New York Federal Bank Fraud Lawyer
In recent years, the prosecution of financial crimes by the Department of Justice, especially in the Southern and Eastern Districts of New York, has dramatically increased – and with it the number of bank fraud cases. Whether it emanates from a complex financial transaction or a simple check kiting scheme, the charge of bank fraud, in violation of 18 U.S.C. §1344, is extremely serious – and a conviction carries with it a sentence of up to 30 years imprisonment and a maximum $1 million fine.
The federal bank fraud statute covers two different, though related types fraudulent activity. 18 U.S.C. §1344(1) generally punishes any individual who knowingly executes a scheme to defraud a financial institution. Alternatively, 18 U.S.C. §1344(2) is more limited, punishing any individual who knowingly executes a scheme to obtain money, credit or some other asset owned by, or under the control of a financial institution, by use of false pretenses. A New York federal bank fraud lawyers could help if you are being charged under this statute. Allow our skilled federal criminal attorneys to prepare a defense and guide you through the legal process.
Convictions Under the Federal Bank Fraud Statute
Specifically, to be convicted of 18 U.S.C. §1344(1), a prosecutor must prove beyond a reasonable doubt that the defendant knowingly executed or attempted to execute a scheme to defraud a financial institution insured or chartered by the federal government. Additionally, a prosecutor must establish that a defendant used some material misrepresentation or act of concealment to commit the alleged crime.
To be found guilty of § 1344(2), the prosecutor must prove beyond a reasonable doubt that the defendant knowingly executed or attempted to execute a plan to defraud a federal financial institution by using materially false representations or fraudulent pretenses to obtain money or property controlled by the government.
While the statutory language is seemingly broad, defenses to this charge exist. For example, not every misrepresentation made to a bank or financial institution is sufficient to warrant a conviction for this crime. Instead, the Second Circuit Court of Appeals held that a misrepresentation is material only if it is capable of influencing a bank’s actions. See United States v. Rigas, 490 F.3d 208, 231 (2d Cir. 2007); United States v. Rodriguez, 140 F.3d 163, 168 (2d Cir. 1998). Further, the ‘scheme to defraud element’ of both subsections requires more than just a simple act. For example, “depositing checks into a bank account where the depositor knows that he/she is not entitled to the funds,” is not a crime punishable by §1344. Rodriguez, 140 F.3d at 168.
Instead, this element requires that the prosecutor prove that the defendant engaged in a “pattern or course of conduct designed to deceive a … financial institution into releasing property ….” United States v. Stavroulakis, 952 F.2d 686, 964 (2d Cir. 1992) (emphasis supplied). Finally, not every financial institution qualifies for protection under this statute; instead, this term is defined by 18 U.S.C. § 20 and includes insured depository institutions of the Federal Deposit Insurance Act, credit unions with accounts insured by the National Credit Union Share Insurance Fund, federal home loan banks, small business investment companies, the Federal Reserve bank or a member bank of the Federal Reserve System, and mortgage lending businesses. An attorney is familiar with the federal statutes related to bank fraud and could help someone defend themselves against such charges.
What Are the Penalties Associated with Federal Bank Fraud?
The penalties attached to a federal bank fraud conviction are grave, and may result in lengthy incarceration in addition to steep fines. If convicted, the court can assess a fine up to $1,000,000. A court also may impose a maximum jail sentence of 30 years, either in lieu of or along with the fine amount. A court also may order a person convicted of bank fraud to pay restitution to the financial institution(s).
Moreover, an accused individual may face further penalties besides those named above if convicted, the reason for this being that the most of these charges are accompanied by other offenses. For example, one common charge that is often filed along with bank fraud is attempt and conspiracy to commit fraud, as defined under 18 U.S.C. §1349. A federal defense attorney in New York could assess a bank fraud case and determine what penalties a defendant may face.
What Factors Will the Court Consider in Reaching a Federal Bank Fraud Sentence?
While federal law outlines the penalty procedures for those accused of bank fraud, the judge may take numerous elements of the case into account before determining the final punishment. For instance, whether or not the accused has been convicted of a crime before and the details of the alleged offense can play a part in the court’s final decision. If the alleged fraud involves a considerable sum of money, the offender may face much higher penalties than if the funds in question were posed a smaller loss to the financial institution. A New York attorney should consider these mitigating and aggravating factors in a federal bank fraud case.
What Can a Defense Attorney Do to Help in a Federal Bank Fraud Case?
The most important action someone charged with federal bank fraud can take to help their case is to hire an experienced New York attorney to build their defense. A criminal defense attorney could provide legal guidance and help an individual accused of federal bank fraud better understands their rights and options under the law. An attorney can draw upon a vast array of resources and legal insight to build a thorough defense on behalf of the accused and pursue optimal results.
Develop a Defense Strategy
Winning a bank fraud case is only possible with a strong defense. However, there is not a one-size-fits-all approach that will work every time. A New York City bank fraud attorney can evaluate the facts before determining the best option for fighting back. Often, it takes time to carefully evaluate all of the evidence offered by the government before the right approach is obvious.
Negotiate a Plea Bargain
When the evidence is strong enough to likely lead to a conviction, the best course of action can be to negotiate a guilty plea. Whether or not this is the right approach depends on the circumstances, as well as the terms offered by the state. An attorney can not only negotiate for the best possible deal but also put an offer from the government into perspective. For example, they can shed light on whether the proposed plea is in line with what is normally offered or not.
Move to Exclude Evidence
Bank fraud prosecutions in NYC rely heavily on documents and other pieces of evidence. If the police cut corners or break the law when securing that evidence, it may be possible to have it excluded from trial. This is because anything obtained illegally by law enforcement cannot be used against a defendant under a legal theory known as “fruit of the poisonous tree.” An attorney can file a motion with the court to exclude these documents, which might be enough to upend the government’s case entirely.
Provide Counsel and Guidance
An attorney’s job is about more than filing motions and appearing in court. For most people, facing allegations of bank fraud is the most difficult thing they have experienced in their life. Often, people accused of serious crimes find their inner circle unable or unwilling to support them. An attorney can provide support and answer questions about this process.
Possible Defense Strategies in Bank Fraud Cases
While allegations of bank fraud are serious, there are ways to fight back and avoid a conviction. Finding the right strategic approach is crucial, as it can ultimately determine if a person will be acquitted at trial or potentially have their charges dismissed altogether. Some of the most commonly used defense strategies include the following:
Violation of Constitutional Rights
There are limits on the way law enforcement investigates a crime. For example, they are prohibited from searching a subject’s home or vehicle except within very limited circumstances. They must have a warrant issued by a judge or permission from the owner in most cases. When illegal searches occur, it is often possible to have any evidence obtained thrown out at trial on constitutional grounds.
Lack of Evidence
The most straightforward way to challenge the government’s case is by arguing they do not have enough evidence to prove guilt in a bank fraud case beyond a reasonable doubt. In this scenario, the defendant would not offer other theories or suspects. Instead, they would simply point to the case made by the prosecution and argue it is not enough to secure a conviction for bank fraud.
Lack of Intent
An act is only fraudulent if the person committing has the intent to take something of value through unscrupulous means. If the transaction that prosecutors believe is fraud occurred as the result of an honest mistake, it should not be considered an act of fraud.
Contact a New York Federal Bank Fraud Attorney Today
Hiring a skilled New York federal bank fraud attorney to defend you in any prosecution is crucial step to take following these allegations. The lawyers from the Law Offices of Jeffrey Lichtman has the experience and skill to handle any of these cases. To get started on your defense, call today.