Embezzlement is an illegal taking of any “money, bill, note, check, order, draft, bond, receipt, bill of lading or any other personal property, tangible or intangible” which a person has received for another or for his or her employer by virtue of office, trust or employment. Proof of embezzlement is sufficient to sustain a charge of larceny.
A person who has been convicted of felony embezzlement may be sentenced from 1 to 20 years in a state correctional facility or, within the discretion of the court or upon the recommendation of a jury, up to one year in jail and a $2,500 fine. A person who has been convicted of misdemeanor embezzlement may be sentenced to up to one year in jail and a $2,500 fine.
The degree of larceny or embezzlement depends on the value of the money or goods taken. A person who has been convicted of embezzlement of $500 or more is guilty of felony embezzlement. If the total value of the goods or money taken is less than $500, the person can only be found guilty of misdemeanor embezzlement. A misdemeanor conviction for embezzlement, while less serious than a felony conviction, can have a lasting impact on a person's reputation and career because of the nature of the crime.
What is the difference between larceny and embezzlement in Virginia?
A person who has been convicted of embezzlement shall be deemed guilty of larceny. The charges are quite similar, except that an embezzlement charge involves the defendant's employment or other position of trust. It is common for employees in certain jobs to handle funds for their employer. Taking an employer's property for personal use can result in an embezzlement charge. It does not matter if the defendant intended to pay the employer back later.
Many embezzlement cases occur at work, but a person can also be found guilty of embezzlement if they are in another position of trust with authority over another person's personal property. For example, if you are asked to temporarily hold onto money for a friend, you can be found guilty of embezzlement if you spend the money and fail to return it.
Simply put, the difference between larceny and embezzlement is that for embezzlement, when you originally come into possession of the property or money, you have the owner's permission to have it. For larceny, though, you never have permission from the owner to possess the property or money.
What are possible defenses to a charge of embezzlement?
Defenses to a charge of embezzlement will depend on the facts of the case. The prosecutor must prove each and every element of the charge for the defendant to be found guilty of embezzlement. If the state cannot prove its case, the defendant must be found not guilty. A person who has been charged with embezzlement has a right to a jury trial, but the defendant may be able to waive a jury and try the case before a judge.
Since the Commonwealth has the burden of proving the defendant is guilty of embezzlement, some cases may be dismissed for lack of evidence. For example, if an employer claims that items went missing during the employee's work hours but the employer cannot prove what was taken or that the defendant was the person who took the items, the evidence will likely be insufficient to support a charge of embezzlement.
Mistake of Identity
In some cases, it will be difficult to prove that the defendant is the person who took missing money or other property. This may be a plausible defense if multiple people had access to the items or funds stolen. A defendant does not need to prove the identity of the person who is actually guilty of the crime charged. Raising a reasonable doubt as to his or her own guilt is sufficient because the state has the burden of proving the case beyond a reasonable doubt.
Lack of Intent
If the defendant reasonably believed that they were entitled to take the money or property, they may be found not guilty because they lacked the intent to commit embezzlement. The Commonwealth has the burden of proving that the defendant had the mindset or intent to commit the crime. It can be difficult to prove what was on someone's mind when an incident allegedly occurred, but a judge or jury can infer the defendant's mental state from the facts and circumstances that were present at the time.
An entrapment defense involves showing that the government induced the defendant to commit the crime. To rebut the defense of entrapment, the prosecutor will likely argue that the defendant was inclined to commit the crime anyway. This type of defense will depend on what lengths the government went to in order to get the defendant to commit the crime. If the defendant has no prior history of committing this type of crime, this can help prove that the defendant had no propensity to commit embezzlement.
What if I offer to pay the money back?
If you believe you are suspected of embezzlement or being investigated at work, do not do anything without first speaking to a criminal defense attorney. Offering to pay the money back can be considered an admission of guilt and may be used later in court to prove the case against you. If there is not much evidence of your guilt other than an admission of guilt, any statements you have made can be very damaging to your case.
When the prosecutor has sufficient evidence that you have committed embezzlement, and you are considering pleading guilty, your attorney may be able to negotiate a plea agreement that allows you to stay out of jail or avoid prison time. In some cases, your attorney may be able to negotiate a plea bargain where you agree to pay the money back in exchange for a lesser sentence. Unlike your own statements, your attorney's statements to the prosecuting attorney during negotiations are not admissible in court against you. Any offers to settle the case should be made through your attorney.
Anything you say to your attorney is protected by attorney-client privilege. If you have questions about mitigating the charge, you can ask your attorney questions about this, and your information must be kept confidential. For example, some cases of embezzlement are related to underlying addictions such as gambling or substance abuse problems. While a person cannot be punished for embezzlement by being sentenced to receive counseling, getting help for any underlying problem that caused the defendant to commit a crime is an example of a mitigating factor that might help a defendant obtain a lesser sentence.
What should I do if I am accused of embezzlement in Virginia?
If you have been accused of embezzlement, speak to a criminal defense lawyer right away. Many embezzlement cases are high-profile cases, especially if the defendant holds a public office or is in another position of public trust. It is important to speak to a lawyer before talking to the police because the police are usually only trying to obtain evidence against you, even if you are only trying to clear your name by speaking to them. Contact Bryan J. Jones, LLC online or by calling (434) 260-7899.