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Embezzlement Sentencing Considerations in New York

January 3, 2020 Federal Criminal Attorneys
Theft Crime: Embezzlement Sentencing Considerations In New York

When federal agents and prosecutors pursue charges of embezzlement, they approach the case with the intent of seeking the harshest possible penalties. In most situations, this will involve convincing a jury to recommend penalties of $250,000 fines and prison sentences of as much as 20 years. When faced with these possibilities, many defendants panic and often make critical mistakes along the way with their case, sealing their fate. To avoid putting yourself in this position, always turn to an experienced white-collar crimes defense attorney who not only understands the games prosecutors play in these matters, but who is also skilled enough to outsmart them at every turn.

Defining the Crime of Embezzlement
When facing these situations, many defendants are confused by the fact that federal criminal law does not actually contain the crime of embezzlement. Instead, defendants are usually prosecuted under various statutes concerning wire, securities, bank, or mail fraud. Since each of these statutes contains many different requirements as to what actually constitutes a crime took place, even the smallest piece of evidence can take a case from looking hopeless to one where your attorney can have the charges reduced or dismissed.

Can Prosecutors Prove the Elements of Embezzlement?
To win their case, prosecutors must be able to prove the four key elements of embezzlement took place. The first of these is that you as the defendant were in a position of trust with another individual, company, or organization regarding the handling or oversight of money or property. Next, it must be shown you acquired the money or property in question while acting in your capacity within the position of trust. Third, prosecutors must show you took money or property while in that position of trust for your own benefit. Finally, it must be proven that you made a conscious decision to take money or property from another party while in your position of trust, and did so with the intention of improving yourself financially.

How Sentencing Guidelines are Used
When facing embezzlement charges, federal sentencing guidelines will play a huge factor in the type of sentence that could be handed down against you. In many situations, courts and juries will be asked to take into account just how much managerial or professional discretion you as the defendant had while in your position of trust. For example, if you were an accountant who stole money from your company or you were a bank loan officer who falsified records to create a fraudulent loan scheme, your actions may be looked at more harshly than perhaps a bank teller who embezzled funds. Yet whatever situation you may be facing, never assume anything. Instead, hire an experienced criminal defense attorney who is committed to having your legal rights protected no matter what prosecutors may attempt.

No Guarantees Regarding Sentences
If you have made the mistake of speaking with authorities on your own, admitting guilt to embezzlement, and agreed to accept a deal that was presented to you, the result may be a situation far worse than you imagined. Under federal sentencing guidelines, even if you have an agreement with prosecutors on a sentence, there is no guarantee you will actually receive the agreed-upon sentence. In these situations, District Judges have tremendous leeway when it comes to determining the sentence defendants should receive if found guilty of embezzlement. In fact, the judge will usually instruct the Federal Department of Probation to prepare a pre-sentencing report on you, detailing such things as family history, work history, prior criminal history if any, and much more. As a result, anything can happen as your case works its way through the courts. Therefore, have an attorney on your side who not only understands this process, but is also prepared to argue vigorously on your behalf.

Use Your Best Judgment
When you are in the process of being sentenced for embezzlement, it is vital you exercise good judgment at all times. By doing so, you give your lawyer the best possible chance of negotiating to make sure you receive as lenient a sentence as possible. Since the pre-sentencing report will be a crucial part of your sentencing, do everything possible to work with your attorney during this process. While it may be embarrassing for certain personal details to be made available in this report, doing so can open up the possibility of a lighter sentence. While it may be hard to do so under the circumstances, always put your best foot forward in these situations and do everything asked of you by your attorney.

While you may fear the worst regarding sentencing for embezzlement, working with a knowledgeable lawyer can produce excellent results. Rather than make it easy for prosecutors to send you to prison for decades, let your attorney do everything possible to keep this from occurring

Embezzlement Laws, Charges & Statute of Limitations

The right to own property as well as other forms of capital is one of the foundations of laws all over the world. People are entitled under law to retain the items, money, home and any business interests as well as ownership of stock and other forms of capital. There are many different types of criminal charges that deal what happens when the owner’s rights are abridged. One type of criminal action is known by the term embezzlement. Essentially, someone being accused of embezzlement is being accused of stealing property. In general, the person being accused is someone who was given permission to interact with the person’s funds such as an employee of a company or had been given the direct right to supervise a person’s savings such as the manager of an estate.

Simply taking money from another person is considered theft. It rises to embezzlement when the person had a position where they were entrusted to keep watch over these funds on that person’s behalf. They might be paid a fee but they are supposed to act in the best interest of the client rather than using the funds to line their own pockets.

