What to do if you are a fraud victim who has been arrestedor is at risk of arrestIf you are too nervous and upset to read these pages carefully, please call a friend to read them with you!
1. Explanations & Definitions • 2. Arrest and Booking: what to expect • 3. Instructions
Explanations and Definitions: I didn't do anything. I didn't know. Why was I arrested? You have most likely been arrested for one of the following main reasons:
COUNTERFEIT CHECKS & MONEY ORDERS, STOLEN FUNDS WIRED INTO YOUR ACCOUNT:
Advice from friends and relatives: Be very, very careful about taking advice from well-meaning or drama-soaked friends and relatives. The closest most people every get to a criminal case is NYPD Blue, Perry Mason, and Law & Order. You do not want the rest of your life in the hands of someone who is quoting Sam Waterston in his role as Jack McCoy, the Prosecuting Attorney on Law & Order. We see this happen all the time. If you want solid, experience-based advice, ask your attorney. A person of interest: A person of interest is usually a veiled term for a suspect or target, but it can also be a reference to someone who was the witness to a crime. If you are described as a person of interest and you have even a distant involvement and knowledge of a crime, it's safe to assume you are being regarded as a suspect until determined otherwise in a court of law or by the Prosecution. Arraignment: An arraignment is not a trial. An arraignment is where you are read the charges and asked to enter a plea (guilty, not guilty). It is at arraignment that the first court date is usually scheduled. You will read more about arraignments in the Instructions. You should never, ever represent yourself at your arraignment. If you cannot afford an attorney or if you have not yet hired a private defense attorney, one will be appointed to you by the court or your arraignment will be continued until your attorney can be present. Checks in your pocket: When you are arrested for presenting a counterfeit draft and have other, undisclosed counterfeit drafts in your pocket or purse that are discovered when you are searched, in the eyes of the arresting officer this behavior is an indication of intent to defraud. Criminal Defense Attorneys: There are two types of criminal defense attorneys available to you: public and private. A defense attorney in the public sector is called a Public Defense Attorney or PDA and works in the Public Defender's Office. See Public Defense Attorneys You cannot obtain the services of a PDA prior to being arrested or if you can afford a private attorney. Whether you are eligible for a PDA or not varies from state to state and sometimes from county to county. Please contact your local Public Defender's Office to find out if you are eligible for public defense. Private sector attorneys are called Criminal Defense Attorneys and it is in your best interest not to just go hunting for one in the phone book. Try to get a recommendation from friend or family or church leader. Do not try to hire an attorney who is not a Criminal Defense Attorney! A Real Estate Attorney or Business Attorney has no experience in managing a criminal case. Most Criminal Defense Attorneys and Public Defense Attorneys have little or no experience with Nigerian and Eastern European scams. Fraud Aid does and we have tools your attorney can use to defend you. When we assist a defense attorney in this type of case, the case seldom goes to trial. Notice I said “seldom.” It can happen, so you must be prepared for every scenario. Please keep in mind that we DO NOT charge for our services unless your attorney needs ongoing trial strategy consultation, and it's very rare for such a situation to arise. Deferred sentencing: This means that instead of any conviction the person is sent directly into probation. The person must follow the conditions of probation ordered by the court for anywhere from 6 months to a year, and must report to a Probation Officer on a regular basis during the probation period. The appointments may be once a month, every 6 weeks, every other month, or a regular telephone call to the Probation Officer. Any violation can result in arrest and a reversal of the Prosecution’s position in its leniency. Discovery: Discovery is an exchange of information between your attorney and the Prosecuting Attorney. This is when each party shows the other what they have, and nothing is supposed to be withheld. Not that the withholding of information doesn't occur, it's just not supposed to. Your attorney's request for Discovery should be as broad as possible, encompassing every aspect of the Prosecution's notes and reports from law enforcement officers and witnesses and any other possible source. Your attorney is supposed to show the Prosecution everything you and Fraud Aid have provided him, and this is one of the times when a discussion of dismissal may arise. Expunging your arrest record: See Removing the arrest from your record. "Innocent until proven guilty": Legally you are innocent until proven