Punishing the white collar criminal

“The judge opened his file and retrieved the case’s sentencing memos, plea agreement and lengthy pre-sentence report, which he had read over the past few days and which spelled out the case’s particulars: Borgono had pleaded guilty to conspiring to defraud the federal government by falsifying records that allowed her boss, the president of a Miami-based export company, to steal more than $10 million from the Export-Import Bank of the United States”

–  Judge who had ‘no passion for punishment’ retires after 31 years, The Washington Post, June 1, 2012

The Washington Post Article referenced above provides a ‘behind the scenes’ look at the challenges facing the judiciary when sentencing white collar criminals. Should society punish white collar criminals to the maximum extent allowable under the law, or does it make more sense to show compassion? Does tough sentencing for white collar criminals discourage “would be” fraudsters? How important is it to rehabilitate the offender?

Consider the vast difference between the punishment that the federal prosecutors argued for and the request made by Borgano’s defense attorney:

“Because so much money had been stolen, federal prosecutors argued in court papers that Urbina should sentence the former office manager to 18 months in federal prison. Her attorney countered that Borgono deserved just a year of home detention and two years of probation because the Peruvian immigrant, who became a U.S. citizen in 2007, had not reaped a dime in the scheme’s proceeds beyond her $500 weekly salary. She had cooperated extensively with authorities and had helped them build their case against her boss, a man sentenced by Urbina to nearly four years in prison. She also had the support of her community, the attorney said. The judge’s folder was filled with heartfelt letters from relatives, friends and even her priest.”

More on who won that fight in a minute…

In addition to the investigations that I personally conduct, each week I review over fifty cases involving fraud and intellectual property theft to determine which examples to include in our Global Knowledge Center. The differences in the sentences handed out to white collar criminals are truly startlingly, and in some cases alarming. Even within the same jurisdiction, the sentences handed down vary significantly. And let’s not forget that the Internal Revenue Service may also take an interest in the case. Or not… I have yet to understand the criteria that the IRS applies when determining which cases involving fraud and unreported income are worthwhile pursuing. That’s a discussion for another day…

I understand better than most that each case is unique and numerous factors must be taken in to account before a sentence can be handed down. But let’s consider the variation in sentencing from the “would be” fraudsters perspective. Does the threat of prison time factor in to their decision making process? Should it? What are the odds that they will be caught in the first place? Why consider the worst case scenario when committing fraud is so incredibly easy to do?

The case highlighted in the Washington Post article is somewhat different as Norma Borgano did not personally benefit from the fraud – her boss Guillermo O. Mondino did and he received 46 months in prison for his troubles.

So let’s compare Mondino’s sentence to the 66 months that Patricia K. Smith,the perpetrator of a $10.2 million dollar fraud received. That’s a difference of 20 months, or nearly two years. I fully understand that each case is different, but is Smith’s crime anymore heinous than Mondino’s? In fact, Mondino’s fraud involved a far higher potential loss of $24 million. Did Mondino’s attorneys do a better job defending their client? Who knows, but the difference is significant – especially if you are the unlucky individual serving the “extra” 20 months!

As for Norma’s fate, she received a year of home detention, four years of probation and $5,000 in restitution payments. Is that an appropriate sentence? Let’s be honest, who are we to judge?

Need a writer that understands fraud? When you hire me to write an article, blog post, newsletter or white paper you get an accomplished writer that is also an expert in fraud.

paul@mccormackwrites.com

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Organized crime has an “Easy Button” – White Collar Crime

“The Federal Bureau of Investigation on Friday estimated there are some 1.4 million gang members in the United States and they are turning to white-collar crimes as more lucrative enterprises.”

msnbc.com, FBI: Gangs turning to white-collar crimes

Drug trafficking and prostitution certainly pay the bills, but gang members see the potential to make big money with white-collar crime so says the FBI in its 2011 National Gang Threat Assessment. I’ve written about organized crime before as it relates to the banking sector. In fact, very early on in my fraud career, I lead an investigation of identify theft involving an Asian gang based on the West Coast. To be honest, I was very impressed with the overall scheme. The gang routinely overcame the countermeasures that we deployed and over the course of 6 months, made many, many millions. As far as I know, they remain at large.

From my experience, the biggest threat posed by organized crime as it relates to white-collar crime is their efficiency. Either by threats of violence, a sense of loyalty, or sheer determination, organized crime is often far more efficient than the fraud departments they face. Unless the organized crime entity is targeted by law enforcement, fraud departments rarely see their “enemy”. In jungle warfare, fighting a faceless enemy that can strike with impunity exerts a tremendous psychological toll on soldiers. Clearly, we are not talking about life and death, but fraud investigators can become quite demoralized when tasked with defeating an attack by organized crime. In reality, you never really defeat organized crime, you temporarily slow down the frequency and severity of their attacks.

Whether you work for a company with less than 10 employees, or a multinational with 10,000 employees, there is much to learn from organized crime and their approach to fraud. Sure, the gangs have their fair share of politics and distractions in the form of law enforcement investigations, but when it comes to making money, organized crime makes every effort – violent or otherwise – to protect their cash flow.