A person may be charged with embezzlement in state or federal courts. Federal laws typically apply to those who are given positions of authority in the federal government. For example, a state park ranger may be entrusted to oversee a public park as well as any money paid for admission to that park. In some cases, public and private interests intertwine. A construction company might have been charged with building a building on federal lands. The employee who steals items from the construction company can be considered to have embezzled property that belongs to the federal government. Public officials can also be charged with embezzlement if they work for the federal government in any capacity including elective office as well as those who have been hired by outside companies with contracts from the federal government.

Types of Embezzlement and Potential Charges

The federal government generally defines this kind of charge by what is taken as well as how much is taken. For example, someone who takes items that are collectively worth more than a thousand dollars might face up to ten years in prison as well as up to $250,000 in total fines. This is considered a felony. Someone who steals a lesser amount may still face up to a year in jail and $100,000 in fines. This kind of conviction falls in the misdemeanor category.

This kind of embezzlement may also include counterfeiting American currency. Someone who takes items that are used to create American currency may face similar fines and similar jail terms. Those who are entrusted with overseeing the distribution of any form of federal funds are typically facing penalties that might include prison time and many years in prison. A judge will take many factors into account when considering the sentence. That includes the defendant’s prior history as well as any efforts at repayment and evidence of remorse.

American government officials have set up a highly detailed point system to determine precisely how to respond to acts of federal embezzlement. This is known as the Base Offense Level. At the very lowest end of the scale are six points meaning the person has taken five thousand dollars or less. At the opposite end of the scale are thirty-six points where the loss is four hundred million or more. That makes this a very complicated issue that can play out in many ways. It’s a good idea to consult with a skilled attorney to discuss any next steps.

Additional Considerations

Like many other kinds of crimes, this crime has a long-term expiration date. Someone cannot be charged with embezzlement if the crime happened more than five years in the past. States also provide for prosecution of embezzlement charges. Like their federal counterparts, these cases can be very tricky to prosecute and may ask a great deal of the defendant. Each state has specific laws that pertain to this kind of crime. The laws vary and indicate the amount of money stolen and the kind of expected penalty.

There are a number of common misconceptions that occur regarding theft crimes. Multiple theft crimes are outlined in statutes on both a state and federal level. These can include everything from petty theft to embezzlement. It’s important to understand misconceptions about these crimes and to talk to an experienced lawyer if you believe you may be suspected of a theft crime.

Embezzlement Misconceptions

One of the most prevalent misconceptions about embezzlement is that it is a white-collar crime that doesn’t have any victims. Many perpetrators say that they rationalized the crime to themselves by telling themselves that insurance would reimburse the damages. But embezzlement can cause serious problems and even ruin people’s lives. If you’ve been accused of embezzlement, you need to understand the ramifications of the crime and talk to your lawyer about how to create the best possible defense.

There are other common rationalizations that people use as well. In addition to telling themselves that insurance will take care of it, they might think that ongoing theft isn’t an issue if no one ever notices it, and that no one will ever be hurt. But this isn’t accurate.

People who have their money stolen through embezzlement crimes can sometimes have serious life impacts. This is especially true if the money isn’t recovered. There’s no guarantee that insurance will reimburse the stolen money, so if they don’t get it back, they’ll have lost a lot. The person who committed the crime will do time behind bars and pay a fine, but the person who was stolen from might lose their life savings, their livelihood, their home, or their ability to provide for their family. They might not be able to buy groceries, pay their rent, or meet their day-to-day financial needs.

There’s a big misconception in embezzlement crimes that taking small amounts of money won’t have any impact on a physician, hedge fund, trust, bank, or other wealthy entity. Even though the business or entity might continue to operate seemingly unharmed, any negative loss has a serious effect on the company or entity’s ability to function.

The damage inflicted and the loss to the entity has a big impact on sentencing. For this reason, if you’re facing any kind of embezzlement allegation, it’s vital that you talk to an attorney to figure out the scope of the problem.

Embezzlement isn’t a crime that just makes numbers have issues on paper. There’s also an impact on real humans. The worse the impact to individual people, the worse the sentencing tends to be for the perpetrator. If you’ve been accused of embezzlement, your accuser might say that their business is bankrupt due to your impact. The accuser might also go into detail about the specific impact that the crime had on themselves, their employees, and their family.

These cases can become very emotional, and emotion has a big sway in the courtroom. A DA who hears from individuals affected by the crime tends to be harsher. If people impress upon the DA that they feel violated, have ongoing negative life impacts, and had their trust maliciously broken, the DA will be much less likely to view the accused with sympathy.

