These days, if it is not a crime of violence perpetrated by a lunatic, it gets scant mention in the press. Yet, anyone who has been a victim of a thief or a con artist, knows that the loss of physical possessions can be equally devastating. I wont try to give specific examples of the kind of damage non-violent crimes can do. It's victims know that it can cost relationships, businesses, jobs, security and the future of families. Some time back, a wealthy client said it well when he lamented, "The amount of the loss is not important, if it's your last hundred dollars that is taken -- to you, it is rightly called a major crime!"
This page lays out an alternative approach to "getting made whole". That is, getting back that which was stolen from you in the first place. It sets forth a strategy that may not work -- but, in the final analysis, may be your best and only chance of winning!
Lets look at the Cast of Characters in this drama.
The Victim - This is you, or a friend, or loved one -- or your business, or the business of a friend or loved one.
You have had thousands stolen from you, yet you are made to feel that it is your fault because you are too greedy, or inattentive or just too dumb to be left to your own resources without a leach around your neck! I find this belief interesting because it can cause the victim embarrassment, and in fact causes many victims to hide the crime and never report the loss! Its makes me wonder who started the rumor. The victim is often seen as a dottering old fool who is just sitting in front of the phone waiting for a con man to call. Politicians score a lot of points by enacting legislation designed to protect the elderly. I do not object to such legislation except to the extent it tends to give a false image of the true victim. In my experience, victims have included, lawyers, judges, investment counselors, large corporations and even private investigators -- of all ages!
If you are a victim, get rid of the guilt! You were taken, not because you did anything bad. You were taken because the perpetrator was very good at what he or she does -- steal!
You have "A Right To Remain Silent" or "A Right To Get Your Money Back". Which "Right" do you want?
The Perpetrator - This is an individual who has made it his or her life's work taking the assets and property of others. In most cases the perpetrator knows how to manipulate the victim and the criminal justice system so as to stay out of jail!
The Police - In this group we have the local police and the FBI. They are charged with the investigation of complaints and with the apprehension of suspected criminals. However, it is not as simple as it appears.
There are scores of crimes committed or alleged to have been committed every day. Investigative resources are limited. It makes no sense to conduct an investigation if, it has been predetermined by the Prosecutor that the suspect will not be prosecuted.
That is exactly what happens every day. It is not unusual for the police to tell the victim of a White Collar Crime that it is not a crime and that he or she will have to bring a lawsuit in civil court to collect damages. What they do not tell the victim is that a lawsuit will cost a lot of money and that in most cases there will be no recovery of the money!
I happen to believe that in many cases, the police could take the case criminally if they wanted to. It is not for me to ascribe motives to their inaction.
It is common for the police to decline investigation when the victim has accepted a partial repayment from the White Collar criminal. Clearly it would be difficult or impossible to prosecute this as a criminal case because the crook could use the partial repayment as evidence that he did not intend to permanently deprive the victim of his money and that he intended to repay everything as soon as conditions permitted. It doesn't take a brilliant crook to figure out that this scenario is a "Get Out of Jail Free Card". We have seen many instances in which con artists routinely repay a part of what they have stolen in order to convert a possible criminal case into a civil case.
Once you know in your heart that you are a victim, it is very hard to refuse a partial repayment. However, if you do, you are probably helping the crook who ripped you off!
The Prosecutor - He is a key player in this scenario. He is obligated to bring criminal cases against those who break the law, but he also possesses tremendous discretion in the cases he brings and in the plea bargains he makes.
As I noted previously, the police have no reason to investigate a matter that will not be prosecuted.
I can't provide statistics, but I see as self evident, the fact that non-violent crimes are a lot less likely to be prosecuted than crimes of violence. Let us speculate as to why a prosecutor might be inclined to spend his time on crimes of violence than non-violent crimes.
Violent crimes get more publicity. When there is a public outcry for better enforcement it is always in the context of violent crime. In short -- the pressure is on.
It is easy for a prosecutor to rationalize a decision to side step a non-violent case. After all such a case can be tried civilly with a lesser burden of proof and a potential for the court ordering full compensation of the victim - and then some? Isn't that a better option for the victim? Bringing a civil action sounds good, but judgments obtained in such cases tend to be worthless. It is one thing to claim victory by holding a judgment against the thief and con artist who took your money. It is quite another to actually collect on such a judgment.
Most violent crimes are easier to present and win in court than non-violent crimes. A jury is a lot more likely to understand that "A" shot "B" in a dispute over a woman, than it is to understand the difference between a con game and a business that ran into bad luck.
Certainly, prosecutors are entitled to be apprehensive about the judgment and intelligence of juries. It wasn't too long ago that a guy in Los Angeles cut off two peoples heads -- and then was acquitted by "a jury of his peers"!
