What Are Some Common Defenses in an Embezzlement Allegation?

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What Is Embezzlement?

Embezzlement is a form of theft, legally called “larceny.” It is a white-collar crime where a person has been entrusted with someone else's money or property. This person then steals or misuses those funds for their personal gain.

Examples include:

  • A trustee stealing funds from a trust
  • A financial advisor misusing a client's investments
  • An employee stealing money from their employer

Embezzlement is considered a serious offense and can result in both criminal and civil penalties, such as fines, restitution, and even imprisonment. The severity of the punishment depends on the amount of money or property stolen. The court also considers any aggravating factors such as prior convictions or the use of force to commit the crime.

Virginia’s Embezzlement Penalties

Punishments vary depending on the amount of money that was allegedly stolen.

Less Than $1,000

Class 1 misdemeanor; up to 1 year in jail; fines up to $2,500; financial restitution to the victim

More Than $1,000

Class U felony (“U” is used when the charge does not fit neatly into a predetermined felony category); up to 20 years in prison; fines up to $2,500; financial restitution to the victim

Effective Defenses Against an Embezzlement Charge

The Evidence Does Not Support the Charge

There may be no clear proof that the accused intentionally misused or stole their client.

For example, an employee could have access to company funds use them in ways they believed to be legitimate. Perhaps the money went directly to business expenses, but the suspect made a mistake in accounting procedures.

Remember that the burden of proof rests with the prosecution in criminal cases. They must present sufficient evidence to convince the court of guilt “beyond a reasonable doubt.”

There Was No Intent to Commit Fraud

Embezzlement is a form of theft, but it is also a form of fraud.

A "no intent" defense argues that the accused did not mean to steal or misuse the property. For a person to be convicted of embezzlement, the prosecution must prove that the suspect knowingly, willingly took the money or property for personal gain.

For example, imagine an employee who is given access to company funds. This person mistakenly believes that they are authorized to use those funds for personal expenses. They could argue that they do not have the necessary intent to commit embezzlement.

Similarly, an individual acting on someone else’s behalf could mistakenly uses their funds for personal expenses. The financial world is complicated, and errors like these are common.

However, it's important to note that, even if there was no intent to commit embezzlement, the accused may still face consequences. They could be forced to repay any misused funds or suffer disciplinary action from their employer. It ultimately depends on the specific circumstances of each case and how convincing the "no intent" defense is.

You Operated Under Duress

A duress defense argues that, through another person’s threats or coercion, you were forced to commit a crime. For a duress defense to work, the accused must show that they or their loved ones were under imminent threat of harm, and there was no reasonable way to avoid committing the crime. They had no choice but to follow the aggressor’s orders.

For instance, someone’s supervisor threatens them with physical harm or death unless they embezzled funds from the company. Similarly, if an individual's family member is being held hostage, and they were ordered to commit embezzlement in exchange for a release, this could also be considered duress.

Duress is also a viable defense in situations that are not overtly dangerous. Courts often acknowledge the power dynamics between an employer and their employee. If someone was pressured into an illegal act by their superior, this is a legitimate duress defense.

Duress defenses can be difficult to prove, and the case requires strong evidence. Your attorney must prove that was no other reasonable option available. Additionally, even when a duress defense is successful in court, it may not result in complete exoneration. The accused may still face consequences such as restitution or probation, depending on the specific circumstances of their case.

The Police Used Improper Procedure

Improper police procedure can refer to a variety of issues related to how the police handle the investigation and arrest the accused.

Some examples of improper police procedure in an embezzlement case might include:

  • Profiling
    When there is evidence that race, sexual orientation, gender expression, and so on influenced the police investigation, this is considered discrimination and may also be grounds for dismissal of charges.
  • Using Excessive Force
    Any use of excessive force during an arrest or interrogation could lead to charges being dropped or dismissed.
  • Failing to Follow Proper Procedures
    The police must follow specific procedures when conducting an investigation, such as obtaining search warrants or following chain-of-custody protocols when handling evidence. If they fail to do so, the integrity of the investigation can be compromised. This could result in charges being dropped.
  • Violating the Accused Person's Constitutional Rights
    If the police obtained evidence through an illegal search or seizure, or if they coerced a confession out of someone without reading them their Miranda rights, then any evidence obtained may be inadmissible.

It's important for law enforcement officials to follow proper procedures when investigating embezzlement cases, not only to ensure that justice is served but also to protect individuals' constitutional rights.

If you’ve been accused of stealing money or property entrusted to you, The Law Offices of Daniel J. Miller is here to help. You can schedule a free consultation with us by calling (757) 267-4949 or contacting us online.

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