Sunday, April 22, 2012

Embezzlement Cases On Rise In California As Economy Is In Decline -- Will I Have To Go To Jail For Embezzlement?


I was in Los Angeles County Superior Court this week on a relatively small embezzlement case (under $5,000).  The judge remarked that he had over 20 embezzlement cases in his courtroom alone that week and his is not a settlement or early disposition court.  The economic pressures have made these cases more common even though embezzlement is more complex than the economy since there often can be an addictive component to the behavior.

In some other cases the past, the embezzlement was discovered and we were able to work out civil settlement agreements with the employer without any criminal action. In many cases, the client faces both the criminal and the civil case.  Some companies file civil cases so they can be in control of the litigation which they do not have in criminal cases.

In the small amount case this week, the client discovered the case when he was was contacted by a LAPD detective for an interview. I intervened and refused to let him be interviewed.  The detective shared the documentation against him and informed me that he had already decided to charge him. I arranged a self surrender and bail. The case against him was well documented and the client was very remorseful. There was an offer of no jail time if restitution was paid in full.  

In contrast, in downtown Los Angeles last week, I saw a plea and sentence on April 18 in Division 50 (the early disposition state court) by a woman who admitted to embezzling more than $4.6 million from 17 different companies from 2003 to 2009. She did not have a plea agreement with the D.A.'s Office but instead "plead open" to 17 counts of grand theft and Judge Horowitz sentenced her to 5 years in state prison. One interesting thing about this case was that she was not charged until April 4, 2012 -- which was over 3 years after she left the company and the charges related back to 2003.

I also did a consultation last week on another embezzlement case where the loss was over $200,000 and a civil case has been filed before the criminal case. Strategies considered included whether to stay the civil case, settle the civil case and seek cooperation if any criminal reporting has been done, and how to handle the client's inability to pay significant restitution. 

In some cases, we are able to use our expertise and show that there was no embezzlement or that the amounts are greatly overstated. For example, if the claim is that the client abused his or her expense account or was reimbursed for expenses that are now claimed to be unauthorized -- it is not a simple taking case.

In other cases, the evidence is overwhelming and the taking involves falsification of expenses, checks and the client has already confessed to his or her former employer or law enforcement. In those cases, a common question is "will I have to go to county jail or state prison?" There is no one answer to this question but it depends on a number of factors. 

Ten common factors include: (1) criminal history, (2) facts and how easy the case is to prove and whether there are any viable defenses, (3) ability to pay restitution including borrowing money or selling assets to do so, (4) venue or where the case is filed -- Los Angeles downtown can be very different from other parts of Los Angeles County or from Ventura or Orange Counties, (5) the victim's agreement to prefer no jail so restitution can be paid, (6) other factors like mental health, addiction, and family issues, (7) the effect the loss had on the victim, (8) the role the person had in the victim's company and life, (9) whether the client is able to work and pay a significant percentage of earnings to restitution in lieu of custody, and (10) other mitigating or favorable facts that can be developed. 

Each case is different and working up the facts and mitigating circumstances can go a long way in reducing the risk of custody time. However, courts are getting tougher on sentencing for all white collar crimes, including embezzlement. Restitution is king and can make all the difference in the case. I have structured many different ways and the only limitation is our own creativity and willingness to do everything we can to get the best result possible. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments  should be directed to Tracy Green, a very experienced criminal defense attorney and civil attorney who understands and is adept at the interplay between the two. The firm focuses its practice on the representation of businesses and licensed professionals, individuals and businesses in civil, administrative and criminal proceedings. Their website is: http://www.greenassoc.com/

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