Even before the O.J. Simpson case I was convinced that the jury system as constituted, is a farce -- to be manipulated by lawyers and by the vivid imagination of the jury. During post trial interviews I have often heard admissions that the juror voted the way he or she did -- not because of evidence that was presented by either side, but because of shear speculation about what "probably happened". I will never forget a juror in a civil trial telling me that he voted for the plaintiff because when the plaintiff testified, the defendants ears got red. To that juror, red ears was proof of guilt and wrong doing.
Can there be any wonder why prosecutors would rather deal with a simple case? And can there be any wonder why a prosecutor faced with the possibility of a jury trial of a White Collar Crime, might be willing to cut a deal with the defense and accept a plea for a lesser offense than what was charged? Please keep this in mind. As you will see, it forms the basis of our strategy to recover the victim's loss.
Please don't let anything that I've said here leave the impression that the prosecutor is unmindful or insensitive to the plight of victim. On the contrary, most prosecutors I've come in contact with are altruistic people who get more satisfaction using their talents to serve the public interest than they would as a high priced defense counsel. When it comes to victims, they do what they can and realize that it is rarely enough.
The Defense Counsel - He has a small, but important role here. His job is to look at the evidence and try to negotiate the best deal he can for his dirt bag client. You say, "look at the evidence? What evidence?" Remember, the police are going to spend little time gathering evidence - because the prosecutor has already decided that in his list of priorities, your case is not worth bringing to trial! So where does the evidence come from?
The Private Investigator - His or her job is to gather the evidence that the police did not have time to gather. His task is to put together a criminal case that can be used by the prosecutor to bring a criminal complaint against the culprit! We call this a "Staple" case because if it is done properly, the police have only to staple together the paperwork and send the assembled pages to the prosecutor for action. The PIs job is to give the prosecutor a case he cannot afford to turn down -- a case that leaves him no choice but to file a felony complaint against the culprit and get a warrant for the culprit's arrest.
This is not an easy task and it is quite likely to be very expensive. (Although we recently put together a case employing a similar victim recovery strategy for only $500.) Since cost is a key factor in most cases, the victim must consult with a PI and get his assessment of the probative potential and the possible cost of the case at the outset. Remember, the object here is to recover what the thief has taken from you -- not to increase your losses by gathering, nice to know, but useless information. Only a private investigator can make that kind of assessment.
Connecting the Dots - Let's look at the assembled cast in action. We have:
The PI - He conducts an investigation and presents a viable case to the police.
The Police - They coordinate with the prosecutor, put the finishing touches on the case and arrest the culprit.
The Prosecutor - He files a felony complaint against the culprit.
The Defense Counsel - He reviews the evidence and advises the culprit to try to cop a plea to a misdemeanor in which he would get a sentence of 6 months instead of the 6 years he is facing.
The Prosecutor - For reasons stated above the prosecutor would prefer not to bring this case to trial. At the same time he has an obligation to the victim. He cannot in good conscience reduce the charge if the victim objects. He contacts the victim, tells the victim of the plea bargain under discussion and asks the victim if he interposes an objection to the deal.
The Victim - He tells the prosecutor that he is not vindictive and would not object to the proposed plea bargain if he is "made whole".
The Prosecutor - He relays the victims terms to the defense counsel who in turn relays the terms to the culprit. Essentially he is told, "Find a way to repay the victim now or face another 5-6 years behind bars!"
The Culprit - We finally have his attention and we have finally motivated him to act. He goes to his off-shore bank account or to his on-line brokerage account or to the acreage he owns in Wyoming in his cousin's name, or to his mother, father, sisters and brothers to raise the money. He begs, borrows and perhaps even steals to get what he needs to keep from rotting in jail!
The difference between this scenario and collecting on a civil judgment is the difference between night and day. If he fails to raise the necessary money in the context of this criminal complaint, don't waste your money on a lawsuit. You may get a judgment, but you wont see a dime!
If per chance he does not raise the money to meet the terms of the plea bargain, and the case goes to trial, if convicted, the judge may order him to make restitution. It sound good, but often is but a drop in the bucket - payable over many years.
A Final Word of Caution - The police and the prosecutor do not want to be used as collection agencies. Do not sucker into a side deal with the culprit in which you agree to drop charges in return for whole or partial restitution. If you do, you will have undercut the prosecutor, taken it out of the criminal context, and made it into a civil case. You will have given the culprit his "Get Out of Jail Free Card". Your position must always be that you want to see the culprit prosecuted to the full extent of the law and to that end, you will cooperate completely with the prosecutor. If there is any deal made, let the prosecutor make it!
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