The most common white-collar offenses run the gamut of nonviolent crimes from antitrust violations to money laundering. The FBI estimates that white-collar crime costs the United States more than $300 billion annually. These estimates do not take into account cases where aggressive and ambitious prosecutors snare an unwary person, who eventually pleads guilty in the face of intimidation and threats. Then there is the plethora of regulations where ignorant noncompliance is, nevertheless, a crime.
A common legal defense, especially when the government uses informants, is entrapment. Here’s the Black’s Law Dictionary definition of entrapment:
“The act of officers or agents of the government in inducing a person to commit a crime not contemplated by (that person) for the purpose of instituting a prosecution…”
As a criminal defense strategy, entrapment is known as an “affirmative defense.” This means that the defendant has a unique burden of proving that:
- government agents approached the defendant and introduced the idea;
- the defendant was not willing to commit the crime; and,
- law enforcement agents engaged in improper or coercive conduct.
Then the defendant has to show either:
- that the actions of law enforcement would have induced any law-abiding person to commit a crime; or,
- the defendant did not have any predisposition to commit the crime, regardless of what law enforcement agents did.
Is ignorance of the law a defense?
With well over 4,500 federal laws and more than 300,000 federal regulations that could be the basis for a criminal prosecution, no American can know about every statute. The maxim that “ignorance of the law is no excuse” passes the “reasonable man” test when someone does something to accomplish a criminal purpose—i.e., the act was known to be morally wrong or for a criminal purpose. But what of noncompliance and so-called regulatory crimes?
For regulatory crimes, liability is absolute.
Author and legal pundit Paul Rosenzweig observes:
“For regulatory crimes [today], there is in effect a standard of near-absolute liability … The tragedy is that while ignorance [of the law] may not be an excuse, it is the reality for American citizens … Americans are therefore asked to undertake an impossible task—knowing what conduct is allowed and what is prohibited—and then punished when they fail. That is simply unjust.”
So, when it comes to white-collar criminal defense, the government operates from a position of enormous advantage. Federal and state prosecutors have unlimited resources and a voluminous and complex array of statutes with arbitrary definitions of what is “criminal” behavior.
Only the best and most competent defense can protect you against intimidating prosecutors and police tactics that can verge on entrapment. Making voluntary statements to prosecutors in the hope of avoiding investigation can come back to haunt you if you are later charged.
If you have been charged with a white-collar crime, you need to get ahead of the process of aggressive government enforcement. This is an area of law enforcement that is politically charged and can attract public attention and the popular assumption that white-collar criminals must be guilty because of all the trouble it takes to bring charges.