What is Embezzlement Law?
Embezzlement law provides the specific elements that the state must prove in order to convict someone accused of misappropriating money or property that was placed in their care. It also determines the legal defenses that a defendant may raise, and the punishments that can be imposed after a conviction. Most embezzlement prosecutions take place at the state level, and the penal codes in every state contain a statute defining the crime. Whether embezzlement constitutes a misdemeanor or felony typically depends on the value of the property taken by the defendant.
While the crime of embezzlement differs slightly in each jurisdiction, it generally requires the defendant to convert property that has been entrusted to the defendant by the victim. Examples include a stockbroker who skims money from client accounts, or a contractor who takes lumber belonging to a property owner. In this context, the term "convert" means to deal with the property in a way that is inconsistent with the arrangement between the defendant and the owner. Thus, a car dealer who makes personal use of a vehicle that the dealer is supposed to be selling on consignment may be guilty of embezzlement.
Unique Aspects of the Crime
In order to prepare a defense to criminal charges, the defendant must understand the exact nature of the offense of which he or she has been accused. This is true of any crime, but it is especially important when dealing with embezzlement, because it closely resembles several other property crimes. Even if the defendant acted improperly, it may be possible to defend the charges by showing that the conduct does not qualify as embezzlement, and that the defendant has been charged with the wrong crime.
For example, embezzlement is very similar to larceny, in that both crimes involve the taking of property belonging to another. The only difference is that larceny can be committed by anyone, while embezzlement requires a defendant who has been entrusted with the property. This means that the defendant's position within a company will often determine which crime applies. Store clerks are not entrusted with the cash in the register, so taking it will constitute larceny. If the same cash is taken by the store manager, however, the crime should be charged as embezzlement.
The crime of fraud provides another example. Fraud occurs when the defendant gains ownership of the victim's property through some type of misrepresentation. In other words, the defendant uses a scheme to obtain title to the property. By contrast, a defendant guilty of embezzlement does not actually own the property once it is taken. The defendant takes possession only - title stays with the true owner. Therefore, if a mortgage lender tricks a client into signing over the deed to the client's home, the mortgage lender has committed fraud, not embezzlement.
The Issue of Fraudulent Intent
Another element of embezzlement that can sometimes prevent a conviction involves the requirement of fraudulent intent. To be found guilty, the defendant must have purposefully tried to defraud the owner of the property. If the defendant took the items with the plan of returning them before anyone noticed, then the element of intent is missing. Of course, the jury will be allowed to infer fraudulent intent from the defendant's conduct. A mere assertion at trial that the defendant "was going to put it back" is unlikely to succeed.
Similarly, people who take property based on a mistaken (but genuine) belief that they have a right to the property cannot be convicted of embezzlement. The element of fraudulent intent requires that the defendant acted with the objective of wrongfully depriving the true owner of his or her property. This cannot be said of defendants who believe they are the rightful owner. Again, the jury will consider the defendant's conduct objectively. Fraudulent intent will probably be inferred if the property was taken in secret. Conversely, if the property was taken in open view of the owner, this suggests fraudulent intent is lacking.
Restitution and Punishment
Those who are convicted of embezzlement can expect to be ordered to make restitution. Restitution means the money or other property that was taken must be returned. Oftentimes the defendant no longer has the property at the time of sentencing, and will need to pay the debt in installments. Judges will usually impose a term of probation that will not terminate until the last installment has been paid. In addition to restitution, the judge may order further penalties such as incarceration, fines, community service, and more.
An Experienced Attorney Can Help
If you have been accused of embezzlement, you may face hostility from ex-employers who believe you violated their trust, as well as law enforcement investigators who do not have your best interests in mind. There is no need to deal with the situation on your own. Contact a defense lawyer today.
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