guilty only in the courtroom. Until you appear in a court of law, law enforcement will consider you guilty until proven innocent. That is a fact of life and In most instances this attitude is necessary for law enforcement to carry out its duties effectively. Indictment: This is a very important document. It will arrive by surface mail so make sure the court has your correct mailing address. The indictment tells you the name of the court in which you are to appear and the list of charges being brought against you. You will find out what to do with the indictment in the Instructions. Interview vs. Interrogation: Technically, an interview occurs before an arrest and an interrogation takes place after an arrest, but things don't always work out that way. An interview is when law enforcement has not made a determination about your involvement in a crime. You might merely be considered a witness, or it may be that you are a suspect. A police interview is a fact-finding interaction and not adversarial or accusatory like an interrogation. Still, it is always best to have a witness present when speaking with law enforcement in reference to a crime in which you may be at risk of arrest. Be aware that statements made by you during an interview OR PRIOR TO AN INTERVIEW are just as likely to end up in court as a statement you make at any other time. When you are being regarded as a suspect in a crime, the police DO NOT enter into idle chit-chat with you. Each action and every sentence has the goal of getting you to admit to a crime. Please keep in mind that if there is the possibility that law enforcement considers you a suspect, they are NOT your friend and there is little or nothing you can do to make them your friend.
Please be aware that law enforcement may decide to arrest you at any time during an interview, or change the tone of the interview to that of an interrogation. It is very, very easy to incriminate yourself without meaning to do so and once you have, law enforcement's attitude toward you will change. If at all possible, have law enforcement come to your home to speak with you in the presence of a trustworthy friend or relative; take notes and try to have a tape recorder running in plain view. If the officer refuses to interview you with a tape recorder running, then stop right there and get an attorney. If it is not possible for law enforcement to come to you and you must go to the station, then follow the same rules as above or request that an attorney be present. Having an attorney present IS NOT an admission of guilt, it's just a good business practice. If you are arrested and read your rights, KEEP YOUR MOUTH SHUT. DO NOT WAIVE YOUR RIGHTS. ASK FOR AN ATTORNEY!! Waiving your rights does not demonstrate your innocence in any way, nor does it make you appear to be a friend of the police. Asking for an attorney is not an admission of guilt, it is your right! See Your Miranda Rights and How to Use Them. Your are free to leave a friendly interview or one that turns into an interrogation AT ANY TIME prior to being arrested and read your Miranda Rights. That is the law. Pattern of behavior: Some victims of Internet counterfeit draft schemes have received more than one check or money order and have attempted to cash or deposit them in more than one place. In the eyes of the arresting officer, this demonstrates a "pattern of [criminal] behavior" and when arrested, the activity at prior establishments is taken into account. Evidence of this nature is definitely not good, but there are ways this can be addressed and we will work with your attorney to the best of our ability to help him properly present the situation to the Prosecution. Pleas, accepting a plea: Be prepared to be asked to plead to a misdemeanor although we consider such a plea to be a last resort. The offer of a plea to a misdemeanor may occur when the Prosecution decides not to waste the Court’s time and proposes to your defense attorney that you take the offer of a lesser charge than whatever is stated on your indictment. However, please understand that the offer of a plea can also arise when the Prosecution doesn't really have a viable case but is under pressure to come away with something other than a dismissal. A misdemeanor is not a felony charge. While in some cases a misdemeanor can lead to no more than 1 year of jail time, in your case you would most likely be looking at a period of probation. Regardless, if you accept a plea you are admitting guilt to a crime; you need to weigh your options very carefully and make a serious determination as to whether you want to proceed with a jury trial. It is your Constitutional right to have a trial. Police interrogation: see Interview vs. Interrogation Police interview: see Interview vs. Interrogation Presenting a counterfeit check at the bank on which it was drawn: When you take a check to the bank it was drawn on for cashing, they are forced to call the police. This is standard policy at all banks when presented with a counterfeit, stolen, or forged