Classic Cases | Misdemeanor defense for felony, reverse defense - from the crime of "covering up and concealing the proceeds of crime" to the crime of "opening a casino" accomplice
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
Sponsoring lawyer: Liang Wei, co-founder of Beijing Jingshi (Zhuhai) Law Firm
1. Basic facts of the case
34-year-old Fujian Zhang is a young and beautiful real estate agent. In June 2022, in order to obtain illegal benefits, Zhang provided an IB bank card in his name to a gambling website through his cousin and helped transfer gambling funds. After a few transfers, Zhang realized that the amount was too large and prone to legal risks, so he stopped the transfer. However, after Zhang's cousin was arrested, he confessed to his niece Zhang having jointly assisted in the transfer of money, and the public security organs filed a case for investigation against Zhang for the crime of covering up and concealing criminal proceeds, and after auditing, from June 27 to July 1, 2022, Zhang Moumou transferred a total of 960,000 yuan in gambling funds.
The mother of the second child may be sentenced to three to seven years in prison
When Zhang's family approached Liang, Zhang had already been approved by the procuratorate for arrest. Lawyer Liang then came to the detention center to meet Zhang, Zhang said that when he used his bank card to transfer money for upstream cybercrime, he did not know very well what kind of crime the other party was engaged in, Zhang participated in the transfer a total of only two or three times, but the amount reached more than 900,000 yuan, Zhang also inquired about some conviction and sentencing in the detention center, and knew that the amount of his crime determined that the sentencing would be very heavy, thinking that there were two young children at home who could not be cared for by their mothers for a long time, Zhang was so desperate that he committed suicide, but fortunately he was rescued in time by discipline. As a mother of two children, Mr. Liang was very able to understand Zhang's anxious mood at this time, and comforted her that he would definitely try his best to help her go home early.
However, after obtaining cases of the crime of covering up and concealing criminal proceeds from local courts, the same category and the same period, Mr. Liang found that almost all cases in the region were sentenced to substantive sentences for this crime, that is, it was impossible for the local court to apply a suspended sentence based on Zhang's objective situation.
On the basis of article 312 of the Criminal Law of the People's Republic of China, whoever commits the crime of covering up or concealing criminal proceeds or the proceeds thereof, and clearly knowingly harbors, transfers, purchases, sells them on behalf of others, or otherwise conceals or conceals them, is sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine; where the circumstances are serious, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.
Article 3 of the "Supreme People's Court Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving the Concealment or Concealment of Criminal Proceeds or Proceeds of Criminal Gains" Covering up or concealing criminal proceeds and the proceeds thereof, in any of the following circumstances, shall be found to be "serious circumstances" as provided for in the first paragraph of Criminal Law article 312: the total value of covering up or concealing criminal proceeds and the proceeds thereof is 100,000 RMB or more; Therefore, in the absence of statutory mitigating or mitigating sentencing circumstances such as voluntary surrender or meritorious service, the statutory sentence will be between 5-7 years based on the amount of the crime, which is excessively heavy.
Three attempts to change the "crime of aiding trust" were in vain
Article 287-2 of the Criminal Law of the People's Republic of China stipulates that the crime of aiding information network criminal activities refers to providing technical support such as internet access, server hosting, network storage, and communication transmission for others to commit crimes, or providing assistance such as for advertising and promotion, payment and settlement, and the circumstances are serious, and the circumstances are serious, shall be sentenced to up to three years imprisonment or short-term detention and/or a fine.
After repeated research and judgment and argumentation of the facts and evidence of the case, lawyer Liang found that the circumstances of this case basically meet the constitutive elements of the crime of "aiding and abetting", because there are many similarities between the crime of covering up and concealing criminal proceeds and the crime of aiding information network criminal activities in terms of constitutive elements, and if the crime of aiding and believing can be attributed to the crime, the sentence can be reduced to less than three years.
However, after communicating with the judicial case-handling personnel, it was learned that there is a unified practice in local case-handling practice for the characterization of such cases, that is, the provision of face brushing or transfer of money is generally found to be the crime of concealment; Those who provide bank cards and do not participate in face scanning or transferring money are generally found to be the crime of aiding and abetting trust. As a result, hopes for a change in the crime of aiding and abetting were largely dashed. At the same time, the facts of the case are basically clear, the evidence is indeed sufficient, and the arrest has already been approved.
Reckless contrarian thinking, misdemeanors are defended as felonies, but the sentence is reduced
At this time, Mr. Liang thought of another defense strategy, which was to change to an accomplice to the felony crime of "opening a casino" and strive for the accomplice to be recognized. According to Article 303 of the Criminal Law: Whoever opens a casino shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or controlled release, and shall also be fined; where the circumstances are serious, a sentence of between 5 and 10 years imprisonment and a concurrent fine is to be given.
