Embezzlement is a white-collar crime that involves the legal possession of property or monies belonging to another person, which is converted to personal property or money or is used for unauthorized purposes without consent from the owner. For there to be an embezzlement case against you, it must be clear that you were legally in possession of the sums of money or property in question, that you converted the assets in question to your own or used them without the expressed authority of the owner, and that you had no intention of reverting the said property or monies to the owner. Any act of embezzlement is considered a breach of trust, and as such, it is a criminal violation. The legal parameters that address embezzlement cases are set under Virginia Code § 18.2-111.
The prosecution of embezzlement crimes is complex and will require input from expert witnesses, legal experts as well as financial experts. You can gain access to all these professionals by the use of a lawyer. If you are in Fairfax or Northern Virginia, contact Virginia Criminal Attorney for help if you are facing embezzlement or any property crime charges.
Legal Definition of Embezzlement and its Penalties
Embezzlement is a crime prosecuted subject to the various laws the specific case falls within. The facts of the case determine the laws violated and as such, the appropriate penalties that should be imposed on the defendant.
The crime is prosecuted under the Virginia Code § 18.2-111. It states that anyone found to have disposed of, concealed fraudulently or used personal property, money, receipt, money orders, notes, bills, bonds, checks, or a bill of lading, which they received from a person to whom they have a trust relationship will be deemed to be in violation of the dictates of the law and as such, guilty of the crime.
Embezzlement is deemed as larceny according to the code. Any proof of the crime is enough evidence to consider the defendant guilty of larceny. Larceny, simply put, is a crime of theft. The courts in Virginia offer the following actions as aspects that define larceny; fraud, the intention of converting the sums of money and/or property to their own, and permanently deprive the owner of the benefits they earn from the property or money stolen as the consequences of the said actions.
Larceny may be prosecuted in one of two ways; either as a misdemeanor or a felony. Larceny pursued as a misdemeanor is referred to as petit larceny. Anyone guilty of the crime must have misappropriated sums of money that are less than $5 or $500 worth of property. The offense is punishable as a class 1 misdemeanor. The penalties for this offense include a 12-month jail sentence with the possibility of a fine of not more than $2,500. You may also be required to pay restitution sums to the victim(s) in the case, an amount whose value will be as per the court’s direction.
Grand larceny is deemed to have occurred if the sums in the case exceeded $5 and $500 for the property. The crime is classified as a class U felony charge. This means that you stand to serve a prison sentence of not more than 20 years and/or a fine not exceeding $2,500. Depending on the court’s determination, you may also be required to pay restitution sums to the victim(s) in the case.
How Embezzlement Occurs in Virginia
Intent and conversion are the main aspects interrogated when prosecuting an embezzlement case. Intent means the motives of your actions, while conversion addresses your actions of changing the said property to your own or for your benefit to the detriment of the owner. All these, coupled with a breach of trust, lead to different ways in which embezzlement can occur.
Embezzlement in Employment
Employees use various avenues to shortchange their employers for their gain. The abuse of overtime privileges and siphoning of the entity’s finances top the list of channels employees use for personal gain.
In most companies, overtime comes with financial benefits for the employee. It is a sure way to reward the employees for their extra effort beyond the required working time. Commissions too fall in this category. If an employee falsified records to show that they worked for extra hours or sold more units for them to access the financial reward, they are deemed to have embezzled the funds of their employer.
Embezzlement in Property
While most embezzlement cases may be about money, the cases can also involve properties. There is no limit to what constitutes property in this case. From the ongoing, any conversion of property without consent from the owner fits the definition of embezzlement. Therefore, anyone found to have used another person’s property for personal gain without their permission will be liable for embezzlement charges.
Legal Provisions of All Cases Deemed As Embezzlement
According to code § 18.2-111.2, any employer who withholds sums meant to pay for an employee’s child support and fraudulently or by wrongdoing withholds the funds or fails to honor the payments shall be deemed to have embezzled the funds and as such, be guilty of the crime.
Embezzlement by Public Officers
Virginia Code § 18.2-112 states that anyone who in their capacity as a public officer knowingly misappropriated or misused public funds or used the funds other than following the provisions of the law is guilty of embezzlement and shall have their case treated as a class 4 felony charge. Any default in the remittance of the funds in question to the proper authorities shall be deemed as evidence of their guilt.
Code § 18.2-112.1 further states that any public officer who uses public resources for private use or other duties unrelated to the discharge of their mandate to which they were appointed or elected to carry out, will be guilty of the crime as a class 4 felony. The value provided for under this provision is any sums more than $1,000 over 12 months. All non-full-time public officers will be liable for class 1 misdemeanor charges if it is proved that they used public resources for their personal and private use without lawful authorization.
Financial Impropriety within Financial Institutions
All clerks and all other officers are tasked with the responsibility of maintaining proper financial records within a joint stock company, financial institution, or corporation. Therefore, if in their actions it is determined that they operated in a manner geared to conceal the true financial status of the company, or they intended to defraud the entity of its financial resources, they are guilty of a class 4 felony charge subject to the dictates of Code § 18.2-113.
Collection of Funds by a Court-appointed Officer
An officer appointed by law or by the court shall account for all monies and properties collected on behalf of the courts. In the discharge of their mandate, they shall adequately account for the said sums, failure to which, they shall be deemed guilty of larceny of the amounts in question. This legal matter is addressed under code § 18.2-114.1.
