Leading Illinois Criminal Law: Felonies & White Collar Crime Attorneys

Criminal Law: Felonies & White Collar Crime

Criminal Law: Felonies & White Collar Crime

Criminal Law: Felonies & White Collar Crime

This chapter outlines how the criminal justice system operates and describes the most serious criminal violations--felonies and white collar crime. It also includes information about the rights of persons accused of crimes and the rights of crime victims. Domestic abuse and protective orders are covered in the Family Law Chapter. Criminal procedure is covered in the Process of a Case: Civil & Criminal Chapter. Private causes of action that result from criminal conduct are covered in the Personal Injury Law Chapters. Finally, misdemeanors, the juvenile justice system, and driving-under-the-influence violations are covered in the Criminal Law: DUI & Misdemeanors Chapter.

Criminal Codes

Criminal law defines conduct that is prohibited by the government and the range of penalties that can be imposed for violating these prohibitions. Persons who violate criminal laws incur penalties ranging from fines to imprisonment or, in some states, execution. All crimes are defined by statutes. These statutes are collected and organized into books of rules known as criminal codes. In addition to the Illinois state criminal code, which applies only in Illinois, the federal government has a criminal code that regulates certain crimes nationwide. Most criminal activity violates either a state law or a federal law, not both; however, 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 beyond a reasonable doubt, the accused person is guilty of the crime. If the prosecutor cannot prove all the elements, the accused cannot be found guilty of the crime.

Attempt, Conspiracy, Aiding and Abetting

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 is not a crime; even preparation for a crime is not a substantial step. For example, if someone buys a gun with intent to kill another person, the act of buying 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 all can 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.

Offenses

Criminal codes penalize a variety of activities. Generally, an offense is any violation of the Illinois Criminal Code. The Criminal Code makes a major distinction between felonies and misdemeanors. A felony is a crime for which a person can be sentenced to one year or more in the penitentiary, or to death. Misdemeanors are crimes for which a person can be sentenced to less than one year in the penitentiary.

Felonies

The most violent crimes, such as murder and rape, as well as so-called white collar crimes, generally are felonies under the Illinois Criminal Code.

Crimes Causing Harm to Persons

Homicide and Suicide

Homicide is the unlawful killing of another human being. There are several types of homicide: murder, manslaughter, and reckless homicide. All forms of homicide are felonies.

Murder is the unlawful killing of another with intent to kill. Murder is divided into subcategories by degree of seriousness. First degree murder is killing someone with intent to kill or to cause great bodily harm, or knowing that one's actions will cause death or create a strong probability of death or great bodily harm. First degree murder also includes unlawful killing during the commission of a forcible felony. Second degree murder is similar to first degree murder, except at the time of the killing the offender has the unreasonable belief that the killing is justified, or the offender is acting under an intense and sudden passion resulting from being provoked.

Manslaughter and reckless homicide differ from murder because these crimes do not require proof of intent. Under Illinois law, involuntary manslaughter is unintentionally killing another person while engaged in an action that is likely to cause death or great bodily harm, if the action is done recklessly. However, if the cause of death is by a person recklessly driving a motor vehicle, the crime is called reckless homicide. Suicide is taking one's own life. Suicide and attempted suicide no longer are crimes in Illinois. However, it is a crime to induce another to commit suicide.

Assault and Battery

Under Illinois law, assault and battery are separate crimes. Assault is defined as an act that makes another person have reasonable apprehension of battery. Battery means intentionally or knowingly and without legal justification causing bodily harm to another person, or making an insulting or provoking physical contact with a person. Aggravated assault is an assault with a mask or a weapon, or an assault against a person the offender knows is a government employee, a person with a disability, a police officer, or a senior citizen. Aggravated battery is a battery committed under the same particular circumstances as aggravated assault. Other laws make battery of particular people, such as family members, criminal acts. These laws include domestic battery, battery or aggravated battery of an unborn child, aggravated battery of a child or institutionalized mentally retarded person, and aggravated battery of a senior citizen. A separate statute makes transmission of HIV a crime if the person knows he or she is infected with HIV and contaminates another person through sexual contact, donation of blood or other body fluids, or sells or shares drug paraphernalia.