check drawn on one of their customer accounts. Had you taken it to another bank you would still be in trouble, but it is unlikely that you would have been arrested. Priors: The term "priors" refers to past arrests/convictions, in other words, a record. Priors may or may not affect the arresting officer's attitude toward you; however, it will definitely affect that attitude if you have a record of drug-related activity or violence. Priors are seldom admissible in criminal court unless the arrest/conviction was for the same crime, and even then the record may be disallowed. When speaking with law enforcement and your attorney, IT IS ALWAYS BEST to admit to having a record and to avoid making any excuses for it. Probation vs. Parole: Parole occurs after a person has been incarcerated, usually for a felony. Parole means the person has served time for the crime and must report to a Parole Officer for whatever period of time has been ordered by the court. Probation is a bit different. Probation is frequently ordered by the court instead of jail time in a misdemeanor case, and it means that the person must report to a Probation Officer on the dates ordered by the court. Probation may last anywhere from 6 months to a year. During this time, the person must report to the Probation Officer, ON TIME on the appointed dates. Any violation of the conditions of the probation (including being late for or entirely missing an appointment) can, and often does, result in the person being put back in jail. Depending on the state and the conditions of the crime, violation of probation can also mean that the prior misdemeanor charge is changed to a felony charge. Public Defense Attorneys (PDA): You cannot obtain the services of a Public Defender nor have one assigned to you unless you have been arrested and cannot afford a private defense attorney. If you are assigned a Public Defense Attorney, the one who appears at your arraignment may not be the same one who handles your case. Be prepared for one or more changes in the assigned Public Defense Attorneys and be prepared for the possibility that your attorney will not answer your phone calls. Public Defense Attorneys are always overloaded with cases, and clients who are anxious and worried have a tendency to want to speak with their attorney about issues that carry no real importance at the time. If your PDA does not return your phone calls or does not meet with you as often as you feel is appropriate, that does not mean that he will not perform to the best of his ability on your behalf. If your PDA is not performing on your behalf at all, you can request another attorney. It's not an easy thing to do so please come back to us for advice and procedure. In some states, there is a nominal fee that must be paid to the Public Defender’s Office for the service of your attorney. This fee may be as little as $50 as much as $200. Removing the arrest from your record: If you plead to a misdemeanor, it may be very expensive to have the charge removed from your record, or the court may deny your request for removal. This does not mean you cannot get a job and do everything everyone else does, including become a member of the military or law enforcement. It does mean that every time an employer performs a background check the charge will show up. Even if the charges are dismissed, which is our goal, you will still have to pay the court to remove the arrest charge from your record, and you will have to pay a civil attorney (not your criminal defense attorney) to file the request. The average time before a request can be submitted is 6 months from the time the charges were dismissed. Trials: Court appearances are very often continued and continued. There are two reasons for this – one is that your attorney asks for more time, and one is that the Prosecution is not ready. This last one happens a lot. Under normal circumstances, there was no investigation of your case at the time of arrest and there will be no investigation now. This leaves the Prosecution with the responsibility of proving intent based on the accusations of the bank, check cashing store, or casino combined with evidence of your behavior. Your attorney will ask the Prosecution for Discovery and the Prosecution may drag its heels providing it. You may go to court only to find out the assigned Prosecuting Attorney hasn't even read the file yet. This can go on for months. This is why Fraud Aid does its best to provide your attorney with enough information and assistance that a trial never becomes necessary. The outcome of a trial can never be guaranteed; your life is in the hands of 12 people who, for the most part, don't want to be there and who are influenced by regional attitudes and personal bias. A court room is a very scary place no matter how innocent you are; but so long as you are well-prepared and have confidence in your attorney, you have a more than even chance of refuting the Prosecutions accusations of intent to defraud.
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