David Benowitz on Fraud and Innocent Individuals

David Benowitz, a fraud lawyer in DC, answers questions about fraud cases involving individuals rather than large companies.

We’ve all heard of the big fraud cases like Enron. But what are some scenarios where an individual can get wrapped on a smaller scale?

Answer: For example, if someone is working in an area of financial responsibility for a smaller company — at a nonprofit or at a school — and they get charged with or they’re being investigated for embezzlement of funds from the company. That’s a very common scenario. The amount of money that you’re dealing with is usually in a much smaller scale. Maybe you’re talking about the $20,000-$500,000 range, as opposed to Enron-type numbers.

With government employees, you also will commonly see alleged fraud or manipulation of, for example, voucher or travel reimbursement. Also called per diem reimbursement. I’ve represented many government employees in this type of investigation.

Are there any scenarios in which an innocent person can find him or herself wrapped up in a white collar or federal crime?

Answer: It’s very easy, unfortunately. Because it’s just like any other criminal investigation. The accuracy of an investigation depends on the quality of the investigation. So, if you have an investigation that’s not performed well, it can drag in people who shouldn’t be dragged in.

The other thing that can happen very easily in a white collar situation is that paper can be misinterpreted. For example, someone can look at an e-mail and it might look like someone is saying something. It might interpreted one way if an investigator is looking at it through the lens of, “Wow, fraud is being committed.” They may look at an e-mail that may have a perfectly innocent connotation and take a meaning from it that no one ever intended. That can get someone dragged into something that they shouldn’t be dragged into.

You also have situations in the white collar context where an activity that is alleged — no one disputes the facts of what happened — but the legality or illegality of that activity is in a gray area.

So, it could easily be someone who may have engaged in activity that might constitute, for example, a conflict of interest. It might be a conflict of interest, but that doesn’t necessarily make it illegal. That’s where you may get into a situation where someone gets dragged into a criminal investigation when, really, what you’re talking about should be examined in a civil context. It should not be prosecuted as a crime.