Electronic Theft Crime Defenses

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Electronic Theft Crime Defenses

Electronic Theft Crime Defenses

Electronic Theft Crime Defenses

Electronic theft is not only on the rise, as monetary systems move to the internet, but also are easier for the police to investigate and for prosecutors to prosecute.  Those factors make electronic theft crimes and convictions increase year over year.  It also makes convictions rise year over year.  This page discusses Electronic Theft Crime Defenses.

This FAQ page discusses how electronic theft crimes are investigated and what is allowed in prosecuting and defending cases.  The most common situation is where a credit card payment system is diverted or siphoned from, to route payments (or sometimes false payments) to an employee or another third party.

Question: In investigating an electronic theft crime, how likely are the police to try to access an online payments system?

Answer: The police wouldn’t be able to access any online payments account unless they seek and are granted a search warrant, are granted access by permission of the account owner, or ask the prosecutor to issue a subpoena duces tecum for access to that account.  How likely that depends on the quality of the specific evidence that points towards criminal activity.  A judge wouldn’t issue a warrant unless there is “specific articulable evidence that a crime occurred, or is occurring.” I don’t have all the evidence in this case to review, but it sounds as though there might be enough for a warrant.  With a subpoena, they only have to show it’s more likely than not (51/49%) that the subpoena will produce relevant evidence.  Given the problems with the account you described, and the lower standard for a subpoena, that might be more successful, but the police will usually, as a matter of procedure, try the warrant first.

Q: How likely are police to succeed in getting records in an electronic theft case?

A: Again, that depends on the specific facts and evidence the police have before using specific tools to access this account.  The police wouldn’t be able to access the online payments account unless they seek and are granted a search warrant, are granted access by permission of the account owner, or ask the prosecutor to issue a subpoena duces tecum for access to that account.  How likely depends on the quality of the specific evidence that points towards criminal activity.  A judge wouldn’t issue a warrant unless there is “specific articulable evidence that a crime occurred, or is occurring.” I don’t have all the evidence in this case to review, but it sounds as though there might be enough for a warrant.  With a subpoena, they only have to show it’s more likely than not (51/49%) that the subpoena will produce relevant evidence.  Given the problems with the account you described, and the lower standard for a subpoena, that might be more successful, but the police will usually, as a matter of procedure, try the warrant first. If the account owner consents to provide information or agrees to give access, no legal warrant or subpoena is needed, as there is consent.


Q: Can anything be done by the defense to stop this?

A:  With a warrant, there is a criminal motion to quash a warrant from being granted, or being used.  That can be served on the police and prosecution and used to stop an illegal warrant.  With the subpoena, there is likely third-party information being revealed.  Third parties would have a privacy interest in protecting private information, such as their credit card information, order history, name, address, and date of birth (if in the system).  Objecting to the subpoena as a third party based upon privacy rights and obtaining an injunction preventing release of the information via court order (from a civil court or an appeals level court) has been very successful in stopping or blocking this type of information from being released until the court system can analyze the data and see what, if anything, can be released protecting the privacy of others, which can take six months to a year. If the delay extends the investigation beyond the statute of limitations for the crime, this tactic alone may cause the case to be dismissed, or never filed in the first place, and would make it impossible to bring charges in the future.


Q: If an electronic order confirmation email was deleted after sending, how easily can these be recovered?

A: This is really a technical question, that depends on the email system used, the backup and storage methods, and the company’s policy regarding deleting, or backing up and saving old information.  From a legal point of view, I have no idea.  There is no legal requirement to save emails in most industries.

Q: How should he respond if being accused of being involved in, or a defendant in, an electronic theft crime?

A: This question is one permutation of the age-old question about what to say if accused of a crime.  Almost 100% of attorneys and most judges will tell you it’s best not to say anything.  You have 5th Amendment rights and 14th amendment rights for a reason, and that is to protect your right to remain silent.

Q: What should a defendant say if questioned?

A: That depends on the exact question asked.  Most attorneys would prefer that the accused not admit to a crime, and state that they have talked to an attorney, and the attorney has advised he or she not to make any statements regarding this at all.

Lying about it and stating they don’t know would not likely be a crime, like obstructing an investigation, or obstructing justice, but would certainly cause job consequences. 

Q: Wouldn’t it be better to attempt to fabricate some kind of explanation — That the sale was legitimate, but that the receipt was lost?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That statement cannot be used against him, as it’s fundamental constitutional right.