Rape

Criminal sexual assault--also known as rape--is a felony that carries with it severe penalties. Criminal sexual assault is sexual penetration by force or threat of force, without consent of the victim, or against a minor. Aggravated criminal sexual assault is criminal sexual assault when one of the following occurs:

A dangerous weapon was used or displayed
The offender caused bodily harm
The rape occurred during the course of another felony
The victim was over 60 years of age
The victim had a physical disability
The victim was under nine years of age
The victim was institutionalized and severely mentally retarded

It is criminal sexual abuse, sometimes called statutory rape, for any one to have sexual penetration or sexual conduct with a victim under the age of 17. Criminal sexual abuse also can be sexual conduct other than sexual penetration in which force is used or the victim was unable to consent.

Kidnapping

Kidnapping is secretly and knowingly confining a person against his or her will, or using deceit, enticement, force, or threat of force to cause a person to go from one place to another with the intention of secretly and knowingly confining that person against his or her will. Confining a child 12 years old or younger without the consent of the child's parent also constitutes kidnapping. Aggravated kidnapping is kidnapping under additional circumstances or with additional actions, such as kidnapping while wearing a mask or with a dangerous weapon, or kidnapping for ransom. All forms of kidnapping are felonies.

Intimidation

The crime of intimidation is defined as intending to cause another person to act a certain way by threatening the person by phone, by mail, or in person. The threats can include threatening to

Hurt the person, another person, or property
Physically confine or restrain the person
Commit a crime or accuse the other person of committing a crime
Expose the person to hatred or ridicule
Cause a strike or boycott

In Illinois, intimidation is a felony.

Stalking

Stalking also is a felony. Stalking is the crime of knowingly following a person or putting the person under surveillance without justification, combined with threatening the person or causing the person to believe the stalker will harm him or her physically. The acts of following or watching must occur on at least two separate occasions to be stalking. A person commits aggravated stalking by actually causing physical harm. Another form of aggravated stalking is stalking that violates an order of protection. Orders of protection are described in detail in the Family Law Chapter.

Hate Crime

Illinois law prohibits hate crime, which is defined as a crime such as assault, battery, or theft committed against a person because of his or her ancestry, color, disability, gender, national origin, race, or sexual orientation. For example, a group of white youths who chased and beat two black youths, referring to them using racial insults, were guilty of a hate crime in Illinois.

Federal Drug and Gun Laws

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 he or she was carrying a gun. In most circumstances, federal judges cannot depart from these mandatory sentences. Penalties for controlled substance offenses become even harsher as quantities of the contraband increase.

Crimes Causing Harm to Property

Depending on the value of the property involved, as well as the level of violence, most property crimes are felonies in Illinois. The legal definition of theft is obtaining, exerting control over, and intending to deprive; or knowingly using, concealing, or abandoning so as to deprive a person of his or her property. This definition is much broader than what most people think of as theft. It can include writing bad checks, keeping found property without making a reasonable attempt to find its rightful owner, misusing trade secrets, unlawfully tapping into cable television or other television services, interfering with public utilities, or taking large sums of money by deception from persons over age 60. Unless the value of the property taken is $300 or less, the crime of theft is a felony. Additionally, theft always is a felony if a firearm is involved or if the accused has been convicted previously of theft, burglary, or robbery. Burglary, because it involves entering or remaining in a building or dwelling without authority and with the intent to commit theft or a felony there, generally is a felony. Not only is it burglary to enter a house unlawfully with the intent to steal money or property, but it also is burglary to enter with the intent to commit a felony such as arson or murder. Similarly, robbery almost always is felonious. Robbery is unlawfully taking personal property from another person or in the presence of the other person while using or threatening to use force against the person. Aggravated robbery is robbery committed with a dangerous weapon.

