Charged with Embezzlement? Here’s What to Do
First, the person must have been given possession of the property while in a position of trust and confidence. Next, the property needs to have been converted in some fashion, to where it is no longer in the possession of the original owner, and is being used by the person being charged for some purpose. The last element is that it must be shown that the person has done these things with the intent to permanently deprive the owner of his property.
- The accused must have been in a position of trust and confidence and trusted with possession of someone else’s property
- That person must then have converted that property for their own use, by taking it or hiding it or any other means
- The intent of the accused must have been to permanently deprive the ownership of that property from the owner
- The accused must have wrongfully taken an item belonging to someone else without the permission to do so
- It is necessary that the property was then moved out of the possession of the owner and relocated to another place for the accused to have use of it.
- The intent of the accused must be that they intended to take the property in order to take the ownership of it away from the rightful owner permanently.
In determining the differences between the two crimes, the main contrast can be found by looking at element number one in each. For embezzlement, the accused is in a position of trust and confidence with possession of the property in question. This is not the case with larceny. Larceny is committed by a person with no involvement or authority to any aspect of the property. It is a completely unlawful access and removal of the items.
Both embezzlement and larceny can be forms of theft, since both contain illegal takings. With larceny, it is required that the property be physically moved and relocated to be possessed by the accused. This is another difference from embezzlement, because that often involves bookkeeping deception, which only involves the movement of money through the ledger book, not physically moving anything.
Some examples of these crimes can make the difference even more apparent. If you consider an employee of a grocery store, perhaps the meat department manager, we can see these contrasts sharply.
The meat department manager would be assumed to be responsible for the meat in freezer and in the freezer cases in the store. If he were to walk out of the store with two steaks in his pockets, he would have been attempting to remove those items that he was in a trusted position to oversee. That is embezzlement.
Now, suppose that same person were to walk into the next grocery store he passed. He proceeds to take two steaks from the meat case, put them in his pockets, and walk out the door. He would be charged with larceny in that case.
In both cases, the same person is walking out the door of a grocery store with two steaks in his pockets. In the second store, however, he has no duties or responsibilities for those steaks. That is what separates the two crimes.
In the state of Massachusetts, the sentencing guidelines followed for a person convicted of embezzling are the ones used for larceny. This indicates that as far as the state law is concerned, the punishments would be decided on the same grid. For values involving under $250, this would qualify as a misdemeanor, and maximum sentencing would be jail time of up to one year and a fine of up to $300.
For stolen property with a value of over $250, this becomes a felony. As with all felonies, the fines are higher and the sentences are longer. The maximum sentencing for this level is five years in a state prison and/or a fine of up to $25,000.
When federal level charges are brought against someone for these charges, they become even more severe than the state charges. These then incorporate the USSC Guidelines for sentencing, and use variables from all aspects of the case to determine the sentencing range they are to be considered against.
In defending these cases, there would not be a significant difference in how they would be defended either. Both charges involve essential elements, and there would be effort put forth to look for ways that those elements could not be satisfied. Sometimes it is intent that can be argued, and other times the permanency component is challenged.
In addition, there would be the monitoring of evidence and testimony looking for pieces that contradict, do not match, or were obtained in an unlawful manner. This can lead to evidence being cleared from the record, as well as occasional dropping of charges.
Another effective defense, when other avenues do not produce desired outcomes, is to enter into plea bargaining negotiations. These can lead to lesser crimes and smaller punishments, in terms of sentencing and fines.
Due to the initial change of possession as part of the original agreement, these kinds of crimes are usually committed in an employer/employee situation or in a relationship involving some sort of fiduciary duty to faithfully supervise someone else’s property. It normally involves the funneling of money into or out of certain accounts, but can also involve products or goods.
In contrasting the difference between state and federal charges, it is completely dependent on the crime committed. For crimes that only violate state statutes or laws, then the charges would only be brought on the state level. They would be evaluated and sentenced based on the laws established for the state of Massachusetts. For a case to involve federal charges, there must be a part of the crime that broke laws on a federal level. These are tried in federal courts and sentenced with federal guidelines. Examples of these crimes will make this more clear.
Examples of Embezzlement Charges
State violations of embezzlement would be a case where one person is babysitting for a neighbor and each week they take some money from their house. It would not have to be money. It could be DVDs or clothes or any other items. While they were babysitting, they were put in an authority position over the home, and by permanently taking items from it, they have violated all three elements of an embezzlement charge. Similarly a person working at a store or restaurant taking money from the cash register and putting into their pocket is another case of embezzlement. A waitress that takes orders and serves food but never turns in the receipt or the money is also guilty.
Violations of federal laws would involve aspects of the federal laws that are designed to oversee interstate commerce-types of activities. Any business-related crimes that involves locations in more than one state can involve this kind of interstate commerce. An accountant may be employed by a company in Vermont, and if his crime involves creating fictitious employees on the company payroll that he cashes personally, and that payroll company is in Massachusetts, he has violated these laws.
Other forms of federal violations involve anything dealing with securities, such as stocks or bonds or other investment tools. By embezzling anything involved in the stocks or investments of others, a person will absolutely be in violation of federal laws.
The punishments given for being convicted of embezzlement do vary between state and federal charges. For state charges in Massachusetts, the sentencing follows what has been established for all larceny convictions.
It is considered a felony for values under $250 that are not a firearm. For violations above $250 or that involve a firearm, the punishments can be up to five years in a state prison or up to 2 years in a jail, and a fine of up to $25,000.
Federal charges are figured using the United States Sentencing Commission (USSC) Guidelines designed to normalize sentencing across crimes and locations. They use a point based system to determine the range of possible sentences a person has to be considered for given a certain crime. There are many variables involved in determining the sentence on this sentencing table, but the sentences and fines are much steeper for federal convictions.