The "Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Cases of Online Gambling Crimes" stipulates that in any of the following circumstances, the use of the Internet, mobile communication terminals, and so forth to transmit gambling videos and data, or organize gambling activities, is an act of "opening a casino" as provided for in paragraph 2 of Criminal Law article 303: (1) establishing a gambling website and accepting bets; (2) Establishing a gambling website and providing it to others to organize gambling; (3) Acting as an agent for a gambling website and accepting bets; (4) Participating in the profit sharing of gambling websites. In any of the following circumstances, carrying out the conduct provided for in the preceding paragraph shall be found to be 'serious circumstances' as provided for in paragraph 2 of Criminal Law article 303 :(2) The cumulative amount of gambling funds reaches 300,000 RMB or more;
Accordingly, if the court finds that Zhang has committed the crime of opening a casino, his statutory sentence is not less than five years but not more than ten years in prison. Therefore, it is clear that the penalty for the crime of opening a casino is much heavier than for the crime of covering up and concealing the proceeds of crime.
However, article 27 of the Criminal Law of the People's Republic of China provides that an accessory is an accomplice who plays a secondary or auxiliary role in a joint crime. For accomplices, punishment shall be mitigated, commuted, or waived. According to the Supreme People's Court and Supreme People's Procuratorate's latest implementation of the "Sentencing Guiding Opinions on Common Crimes" (5) in 2021, accomplices shall be given a lenient punishment and reduced by 20%-50% of the base sentence after comprehensive consideration of circumstances such as their status and role in the joint crime; where the crime is relatively minor, the base sentence may be reduced by 50% or more, or punishment may be waived in accordance with law.
Combined with the above-mentioned "Sentencing Guiding Opinions on Common Crimes": (7) For confessional circumstances, comprehensively consider circumstances such as the stage and degree of truthful confession of the crime, the severity of the crime, and expressions of remorse, to determine the scope of leniency. 1. Where they truthfully confess their own crimes, the base sentence may be reduced by up to 20%; 2. Where they truthfully confess the same type of heavier crime that the judicial organs have not yet learned, the base sentence may be reduced by 10%-30%; 3. Where the base sentence may be reduced by 30%-50% as a result of truthfully confessing one's own crimes to avoid especially serious consequences. (8) Where people voluntarily admit guilt at court, the base sentence may be reduced by up to 10% based on circumstances such as the nature of the crime, the severity of the crime, the degree of the admission of guilt, and expressions of remorse. Except where it is found to be voluntary surrender or confession in accordance with law. (10) Where stolen goods are returned or restitution, circumstances such as the nature of the crime, the extent to which the act of returning stolen goods or restitution can make up for the harmful results, the amount of the returned stolen goods or restitution, and the degree of initiative, shall be comprehensively considered, and the base sentence may be reduced by up to 30%. Robbery and other crimes that seriously endanger public security shall be strictly controlled. (13) Where the defendant behaves well during the period of detention, the base sentence may be reduced by up to 10%. (14) Where the defendant admits guilt and accepts punishment, the base sentence may be reduced by up to 30% based on comprehensive consideration of circumstances such as the nature of the crime, the severity of the crime, the stage, degree, value, and expressions of remorse for admitting guilt and accepting punishment; Where there are circumstances such as voluntary surrender, major confessions, return of stolen goods and restitution, compensation and understanding, or criminal settlement, the base sentence may be reduced by up to 60%, and where the crime is relatively minor, the base sentence may be reduced by 60% or more, or punishment may be waived in accordance with law. Sentencing circumstances such as admitting guilt and accepting punishment and voluntary surrender, confession, voluntary admission of guilt in court, return of stolen goods and restitution, compensation and understanding, criminal reconciliation, and good performance during detention are not to be repeated.
Combined with the above-mentioned sentencing norms, if Zhang's crime can be successfully changed to the crime of opening a casino and found to be an accomplice, Zhang's final sentence may be reduced to less than two years imprisonment. So Mr. Liang informed Mr. Zhang and his family of this bold idea, and after obtaining their approval and written consent, Mr. Liang began to sort out the facts, evidence, laws and regulations of the case.
There is a difference between the crime of "concealment" and the crime of "opening a casino".
In fact, there are many overlapping commonalities between the crime of being an accomplice to the crime of opening an online casino and the crime of covering up and concealing criminal proceeds. If there is no prior conspiracy with the person who opened the casino, and the funds are clearly transferred by the person who opened the casino, and the money is transferred by way of transfer, and the concealment is more in line with the constitutive elements of the crime of covering up and concealing the criminal proceeds; If there is a division of labor with the person who opened the casino in advance, and his main task is to transfer stolen money for the casino, or to participate in the actual operation of the casino and the disposal of stolen goods through means such as withdrawing funds, it is more in line with the constitutive elements of the crime of opening a casino, and judging from the degree of participation and criminal status of Zhang's accomplice, it is very likely to be found to be an accessory to the crime of opening a casino.
