What Constitutes the Crime?
In order to convict you of embezzlement, the prosecution must prove all of the following elements:
- You were given access to funds or property
- Which was granted to you because the owner trusted you
- You then used or modified that property to your advantage
- In doing do, you intended to deprive the owner of his property,
You might recall the famous Ponzi scheme where Bernie Madoff was given access to many investors’ funds. His investors gave him access to their funds because he promised them a high return rate. He then used new clients’ funds to pay off his old clients, depriving them of their money. All together, his clients were out $65 million.
Embezzlement schemes aren’t necessarily as grandiose as in the Bernie Madoff case. If you recall the first part of the first Hangover movie, middle school teacher Phil collects “field trip” money from his students. He then pockets the “field trip” money into his Vegas fund. Phil could be charged for embezzlement. His students gave him money because they believed they were to go on a field trip. Because Phil spent their money for his own benefit, his students were “deprived” of their property.
On the flip side, here’s a negative example. An owner of a restaurant is going out of town, and while he’s away, he authorizes his employee, Jeff, to to be in charge of the restaurant. After a day on the job, Jeff notices mold on the cracking walls. Jeff spends $5,000 to renovate. Upon his return, Jeff’s boss is furious he’s out $5,000, and sues Jeff for embezzling him. However, Jeff did not use the $5,000 for his own advantage. Clean smelling walls yield no advantage to Jeff. He also did not conceal his act, nor did he deprive the owner of his property. Jeff would not be convicted of embezzlement.
What are the Penalties for Embezzlement?
There are two types of embezzlement charges, Petty Theft Embezzlement and Grand Theft Embezzlement. The charges are determined based on the value of the property that was supposedly embezzled.
Wobbler Violation: Grand Theft Embezzlement
You can be charged with Grand Theft Embezzlement if the property that was supposedly embezzled is worth over $950.00, or
- A firearm, or
- An automobile.
- If convicted and charged with a misdemeanor, you face: misdemeanor probation, or maximum one year county jail sentence, or a fine of up to $1,000.00, or all three.
- If convicted and charged with a felony, you face: 16 months, or two, or three years, in a county jail, or a fine of up to $10,000.00, or both.
Misdemeanor Violation: Petty Theft Embezzlement
All other types of embezzlement that do not satisfy the definition of Grand Theft Embezzlement are charged as Petty Theft Embezzlement,
Misdemeanor probation, or a maximum six month jail sentence, or a fine of up to $1,000, or all three.
What are the Defenses to Embezzlement Charges?
Lack of Intent: Simply using property funds or assets does not suffice for being charged with embezzlement. The person who was granted access to the funds or property must intend to deprive the owner by using or modifying that which was entrusted to him.
Good Faith Belief: A person who is given access or authority to someone’s funds and acts in good faith when spending them cannot be charged with embezzlement. The court will determine whether or not you had a good faith belief by considering the facts you knew at the time you had access to the property.