Q: That ticket scalping sites are somehow involved if the case involves false ticket sales?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all.


Q: That any charges made electronically were a mistake?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That statement cannot be used against him, as it’s fundamental constitutional right.


Q: Or, if the police do decide to pursue charges, should the alleged defendant maintain silence, and hope that either the case is dropped by the prosecutor, or that there’s some kind of semi-viable legal defense available?

A: Yes.  Most attorneys would prefer that he not admit to a crime, and state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That’s his rights under the Fifth Amendment. Talking about it or admitting to charges, or even admitting to side issues that help prove the case is never helpful


Q: Just how likely, roughly, are the police to pursue this?

A:  This question is impossible to answer by anyone but the specific agency investigating this case.  That would depend on their resources, how overloaded they might be by other cases, what their budget is to investigate this case, how much evidence they have (including what you don’t know about yet) and their motivation for the case.  The police have a duty to investigate and report to the prosecutor’s office via reports and other evidence any time they suspect a crime has occurred.  But in the real world, they may not have enough evidence or time to handle every case.

Q: And beyond that, how likely is the prosecutor to take up the case?
A: A prosecutor has a duty to file cases where there is a good faith belief that there is a crime and it can be proven beyond a reasonable doubt (note this is a higher standard than the police investigation standard above).  I do not know the answer to this without knowing the agency involved and the evidence involved. I suspect that there may be some denial here, in that you hope that charges will never be filed.  That usually doesn’t work out well, but it’s understandable psychologically.  Most cases presented are filed with the court.  

Q: How much room is there for a good Electronic Theft Crime Defenses, getting the charges dropped on that basis?

A: That’s difficult to tell from the limited evidence here.  There may be factual defenses – facts that don’t prove a connection to the alleged defendant, or there may be legal defenses, like a lack of intent here.  But there’s not enough to guarantee a particular defense or dismissal among the variety of Electronic Theft Crime Defenses.


Q: As far as actual sentencing is concerned… are cases like these sometimes are eligible for a pre-trial diversion — Pretrial diversion is where full restitution is paid, and the defendant has to take a class, the record is cleared, and that this becomes more difficult the more money is involved.
A: Yes, especially in certain counties, like Los Angeles County, the courts rely on pretrial diversion quite a bit for first-time offenders with no criminal record.  What this is describing is usually not eligible for more serious theft or embezzlement crimes, but probation instead of prison time is a possibility for first-time offenders.  

Q: If Pretrial Diversion (PTD) isn’t possible, what charges are likely, what sentences are likely?

Q: The sentences depend very much on what charges are filed, proven, or pled to. California charges depend on the amount of issue (or the total amount taken).  Anything under $950 is a misdemeanor and has the misdemeanor sentencing range, and anything above $950 is a felony, with the felony sentencing range. What crimes are covered under electronic theft could certainly qualify as California Penal Code 487, Grand Theft, or if below $950, Petty Theft.  It could also definitely qualify as Embezzlement, which is petty theft or grand theft while under the contract or employ of an employer and in a position of trust, which would also be a misdemeanor if under $950, or a felony if above $950. This could also be prosecuted as a misdemeanor or felony fraud.  Prosecutors would usually in normal situations file both, which gives them leverage to run both sentences concurrently, or consecutively, or dismiss one as part of a plea bargain.

If referred to the Federal Attorney General, which electronic crimes often are, that would be the federal crime of electronic wire fraud, or 18 U.S. Code 1343.

As a misdemeanor, the sentencing for California crimes would be from zero jail time to one year in jail, three to five years probation, restitution, and certain additional punishment (education, community service, work programs, booking, DNA, or counseling), depending on the judge and the policies for the courthouse you are in.

As a felony, the judge would only have the choice of sentencing you to one of three state prison options – sixteen months in state prison, two years in state prison, or three years in state prison.  Before sentencing, the judge will allow the defense to bring a motion to show good cause for first-time offenders for mitigation for felony supervised formal probation in certain circumstances.

As a federal crime, section 1343 allows a judge to review sentencing briefs from both sides and proclaim a sentence up to one million dollars in fines, plus actual restitution, and up to 20 years in Federal prison.

Any of the above is a crime of moral turpitude, even if a misdemeanor.  Theft, fraud, or embezzlement crimes are a hard no for many employers, and crimes of moral turpitude make you ineligible for state or federal licenses and cause immigration or travel consequences.