Conversion of Property Subject To Lien
There are situations where individuals get into an agreement where one commits to being the custodian of the owner’s property up to such a time that the owner collects the said property. Section § 18.2-115 acknowledges this kind of arrangement. If the custodian of the said property were to move, fraudulently sell, pawn, pledge, or transfer possession to another person when the legal title of the property has not transferred to him or her, they shall be considered to violate the law. The Code is in place to protect the rights of third parties as well as those of the owner of the property under dispute.
Unlawful Sublease of a Car
Any actions whose motive is to sell, transfer, lease, or assign a car to another person without the express authority of the title owner shall be considered a violation of section § 18.2-115.1. The title owner can be the one who gave the vehicle to the party selling for use or care. It could also be a leasing party or a financial institution to whom the car belongs to because of the value of credit attached to the vehicle.
Any person who aids, causes, or organizes a sale, transfer, lease, or passing on of a vehicle to a third party without authority from the owner, or titleholder, shall be considered to be assisting, arranging or causing the crime and by extension, shall be deemed to have also committed the offense. Any violation of legal provisions in section § 18.2-115.1 is treated as a class 3 misdemeanor.
Failure to Return Goods Belonging To Another Person
If you are provided with goods, wears, or products to which you are required to showcase on behalf of the owner, you should return them. Failure to take back the products, wears, or merchandise to the owner in an unused form, or the lack of offering payment of the value of the products, wears, or merchandise is larceny. This provision is set out in section § 18.2-116. The law, however, has a caveat. It shall not be enforced unless the written demand for the products, goods, or wears is within five days after their delivery.
Failure on the Part of the Bailee to Return a Vehicle, Boat, Animal, or Aircraft
All boats, animals, aircraft, or vehicles that are given to a bailee by a bailor within the terms of their bailment agreement shall be returned to the bailor in the same condition. Section § 18.2-117 further states that should the bailee violate the terms of the contract and fail to return the property mentioned to the bailor, they will be contravening the law and as such, deemed liable for larceny. Failure on their part to return the property within five days of the agreed time as per the agreement shall be considered as evidence of theft.
Fraudulent Removal or Conversion of Leased Personal Property
One is deemed to be in control of property that is under a lease agreement or a purchase agreement according to the provisions in section § 18.2-118. If the individual is to fraudulently dispose off the personal property or destroy the said property without the express consent of the owner, they shall return or compensate the owner for the lost or damaged property within thirty days, failure to which, their rental, tenancy, or lease agreement shall be expired and the individual guilty of the crime of larceny. Among other penalties, the court shall require restitution to the property owner a sum in its view is adequate compensation. The guilty party shall also foot the repair costs and restore the value of the property in question as well as meet the costs incurred by the owner due to the fraudulent conversion of their property.
Common Legal Defenses in Embezzlement Cases
You need legal representation with experience in handling embezzlement. In so doing, you ensure you put up a strong defense in dealing with the embezzlement charge brought against you. Here is a look at some legal defenses your attorney will use in your defense.
Insufficient Evidence is produced before the Court
It is up to the prosecution to produce evidence that will be used to prove, beyond any reasonable doubt, that you are guilty of the embezzlement charges. However, they may not have sufficient evidence to support the allegations, and as such, you may have a not-guilty verdict in the end.
The Charges were a Result of Entrapment
There are situations where the government, through sting operations, set up a trap for you to commit the crime. The argument the prosecution will present is that you reasonably acted on your own when committing the crime and not as a result of the enticement offered by the government. Your defense should argue entrapment if the facts of the case show that your actions were the result of pursuing the bait provided by the agents in the operation and that you were not predisposed to commit the crime.
The Actions Were In Good Faith
This defense is used by attorneys to present a case that your actions were informed because you legitimately believed that you were acting in good faith. This defense is mostly used in embezzlement cases that involve the wrong use of funds. The defense should present a compelling argument that you indeed acted with pure intention.
The Offense was Committed Due to Duress
Duress as a defense can only be viable if you prove that certain danger or harm would result if you failed to act and commit the crime. Cases of self-preservation or actions that were meant to address personal matters put a dent in this defense. It must be clear that there was no other alternative or cause of action other than committing the crime.
Lack of Intent in the Crime
The intention is interrogated in criminal proceedings, and such is the route followed in prosecuting embezzlement. You will need to show to the court that you did not intend to commit the crime, but you were at the time convinced you had rights to the property thus selling, disposing of, or used the property or funds as if they were your own. If it is proven, then the charges may be dismissed.
Full cognitive awareness is required if the intention is to be proved in court. However, any circumstances that may hinder the knowledge of your actions call into question your intent. Some of the conditions that can compromise your cognitive ability at the time you committed the crime could include the use of medication. If this is the case, then the actions that led to the embezzlement charge will be considered as actions carried out by a person who was not entirely in charge of their cognitive ability.
A Case of Insanity
It is a defense used but with a low success rate. It is assumed that you were fully aware of your actions at the time of the crime. However, the defense can argue otherwise claiming that your efforts were that of an insane person. Regardless of its low success rate, it is still a defense option attorneys may consider.
If you were to pay part of the sums involved in the case, you might receive reduced sentences. However, any action related to determining what penalties you should pay is solely at the court’s discretion based on the facts of the case.
Contact a Virginia Criminal Attorney Near Me
Criminal cases can go either of these two ways; you can be found guilty or not guilty. The stakes involved make it necessary to hire an attorney. Having a defense attorney arguing your case increases your chances of a not-guilty verdict or the dismissal of the charges against you. This is why you need to get in touch with Virginia Criminal Attorney. For the many years that we have served residents of Fairfax and Northern Virginia, we have gained experience of handling any fraud or white collar case in accordance with Virginia criminal laws. Contact 703-718-5533 and let us review the facts of your case and build up an ideal defense strategy.