White Collar Crimes

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.

Bribery

Federal law and Illinois 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

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, the conduct specifically outlawed by federal statute includes:

Knowingly accessing a computer, without authorization or exceeding authorization, and thereby obtaining confidential national security information
Intentionally accessing a computer, without authorization or exceeding authorization, and thereby obtaining the financial information of a financial institution or of a credit card issuer
Intentionally accessing, without authorization, a computer of a federal department or agency used exclusively by that department or agency or affecting the government's use thereof
Knowingly, and with intent to defraud, accessing a federal interest computer, without authorization or exceeding authorization, to further a fraud or obtain anything of value
Intentionally accessing a federal interest computer, without authorization, to alter, damage, or destroy information and thereby causing a loss of $1,000 or, if medical information is affected, any amount
Knowingly, and with intent to defraud, trafficking in any password or similar information through which a computer is accessed, without authorization, if such computer affects interstate or foreign commerce or is used by or for the government

Illinois law also recognizes the crimes of computer tampering, aggravated computer tampering, and computer fraud. Computer tampering occurs when a person knowingly and without authorization:

Accesses a computer, program, or data, whether or not the person obtains data or services
Accesses a computer, program, or data, and damages or destroys the computer, program, or data
Inserts a "program" into a computer knowing that it contains information or commands that will damage or destroy that computer or other computers, or that will alter, delete, or remove a program or data

Aggravated computer tampering occurs when a person commits computer tampering and knowingly disrupts government or other public services or causes great bodily harm to a person.

A person commits computer fraud when he or she knowingly accesses, uses, damages, or destroys a computer, program, or data, or obtains money, property, or services of another in connection with a scheme to defraud. Computer crimes carry severe penalties, especially as the value of the property damaged or stolen increases.

Embezzlement

To embezzle means to take another's money or 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 dollars from his or her drawer. Both of these actions constitute embezzlement.

False Statements

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

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."

In addition, Illinois law prohibits fraud generally, as well as specific fraudulent acts. In Illinois, fraud includes such crimes as public aid wire fraud and deceptive collections practices. The crime of deceptive practices occurs when a person who has an intent to defraud uses a threat or deception for an unlawful purpose, such as to

Sign a document transferring property or creating a financial obligation
Use his or her position as an officer or manager to receive an investment
Issue a false check to pay taxes, buy property, or pay for services

Although generally the crime of deceptive practices is a misdemeanor, if the property at issue is worth $150 or several transactions within a 90-day period exceed $150, the crime becomes a felony. Check fraud, deception of financial institutions, false personation, forgery, and possessing another's identification card (such as a card for an automated teller machine) also are crimes under Illinois law.

Obstruction of Justice

Obstruction of justice is a category of offenses of 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, a building or residence occupied by a judge, juror, witness, or court officer, may be prosecuted as obstruction of justice.

Perjury

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.

Racketeer Influenced and Corrupt Organizations Act

The Racketeer Influenced and Corrupt Organizations Act (RICO) was established to fight the influence of organized crime on legitimate businesses. Under federal criminal law, defendants may be found guilty of violating RICO if they engage in "racketeering activity" under the auspices of an enterprise that affects interstate commerce, or if they are involved in the collection of an unlawful debt. There are 9 state and 35 federal offenses specifically listed as racketeering activity. The 9 listed state offenses are murder, kidnapping, gambling, robbery, arson, bribery, dealing in obscene materials, and dealing in narcotics or other dangerous drugs. While drug smuggling, murder, bribery, and extortion of "protection money" are examples of the activities to which RICO originally was applied, more recently it has been used to prosecute an increasing variety of criminal actions.

Securities Fraud and Insider Trading

A broad range of illegal behavior is prosecuted under securities fraud statutes. Criminal prosecutions require the prosecutor to show that the accused acted willfully; if the accused is found in violation, he or she is subject to criminal penalties, civil penalties, or both. The securities fraud statutes recognize that deception may take many forms and thus are worded broadly to prohibit "any device, scheme or artifice to defraud" in securities sales.

