsequent
Charging by Information/Complaint
• Filed Directly with the Court
– Statutory language
– No facts
• Results in acquisition of Defendant to appear
in court
– Arrest
– Summons
Pros/Cons of Information
• Pros
– Speed
– Flexibility
– Charging
decisions made
only by the
prosecutorial
team
• Cons
– Preliminary
hearings
– Increases motion
practice
Charging by Indictment
• Evidence presented to Grand Jury
• Indictment drafted for Grand Jury
• Deliberation to determine probable cause
• Upon finding of probable cause, filed with court
• Supervising court can order arrest and set bond
amount
Pros/Cons of Indictment
• Pros
– No Preliminary
Hearing
– True Bill (usually)
– Avoid allegations of
malicious prosecution
– Lessens Motion
Practice
– Evidentiary Rules
– Lack of Cross
Examination
– Grand Juries are juries
• Cons
– Requires presentation
of case
– Indictments must
contain facts relied
upon to indict
– Grand Juries are juries
The Criminal Process
You Will be Involved in:
• Investigations/Provide information for Search
Warrants or Subpoenas◄
• Charging Methods
-Complaint/Information/Grand Jury ◄
• Pre-trial Hearings/Evidentiary Hearings ◄
• Trial ◄
• Sentencing ◄
Ultimately the Prosecutor
Needs Jury Appeal
• Give the case “APPEAL” (no pun intended)
– Law & Order, JAG, Alley McBeal, A Few
Good Men
– Traffic Court is not exciting
– Exploding things are exciting
• Why should the jury care?
• Theme/Story/Motive
Goals of Prosecutors
• Fairness
• Achieve Compliance with the Law
• Deter wrongful behavior
• Teach Public
• Create or foster Initiative
• Punish
• Other
PREPARATION
• Contact the prosecutor to meet
• Review
ALL relevant writings
• Know your issues and your piece of the puzzle
• “I don’t know”… is OK…
• Bobby Knight: “5P’s”
• Prosecutors are actually nice people
• Counter your ANXIETY
─ Thorough preparation
─ Discuss weaknesses of your case
─ Show the hard work of your company/agency to
protect your company and/or the public
COMMON FINANCIAL CRIMES
1.
2.
3.
4.
5.
6.
7.
Theft, § 18-4-401
Forgery, § 18-5-102
Attempt to Influence a Public Servant, § 18-8-306
Identity Theft, § 18-5-902
Tax Crimes (Evasion/Failure to Pay) § 39-21-118
Money Laundering § 18-5-309
Colorado Organized Crime Control Act,
§ 18-17-101 et seq.
»
(People v. Glenn Demarest and People v. Annabelle’s Restoration, LLC)
Forgery
In the State of Colorado on or about the date and place charged,
with the intent to defraud
falsely made, completed, altered, or uttered a written instrument
which was or which purported to be, or which was calculated to become
or to represent if completed
deed, will, codicil, contract, assignment, commercial instrument,
promissory note, or other instrument which document did or may have
evidenced, created, transferred, terminated, or otherwise affected a legal
right, interest, obligation, or status
(People v. Ernie Colter, People v. Uto Essian)
Identity Theft
Money Laundering
1. In the State of Colorado on or about the date and place charged,
2. intentionally,
3. conducted a financial transaction involving property that was
represented to be the proceeds of a criminal offense, or involving property
that the defendant knew or believed to have been used to conduct or
facilitate a criminal offense to:
4. [promote the commission of a criminal offense] OR [conceal or
disguise the nature, location, source, ownership, or control of property the
defendant believed to be the proceeds of a criminal offense] OR [avoid a
transaction reporting requirement under federal law]
(New to me and CO. Generally, in the past = drug cases)
WHERE
WT
TO
F FIND
COCCA Cases?
Violation Of The Colorado Organized
Crime Control Act—Participation In An
Enterprise
• 1. in the State of Colorado, at or about the date
and placed charged,
• 2. while employed by, or associated with any
enterprise,
• 3. knowingly,
• 4. conducted or participated, directly or indirectly,
in such enterprise, through a pattern of
racketeering activity.
Criminal
Enterprise
A
Criminal Behavior
A
Who are the
targets?
“Bummer of a birthmark, Hal”
– Gary Larson
THE COURTROOM
COMING TO COURT
• Check in
• Sequestration
• Refresh your recollection
• Proper Conduct
• Bring a book/Ipod
DRESSING FOR COURT
• Dress as a professional
• If your agency/company regularly wears a
uniform, wear it
• Look like you have been to court before
• First impression key to your credibility
Discovery
• Civil Discovery
– Work Product
– Attorney/Client
– Any other privileged
material
• Criminal Discovery
– Rule 16
– Work Product
– …but “Brady Material”
Government has the burden of proof
─ Must prove guilt beyond a reasonable doubt
─ “. . . proof of such a convincing character
that, after consideration, you would be willing
to rely and act upon it without hesitation in
your important affairs. A defendant is never to
be convicted on mere suspicion or conjecture.”
POINTERS
• Discuss uncertainties
• Mistakes will be made, keep an open
mind, we will…
• Opinions vs. Fact… tell us which
• Be eager to do more investigation when
requested
• Let the Justice System do its job
─ Honesty
─ Track all Evidence
• It is not a game or a contest
Sentencing Options
•
•
•
•
•
Incarceration
Probation
Fines
Restitution
Debarment (A civil action for defendants
and corporate defendants)
• Other options
Michael W. Melito
Senior Assistant Attorney General
[email protected]
(303) 866 5310