Therefore, the same act of transferring money for the casino will have certain differences in conviction due to subjective cognition, specific participation and specific circumstances of the case, and there will be large differences in the final sentence.
Lu sought a breakthrough and successfully defended himself
After carefully reviewing the evidence materials of Zhang's case, lawyer Liang found that Zhang had made several records of "subjective knowledge of the joint crime with the opening of an online gambling gang", and Zhang was vague and revised the content of the records several times. The first transcript stated that "he did not know the purpose of his cousin's request to provide him with a bank card and transfer money", the second transcript stated that "he probably guessed that the purpose of his cousin's transfer was online gambling", and the third transcript stated that "he clearly knew that he was cooperating with the overseas online casino gang to transfer funds and played a helping role". When the contents of multiple records are inconsistent, which record will be adopted by the judicial organ to prove the facts determines Zhang's crime.
The amount of the upstream crime in this online gambling case is tens of millions, and according to the comparative consideration of the amount of the crime, the amount involved in Zhang's case is relatively small, and from the perspective of statutory, discretionary mitigating and mitigating sentencing circumstances such as being an accomplice and admitting guilt and accepting punishment, it is found that he is an accomplice in the joint crime of opening a casino, and the final sentence is more beneficial to the defendant.
Obviously, this is a defense of a risky one, but it's also worth trying. Zhang recognized the authenticity of the content of the third transcript at the trial, and the content of the transcript was corroborated and related to other evidence, and was finally accepted by the collegial panel of the court, and ruled that Zhang constituted the crime of opening a casino, found an accomplice, and sentenced him to 11 months imprisonment and a fine of 4,000 yuan. When the verdict was announced, Zhang had just completed his detention and was released.
Many people have a misconception about criminal defense lawyers, believing that criminal defense lawyers can play a very small role in criminal cases. Lawyer Liang believes that in most criminal cases, only a lawyer who is professional enough and serious enough can always find a defense strategy that is beneficial to the client in many complicated aspects such as case facts and evidence, applicable law, etc., whether it is the crime, the length of the sentence, the property involved in the case or the fine, etc., of course, this is also based on the client's sufficient trust in the lawyer and the defense lawyer's sufficient professionalism and responsibility.
About the author
Lawyer Liang Wei
Co-founder and Director of Criminal Legal Affairs Department of Beijing Jingshi (Zhuhai) Law Firm; Former public prosecutor of the procuratorate, focusing on criminal cases for 12 years, independently handling more than 500 difficult and complex criminal cases. He has extensive experience in criminal defense, criminal prosecution, civil and criminal interdisciplinary legal affairs, corporate criminal compliance business, and blockchain and virtual currency related legal affairs. He has represented a number of influential, difficult and complex criminal cases, and has successfully obtained not guilty defense results for more than 20 clients, most of whom can obtain effective defense results such as not guilty, minor crimes or suspended sentences.
Success Stories:
● Defended a $3.3 billion illegal mining case and successfully obtained a suspended sentence.
● Defended the case of opening a casino involving a million dollars, and was successfully found to be an accomplice and sentenced to 11 months in prison.
● In order to purchase Moutai stolen by others, he was suspected of covering up and concealing criminal proceeds.
● Obtained a not-guilty defense in a case of embezzlement.
● Defended the case of misappropriation of funds, extortion, and embezzlement of a certain amount of money remanded for retrial, and successfully reduced the sentence of 5 and a half years.
● Obtained a suspended sentence for a coal group's 2.1 billion illegal mining case.
● Assist enterprises in formulating and completing corporate compliance rectification plans to achieve the desired results of criminal compliance and non-prosecution.
● Assisted in a number of cases of refusal to enforce judgments and adjudicated crimes, and obtained non-prosecution or suspended sentences.
● Successfully handled the non-prosecution result of a case of illegal occupation of agricultural land.
● In the case of 12 years in prison for extortion, the procuratorate withdrew the prosecution and made a decision not to prosecute satisfactory.
●Successfully defended the case of intentional destruction of property, illegal occupation of agricultural land, opening a casino, and usurious refinancing, helping entrepreneurs get rid of their crimes and return their enterprises to normal operations.
● In the defense of the second-instance case of the crime of opening a casino, a new defense idea was put forward and adopted by the court of second instance, and the sentence was changed from three years and six months to three years in prison.
● Defended a well-known asset appraisal company in the case of providing false supporting documents, and finally obtained a satisfactory result of a suspended sentence.