Defenses to Embezzlement
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What Is Embezzlement?
Embezzlement is a type of financial fraud, characterized as a type of white collar crime. Embezzlement occurs when assets, which are entrusted into a person’s care, are misappropriated by that person and used for another purpose. Embezzlement is a crime that can result in financial fines or imprisonment.
What Are Common Defenses to Embezzlement?
Embezzlement is a crime, so all the defenses available for other crimes can be used. Common defenses include:
- Insufficient Evidence: A criminal charge or case can be dismissed if there is insufficient evidence to prosecute. This defense will not work as long as a jury can find you guilty without a reasonable doubt. However, 40% of federal embezzlement cases are dropped because of insufficient evidence, so it can be worth pursuing.
- Duress: Duress occurs when a person truly believes they will be in some danger or harm if they do not commit a crime. Common duress defenses in embezzlement cases that generally do not work include embezzling money to satisfy an addiction or to prevent family hardship. A duress defense will be more likely to work in cases where you would lose your job unless you participated in an embezzlement scheme.
- Entrapment: Entrapment occurs when the government compels an innocent person to commit a crime they would have otherwise not committed. Stings are generally exempt. However, setting up "bait" to get you to commit embezzlement can be entrapment. When bringing an entrapment defense, the prosecution will usually contend you were inclined to commit the offense anyway.
- Absence of Intent to Commit a Crime: Most crimes require an intent to commit the crime. Embezzlement requires that you intended to take money or property from others. Without the required intent, the embezzlement charge may be dismissed. For example, maybe you thought you were the true owner of the money or property that you are accused of embezzling.
- Insanity: Insanity is always a possible defense, but it is a tough sell for most crimes. This defense allows you to claim you were either insane at the time of the offense or during trial. The success rate of an insanity defense is low and it would most likely be ineffective in embezzlement cases.
- Incapacity: This is different from insanity. In embezzlement cases, this defense may work if you can show you were somehow mentally incapacitated at the time of committing the embezzlement. An example would be if you were under heavy medication and did not realize you deposited company money into your own account.
- Intoxication: Voluntary intoxication is almost never a defense to a crime. If you drink voluntarily, you should realize the risks of doing so. This defense rarely comes up in embezzlement case.
What If I Repay or Return What I Embezzled
You might get a lesser sentence because of it, however, this completely depends on the extent of your embezzlement, how much harm it caused, and the manner in which you repaid it.
What If I Honestly Did Not Know It Was Embezzlement?
This may or may not be a possible defense. Ignorance of the law is never a defense. However, if you embezzled funds because you reasonably thought you were entitled to them, this might be a defense. This is a fine line to draw, and your attorney will be able to decide how to handle the situation.
Should I Consult an Attorney for Embezzlement?
If you have been accused or charged with embezzlement, you should seek the advice from a criminal defense attorney. An embezzlement conviction can carry severe financial penalties and possible imprisonment. A criminal defense attorney with experience in white collar crime can help evaluate your case and determine any appropriate defenses.
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Last Modified: 07-14-2014 11:24 AM PDT
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