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Common Defenses to a Bank Fraud Charge

Bank Fraud By Harvey Binnall PLLC - 2018/09/14 at 11:08pm

If you have been charged with bank fraud, then you could be exposed to significant criminal penalties of up to a million dollars in fines and 30 years imprisonment — this can cause many defendants to feel incredibly nervous about the impending litigation.  Should the prosecution gather sufficient evidence to convict you of bank fraud, your entire life will be irrevocably change.

Government authorities can be rather heavy-handed in their investigation and prosecution of suspected bank fraud, however, in part because the public has become more suspicious of white-collar crimes in the wake of the 2008 subprime loan crisis and the apparent inability of the government to prosecute those involved.  As such, it’s quite possible that prosecutors have unfairly characterized your actions as bank fraud, when in fact, you are not liable for such crimes.

Fortunately, there are a number of defenses that can be asserted in a bank fraud case to avoid liability altogether (though the applicability of each defense will depend on the circumstances surrounding the conduct at issue).

Consider the following.

Lack of Intent

Bank fraud — like other fraud crimes — requires an intent to defraud.  In the bank fraud context, this is defined as knowing execution of a scheme to defraud.  It’s important to note that courts have interpreted this intent requirement somewhat broadly.  Prosecutors need not show that you evinced an intent to defraud the financial institution at-issue.  They need only show that you harbored an intent to defraud an individual or entity whose money was held in an account at the financial institution.

You can avoid liability entirely by introducing evidence that clearly demonstrate that you had no intent to defraud — whether defrauding an individual or entity who has an account with the bank, or the bank itself.  For example, if you obtain a business loan from a local bank after mistakenly including false information on your loan proposal, then you could avoid liability by showing that your actions were truly mistaken (as opposed to intentional).  You might introduce evidence of your willingness to communicate the mistake to the relevant authorities and correct the issue.

Acted in Good Faith

Similar to a lack of intent, if you can show that you — in good faith — believed that your actions were legal and were for a legitimate business purpose, then you can avoid criminal liability for bank fraud.  This can be somewhat difficult, as you’ll have to establish the contours and expectations of your knowledge (which may be influenced by circumstances such as your professional training, age, experience, etc.).

Fraudulent Misrepresentations Were Immaterial

In the event that your bank fraud charge is based on a fraudulent misrepresentation, you can avoid liability by asserting that the misrepresentative information at-issue was not actually material to the bank.  Material information (in this particular context) is that which is sufficiently relevant and significant to potentially have an influence on the decisions made by the bank.  For example, if you misrepresent your address information on your business loan proposal, that is likely to be considered immaterial for the purposes of a bank fraud charge.

Duress

Duress operates as an absolute defense to a bank fraud charge.  If you intentionally committed bank fraud, but did so only because you were subjected to the threat of physical violence, or some other coercive pressure, then you cannot be held criminally liable.  Normal pressures are not sufficient to constitute duress — typically, duress requires the imposition of unlawful pressure from a third-party individual or entity.  For example, if someone threatens to harm your family unless you commit bank fraud on their behalf, that would qualify as a situation of duress.

Request an Appointment With an Experienced Alexandria Bank Fraud Attorney

Harvey & Binnall, PLLC is a boutique criminal defense firm located in Alexandria, VA, serving clients throughout the region.  Our attorneys have decades of experience advocating on behalf of white-collar criminal defendants in state and federal court, and are well-equipped to handle the complications typical of such litigation.

We know the ins-and-outs of white collar criminal prosecution and the tactics typically employed by prosecutors to force the defendant into a vulnerable bargaining position before trial even begins — unlike many competing firms, we are aggressive litigators who are willing and able to successfully dispute the charges at trial.  This has earned us a reputation as tenacious white-collar criminal advocates, which gives us substantial leverage during negotiations with prosecutors.

If you’d like to learn more about how we can help, call (703) 888-1943 or request an appointment online to speak with an experienced Alexandria bank fraud attorney at Harvey & Binnall, PLLC.