What is Embezzlement

 

Under Virginia Law, embezzlement takes place when a defendant wrongfully and fraudulently uses, disposes of, or conceals money, or personal property of another individual that the defendant was entrusted to watch over or manage. VA Code Ann. § 18.2-111. Often embezzlement takes place when the defendant is entrusted with the money or personal property by his employer, the virtue of his office, a company, or a corporation. 

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Elements of Embezzlement

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To convict an individual of embezzlement, the Commonwealth of Virginia must establish the three statutory elements of embezzlement: (1) the defendant wrongfully or fraudulently appropriated to his use, conceal, dispose, or benefit from the another individual’s property, with the intent to deprive the owner of the use thereof, (2) the property was entrusted to the defendant by his employment, office, or position, and (3) the property was valued at $200.00 or more. VA Code Ann. § 18.2-111.

 

Punishments for Embezzlement

 

In Virginia, the punishment for embezzlement depends upon the value of the property stolen. VA Code Ann. § 18.2-95 &-96. Individuals can be charged for either misdemeanor embezzlement or felony embezzlement. If the property that was stolen was valued at less than $200.000, the embezzlement is classified as a Class I Misdemeanor with a maximum jail sentence of 12 months and a maximum fine of $2,500.00. However, if an individual embezzles property valued at less than $200.00 but is a third-time offender, the state will prosecute the defendant as a felony defendant. If the property stolen is valued at $200.00 or more, or the property is a firearm of any value, the embezzlement is classified as a Class U felony with a maximum jail sentence of 20 years and a maximum fine of $2,500.00. Virginia Criminal Code § 18.2-95. 

Virginia Criminal Code § 18.2-96. Virginia Criminal Code § 18.2-152.8. For both misdemeanor and felony embezzlement, courts often make defendants pay restitution in the form of money to the victim of the crime for the value of the property stolen or damaged.

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Defenses for Embezzlement

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Defenses for embezzlement depend on a variety of factors including the charges being brought, the defendant’s criminal history, and the defendant’s employment history. Common defenses for embezzlement include:

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1. Lack of Intent: One of the elements that the Commonwealth must prove to convict a defendant of embezzlement is intent. The prosecution must prove that the defendant intended to fraudulently use or claim ownership of the property entrusted to him with the intention of depriving the true owner of the use thereof. If the prosecution is unable to prove intent, the defendant will not be convicted for embezzlement, making lack of intent a common defense for embezzlement charges. A common lack of intent defense occurs when the defendant faces embezzlement charges when they thought the property was rightfully theirs. Under a bona fide claim of right, or when the defendant maintains a good faith belief that he has some right to the property, there is no charge for embezzlement. For a successful defense, defense counsel will need to prove to the court that at the time of the defendant’s actions, the defendant was truly believed that he had ownership rights to the property in question. 

2. Insufficient Evidence: If the prosecution is not able to produce sufficient, clear, and convincing evidence to prove the defendant’s guilt beyond a reasonable doubt, the court will dismiss the embezzlement charge.  

3. Good Faith: The Good Faith defense is closely related to the lack of intent defense and requires that the defendant acted in good faith. For such a defense, the defendant will argue that he reasonably believed that he was not wrongfully acting. The Good Faith defense is common in cases where the defendant is accused of wrongfully using funds entrusted to them. For example, a defendant may have wrongfully allocated money meant to be spent on a specific aspect of the project to another piece of the project. If the defendant can prove he acted in good faith, demonstrating that he did not intend to or realize he was acting wrongfully, the Good Faith defense can lead to reduced penalties or dismissal of the embezzlement charges.

4. Duress: Duress takes place when an individual is illegally forced by another person to conduct a specific activity. Duress may take place when a workplace superior forces, by threatening termination or other consequences, an employee to alter company record leading to the embezzlement of company property entrusted to the employee. To use the defense of duress, a defendant must prove that he had truly believed that he risked some kind of danger or injury if he did not engage in the criminal behavior. 

5. Entrapment: Entrapment is a similar defense to duress. When entrapment occurs, an individual engages in criminal behavior they would otherwise usually engaged in as a result of being compelled by government agencies. Entrapment differs from duress because it does not feature a threat. Rathe, entrapment is a trap set by the government to entice a person into committing a crime. 

6. Mental Incapacity: If the defendant can prove that he was suffering from mental incapacitation at the time of committing the crime, the prosecution will be able to satisfy the intent requirement to prove embezzlement.

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Related Crimes

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Embezzlement is a type of larceny or stealing. Yet, embezzlement remains distinct from theft and larceny. Theft crimes are usually charged as “larceny” and range from petit larceny, including shoplifting, and grand larceny, which takes place when the property that was stolen is valued at $2,000.00 or more. Larceny takes place when property is taken from another individual without that person’s consent.

 

Embezzlement remains a distinct form of theft. Embezzlement takes place when the property was entrusted to the defendant initially, but the defendant then uses the property wrongfully and fraudulently as his own property.  

 

Embezzlement is also distinct from fraud, another form of theft. Fraud takes place when an individual uses deception to acquire something of monetary value. Examples of fraud include, an individual convincing others to give him money under false pretenses, lying about income or employment to attain loans, misrepresenting tax returns, using a stolen credit card, money laundering, and writing bad checks. Fraud can be charged based on the method of deception used or based on the cover-up methods utilized. Both fraud and embezzlement are sometimes labeled as “white-collar crimes” as they are non-violent crimes that violate trust, require concealment efforts and deceit, and are committed for financial gain. 

 

While larceny, fraud, and embezzlement maintain important differences, they are all serious crimes of theft that require adequate legal representation. 

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