Q: What difference could a good defense attorney make?

A: A defense attorney is the only one working on the defense side to challenge the evidence, block certain evidence from being used, arguing for you, presenting evidence on your side and presenting mitigation evidence on your behalf.  The difference could be a more harsh sentence and a light sentence, or between a dismissal and a conviction. A defense attorney is important enough that you will be given one by the court even if you can’t afford one, but having a plan in place now and being prepared and having a firm dedicated to your case and fighting every aspect of it and minimizing the impact on you can make a dramatic difference in your matter.


Q: Overall — How dangerous is this situation, legally speaking?

Q: Theft crimes are not “dangerous”, per se, and not “dangerous” in terms of personal harm.  But this situation is serious.  I think you’re doing the right thing by taking this seriously and gathering as much information as you can to have a plan or strategy in place and reaching out to professionals to get opinions and potentially having someone handle this situation. As you can see from the punishment above, this is serious enough to be concerned and want to fight this and minimize the impact on you as much as you can. 

Q: Is there any possibility of resolving it internally, before the police get seriously involved?

A: If the police have already been contacted and have begun looking into this (which is what I gather from your explicit statements to that effect), then they would have a legal duty to investigate this if they believe there are facts that support a conclusion that a crime has occurred.  (See above).  If I am incorrect in this, and the police have not been contacted, then an internal settlement could be negotiated (with or without an attorney), which may stop the police from being involved, or a challenge to the warrant or subpoena (see answer above) may prevent evidence from being obtained.  Many police detectives or officers will also allow an attorney to argue the evidence collected towards convincing the police not to file charges and send to the DA’s office if there is a weak case.


Q: How likely are the police to gather sufficient evidence for a viable case?

A:  This is another question that any answer would only be pure speculation. If the police have the manpower, time, budget, and evidence to gather sufficient evidence, then they could.  Not knowing any of that, I can only guess.  People often underestimate how easy it is to get and analyze electronic data, and many larger police departments have specific task forces or sub-departments just for electronic evidence retrieval and analysis. Sufficient evidence depends on whether or not they can prove the elements of the crime.  For embezzlement, for example, the criminal statute and the court instructions require proof of the following elements, each beyond a reasonable doubt: (a) An owner entrusted someone to access to property; (b) The owner trusted the defendant; (c) The defendant fraudulently acted to steal or defraud; and (d) there was an intention to steal or defraud.  If they can’t provide sufficient evidence as to each of those elements, then you would win the case at motion or at trial.


Q: Can anything be done about this?

A:  Yes.  As mentioned above, you can be proactive about challenging the evidence, or blocking the efforts to obtain evidence, or create a settlement.  You can settle the case with the employer or convince the investigating officer or detective that there is insufficient evidence.  You can also challenge the filing deputy at the prosecutor’s office that there is not a case to be filed, you can challenge the case and the charges at the arraignment in court, challenge the elements of the crime, provide defenses or defense evidence, challenge the case at trial, or provide mitigation evidence and ask for leniency in the punishment, or a reduction of the charges, or argue for the minimums allowed by law at sentencing.


Q: How likely is this 1) to be investigated, 2) to lead to arrest, and then 3) to prosecution?

A: There are unknowns, but it’s rare for a clear crime to not be investigated.  If there is enough evidence, it will lead to an arrest, and lead to prosecution. The state’s own statistics  show that over 90% of cases presented to the prosecutor are filed.


Q: What kind of sentencing is likely for Electronic Theft Crime Defenses?

A:  See above regarding sentencing ranges.  For felonies, where the court has three choices in sentencing, the guidelines for judges state that the judge must choose the mid-term (2 years), and then decide if the mitigation evidence presented by the defense outweighs the aggravating evidence presented by the prosecution.  As a first time offender, the court usually would go towards the low term or towards probation and lower jail time, rather than towards the maximum sentencing range.


Q: What kind of Electronic Theft Crime Defenses are viable?

A:  Many long books have been written on criminal defenses, which also apply to this case.  Defenses to theft include consent, lack of intent, lack of fraud, stealing, or misappropriation, factual or legal mistake, a challenge to the crimes charged by pointing out legal defenses, or that the elements of the crime cannot be proven, or mental capacity, or legal justification.

Contact our Orange County criminal defense attorney if you have questions.

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