There are two general categories of securities fraud. The first involves the sale of securities to investors for far more than their actual value. The second involves the sale of legitimate securities for illegal purposes. An example of the first type of fraud is selling shares in dry oil wells. An example of the second type of fraud is sale of legitimate stock by a broker who conceals information about his or her own involvement with the brokerage company. These acts are prohibited by rules established by the Securities and Exchange Commission.

Insider trading prosecutions have been some of the most publicized white collar prosecutions of the 1980s and 1990s. Surprisingly, "insider trading" is not defined in any specific statute; it is a term used to describe insiders (such as officers of a corporation) taking unfair advantage of information to make money or avoid losing money in securities. Generally, insider trading means that an insider with material, non-public information engages in trading without disclosing that information to the public first. These crimes typically are prosecuted under the Securities and Exchange Act of 1934. However, prosecutors are not confined to using specific securities fraud statutes to prosecute securities fraud. General anti-fraud statutes may be used instead of, or in addition to, specific securities fraud laws. For example, parties engaged in securities fraud may be charged with violating mail and wire fraud statutes.

Tax Crimes

Often, people charged with other white collar crimes are 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.

Defenses and Punishment

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 even 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.

Illinois also has laws that allow the authorities to seize property connected with the commission of a crime. For example, any money or other profits connected with computer fraud may be seized by the government. Similarly, a person charged with violating laws connected with controlled substances must forfeit the substances as well as the raw materials used to make the drugs, vehicles and real property used to further the crime, and any money or other proceeds from the sale of the controlled substances.

Crime Victims' Rights

Victims of the most violent crimes have rights in the Illinois criminal justice system. Under the Bill of Rights for Victims and Witnesses of Violent Crime Act, a victim of violent crime generally has the right to be notified of the status of the investigation, whether an indictment has been brought, the time and place of any hearings, and when the defendant is released from custody. The Illinois Victims Rights Constitutional Amendment also gives all victims the right to be treated with fairness, the right to privacy, the right to make a statement at sentencing, and the right to reasonable protection from the accused during the criminal justice proceedings.

Some crime victims also have a right to compensation for the crimes committed against them. This means that a crime victim may receive compensation for certain expenses or losses, such as medical expenses or loss of support if the crime victims becomes unable to support dependents. There are requirements that must be met for a victim to get reimbursement, and a victim must file an application for consideration with the Illinois Court of Claims for compensation. The maximum amount a victim can receive from the Court of Claims is $25,000.

Under some Illinois laws, the victim may receive compensation from the person who committed the crime. This is called restitution. For example, a person whose vehicle is stolen may be able to receive compensation for the vehicle. In this case, the state arranges to collect the money from the criminal and sends a check to the victim when all the restitution has been made.

If the court does not order restitution, or if a prosecutor does not press charges, the victim still has the option to seek compensation directly by suing the offender in civil court. This option is discussed more fully in the Process of a Case: Civil & Criminal Chapter.

Resources

Business Crime: Criminal Liability of the Business Community, Stanley S. Arkin, et al, Matthew Bender, New York, NY, 1994. Illinois Crime Victims Reparation Board, 100 Randolph Street West, Chicago, IL 60601, phone: (312) 814-2581.

National Coalition Against Sexual Assault, P.O. Box 21378, Washington, D.C. 20009, phone: (202) 483-7165.

National Organization for Victim Assistance, 1757 Park Road NW, Washington, D.C. 20010, phone: (202) 232-6682. To obtain the free pamphlet, Your Rights if Arrested, contact the Illinois State Bar Association, Illinois Bar Center, Springfield, IL 62701-1779, phone: (217) 525-1760. Crime victims who wish to apply for compensation should apply to the Illinois Court of Claims, Capitol Building Room 213, Springfield, IL 62756, phone: (217) 782-7101.

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