Using violence to prevent fraud is not an option for businesses. However, can your company say that it has an organized response in place to prevent fraud? As we know, fraud has many forms. Your company doesn’t have to be fighting organized crime to apply lessons learned from their approach. Ask yourself if fraud prevention and investigation is a high priority in your organization? Does the company dedicate the resources needed to combat fraud – both employee and third-party? (Hint: what appears to be employee  related fraud, may actually be a “plant” by organized crime). If the fraud department recommends a change in policy or procedure, or an investment in technology to combat fraud, who listens?

The fact that the FBI believes that organized crime is focusing their efforts on white-collar crime may actually be a blessing in disguise. In order to improve their performance, a sports team often has to play against a superior opponent. In case you hadn’t already guessed, organized crime is the superior opponent. Will your company learn from the experience, or be subject to an embarrassing defeat that serves no purpose… well, almost no purpose. The gang will enjoy spending your company’s cash. And, they’ll probably be back for more…

Need a writer that understands fraud? When you hire me to write an article, blog post, newsletter or white paper you get an accomplished writer that is also an expert in fraud.

paul@mccormackwrites.com


“There’s Gold in Them Thar Hills”

A Hooter

The lawsuit involving Hooters and Twin Peaks has already triggered a wave of clever, and not so clever, headlines, but it is really no laughing matter. (With this post, I suppose that I just added a headline to the list. You be the judge as to which category it falls into.)

The dispute involves Joe Hummel, the former  EVP of operations at Hooters. Hooters alleges that as he was leaving the company, Hummel stole over 500 pages of sensitive business information and trade secrets.

He is now employed with La Cima restaurants. Unfortunately for Hooters, La Cima is in the process of launching the Twin Peaks restaurant chain (any guesses what the new chain will “feature”?). Before joining La Cima, Hummel allegedly downloaded Hooter’s marketing plans, contract agreements, recruiting tools, and sales figures – some or all of which are likely trade secrets – and then emailed them to himself using his personal email account. If this is true, how could it have been prevented? I regularly help companies prevent IP theft, and I can tell you that there is no easy fix. Instead, it requires a multi-pronged approach using the right mix of people, processes, and technology.

What is a trade secret anyway? The short answer is whatever you say it is! The more detailed answer is that a trade secret must be secret (not widely known), be of value because it is not widely known, and treated as a secret at all times. In this case, it is not entirely clear if all of the information that Hummel allegedly took would meet the definition, but at face value, certain elements would appear to fit the bill. I would strongly suspect that Hooter’s marketing plans were not widely available within the company or the industry as a whole. Would the marketing plan be of value because it is not widely available? Ultimately, that is for the courts to decide.

Asking the courts to pursue employees that steal trade secrets is certainly within your company’s rights, but I would liken it to putting toothpaste back in the tube once squeezed. It is time consuming and potentially very messy, and the end result may not justify the effort.

Does your company have any trade secrets? (Hint: the vast majority do.) What have you done to protect them? Could an outgoing executive steal your company’s trade secrets? Would you even know?

If the answer to any of the questions above causes concern or leaves you wondering about how well protected your trade secrets may be, we can help. Just don’t wait until a theft occurs. By that time, the toothpaste is out of the tube…

Hooters is not alone in dealing with this type of situation. Given the glamorous nature of their business, they are unlucky enough to attract media attention when things go wrong. That said, could your company be next?

Need a writer that understands fraud? When you hire me to write an article, blog post, newsletter, or white paper, you get an accomplished writer that is also an expert in fraud.

paul@mccormackwrites.com

“I’m as mad as hell, and I’m not going to take this anymore!”

Regular readers of this blog will know that many of the fraud losses I discuss here are largely avoidable. Well, my business partner and I have decided to do something about it. Today, we launched Consult-OnLine, an online platform that provides fraud and intellectual property theft prevention services for small- & medium-sized companies.

Why now, and why online?

Quite simply, the number of fraud cases involving small-and medium-sized companies is staggering. SMEs need help, and they need it fast. They are often overlooked by traditional consulting firms as too small to purchase services – or worse, the companies suffer in silence and do their best to muddle through without the assistance of a fraud expert. The most common reason for not engaging a fraud consultant is cost. Small companies can’t afford to pay the hourly rates and expenses that traditional firms charge. They are also genuinely concerned that once a fraud consultant enters their office, they will have a hard time convincing them to leave.

Believe it or not, other firms have offered professional services online before. One in particular was phenomenally successful, but for a number of reasons they shut the site down. We strongly believe that professional services can be delivered online. In fact, we built an innovative platform to do exactly that.

In addition, over the last three months, we have developed a proprietary database that contains analysis of fraud cases from the news. There are so many lessons to be learned from fraud at other companies. We thought it made sense to build a database that companies could access and use to learn how to avoid a similar fraud at their company. I have over 16 years of fraud experience, yet even I am amazed at the number of six- and seven-figure fraud cases that we have gathered from around the world. We are absolutely convinced that the database will “open eyes” and help companies dramatically reduce their fraud risk.

So, I am mad that small- and medium-sized companies coffers are being raided by fraudsters with impunity. AND my firm is prepared to do something about it.

Need a writer that understands fraud? When you hire me to write an article, blog post, newsletter, or white paper, you get an accomplished writer that is also an expert in fraud.

paul@mccormackwrites.com