The on-paper numbers don’t matter as much as the human impact. The damage to the other person will have a much bigger impact in court and sentencing than the exact dollar figure stolen. If you defraud a family of their children’s college fund and retirement funds, for example, the lasting impact of this is more gutwrenching than stealing a million dollars from an extremely successful billion-dollar corporation.

If you’ve been accused of embezzlement, it’s not just about the numbers. You need to be aware that you will be facing the human element of the crime. You and your lawyer can talk about whether the best option is to explain away, minimize, or confront the human element as part of your defense.

Credit Card Fraud Misconceptions

There are a ton of credit card scams that people run to try to get sensitive financial information. Many misconceptions abound regarding the specifics of this crime. Like with embezzlement, one of the most common misconceptions is that the crime is victimless. You might believe that the credit card company will reimburse the individual, or that taking just a few dollars won’t impact anyone, or that finding a credit card isn’t the same as stealing.

People often rationalize their behavior while they’re doing it. When they get caught, they may be surprised to face the consequences of their actions. Credit card fraud can have a serious impact on the victims, especially if they didn’t have a lot of money to begin with. It can cause their bank account to become overdrafted, them to go into debt, and for their credit score to be negatively impacted.

New York Embezzlement Arrest Process

There are a few different ways that embezzlement charges can be brought against an individual in the state of New York. The best known is for the person to be arrested on the embezzlement charges. When this is the case, law enforcement officials will enter the individual’s residence or business and place them under arrest on embezzlement charges.

New York City can sometimes have complex arrest processes when embezzlement charges are involved. One of the most important things is that you understand your rights throughout the process. You should also be aware of what can and cannot be used against you during the case. When you’re told that you have a right to a lawyer, you should take that to heart. Don’t let television shows fool you: It’s not only guilty people who get lawyers.

In fact, invoking your right to an attorney as soon as you’re arrested is the most important thing you can do. Law enforcement will use manipulation tactics to try to get you to incriminate yourself. You need to use your right to remain silent and refuse to respond to them except to tell them that you’re invoking your right to legal counsel. If you say anything to them, it will be used in the prosecution’s case against you. Your lawyer will have a much easier time building a defense if they don’t have to clean up your messes.

Arrest Process

There’s another tactic that law enforcement officials will sometimes use. Rather than immediately arresting the person in public or in their home, they may call the person on the telephone. They’ll get a confirmation of the person’s identity and address, and then they’ll try to get the individual to come to the police station to talk with them.

Police aren’t obligated to tell you the truth on the phone. In fact, law enforcement officials will frequently lie. Sometimes they will tell these people that they’ve been victims of crime or witnesses to a crime. They’ll ask them to come to the police station to help with an investigation.

Another tactic law enforcement officials may use is to stop a person’s car as a part of the arrest process for embezzlement. They will give the individual a warning over some claimed traffic infraction. This is a tactic that law enforcement officials use to become closer to and observe individuals before they have an official arrest warrant.

Admissions of Guilt

If you are stopped by law enforcement for a claimed traffic infraction, or you are asked to come to the police station to discuss an investigation, you should not ever apologize. You may instinctively want to apologize to be polite and smooth the situation over. But if you’re being investigated for a different crime, an apology can be construed as an admission of guilt. If you admit guilt, even if you don’t realize you’re doing so, you may be giving law enforcement the ammunition they need to issue an arrest warrant.

If the police question you about a theft crime, whether you have any information about the situation or not, you should never admit involvement. Even if you’re not being arrested, and even if the police are acting like you’re not a person of interest, you should ask the officers to speak to your attorney instead. Innocent people are often entrapped into admitting to doing things they haven’t done because of the manipulation tactics of the police.

Gathering Evidence

Law enforcement officials will use investigative means to create a case against you whether or not you admit to your guilt. But if you provide an admission of guilt, creating the case gets a lot easier. Embezzling activity tends to leave traces, and once the police know what to look for, they’ll follow the trail.

One example would be if a person is engaging in wire transfers of unusual sums of money. The money they’re embezzling can be traced from the corporate account to the individual’s account. Purchases of real estate, luxury vehicles, or other goods that they shouldn’t have the financial means to obtain are also suspicious. If the police believe that you may be involved in a tax evasion, money laundering, or embezzling scheme, they can subpoena relevant records to determine where your money came from and how you spent it.

Custody Proceeding

Following the arrest, an individual will be taken into custody by law enforcement. They will be put through central booking in New York, and then they will face a judge. The prosecutor will then ask the judge to set bail. The amount of bail and whether bail is set will vary depending on the case. It’s also possible that the prosecutor will request a 72-hour surety hearing.

You’ll have the charges against you read, which you’ll want your lawyer present for.

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