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Embezzlement

Embezzlement

The white collar federal criminal defense attorneys at The Henry Law Firm PLLC dedicate themselves to vigorously fighting to protect clients facing an embezzlement investigation or actual embezzlement charges. A federal embezzlement charge may arise from misappropriating funds from an agency, department or subdivision of the federal government or other governmental entity that receives federal funding. Embezzlement is a very serious crime punishable by lengthy periods of incarceration in the Federal Bureau of Prisons, followed by a period of supervised release, and accompanied by exorbitant fines, as well as restitution.

Several federal statutes criminalize embezzlement. The list of embezzlement crimes is quite extensive, the bulk of which are found in Title 18 of the United States Code as well as in other statutes. For example, 18 USC §666 criminalizes embezzlement of property worth $5,000 or more by an agent of a governmental entity or agency receiving federal funds. An agent is a person who is “authorized to act on behalf of another person or government, and in the case of an organization or the government, includes a servant or employee, and a partner, director, officer, manager, and representative.” To be a federal crime, the governmental agency must have received $10,000 or more of federal funds during the previous year. Additional examples of embezzlement include 18 USC §1033 which criminalizes embezzlement by an agent of an insurance brokerage and 18 USC §656 which seeks to punish agents of a federally insured bank who embezzle funds.

Federal courts define embezzlement as “the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” Federal law does not define “entrusted” property. Rather, federal courts look to state law to determine whether a person holds property “in trust.” A person could not be guilty of embezzlement if he were not “entrusted” with the property. Embezzlement is a specific intent crime. In other words, to be guilty of embezzlement, the person must have formed the intent to deprive the beneficiary of the property the right to the property.

The crime of embezzlement is complete when the person misappropriates the property entrusted to them. Federal courts, including the Second Circuit in New York, have ruled that an intention to reimburse the beneficiary is not a defense to embezzlement. Therefore, a person charged with embezzlement may not present evidence at a trial of an intention to pay restitution to the victim. In fact, another federal court had previously ruled that the fact that restitution was made, and the beneficiary made whole is not relevant at trial for embezzlement because the crime is complete when the misappropriation was made. A conviction for embezzlement does not require proof of the person’s intent permanently to deprive the owner of the use of the property as does larceny or theft.

Punishment for embezzlement includes incarceration, supervised release, fines and restitution. According to the federal sentencing guidelines, embezzlement is a level 6 or 7 crime, depending upon the specific allegations. The guidelines start at zero to six months incarceration for a person with no prior criminal history. Aggravating factors such as the value of the property embezzled, the number of victims, and criminal history if any are added to the equation to determine the length of incarceration, which could last up to 20 years.

Call The Henry Law Firm PLLC immediately at 646-820-0224 if you are facing federal embezzlement charges or are the subject of a grand jury investigation in New York, or anywhere in the United States. Delaying will hurt your chances of mounting a successful defense. Let the innovative federal criminal defense attorneys at The Henry Law Firm PLLC provide you with the defense you deserve.

Sources:

18 USC §§641-670

US v. Lequire, 672 F. 3d 724 – Court of Appeals, 9th Circuit 2012

US v. Thomas, Dist. Court, D. Connecticut 2013

US v. Thomas, Court of Appeals, 2nd Circuit 2014

US v. Roebuck, Dist. Court, D. Vermont 2012

http://www.ussc.gov/guidelines/2015-guidelines-manual/archive/2011-2b11

 

Can I Plead the Fifth in a Company Internal Investigation?

You probably already understand that only a state, local, or federal prosecutor can bring criminal charges against you, and that your employer’s attorneys or outside law firm may have the power to discipline you in the form of suspension or termination, but they cannot put you in jail. But what your employer’s lawyers can do is to report information about you – including statements you have made and your work emails and other records – to the government, which can then use that information in any way it pleases, including in preparing civil actions and/or criminal charges against you. Which raises the question of whether it is appropriate for an employee, manager, director, officer, or other individual to raise the protections of the Fifth Amendment in an internal investigation conducted by a business entity.

Why Companies Report Misconduct to the Government

It may seem counterintuitive that your employer would self-report incriminating information relating to its employees’ work on their behalf – as companies are often but not always liable for the acts of employees within the scope of employment – but such is the nature of white collar civil and criminal investigations in recent decades.

More and more, state and federal investigators incentivize companies to self-report wrongdoing by employees. Common ways in which this occurs is that prosecutors and companies will reach a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA), by which the company will avoid prosecution itself by agreeing to undertake other actions, such as paying fines, instituting new procedures, and/or taking actions against individuals in the company perceived to be problematic. This is generally only done when the company makes efforts to self-report, e.g. handing over the findings of an internal investigation.

This of course can be a relatively good outcome for the company, but not for the individuals who are on the receiving end of the company’s internal actions. Furthermore, the government may bring civil and/or criminal proceedings against the individuals based on information provided by the company.

You Are Not Obligated to Incriminate Yourself

The Fifth Amendment protection against self-incrimination applies only to the government and its agents, meaning that it would only make sense for an individual to invoke his or her Fifth Amendment rights when being questioned by an agent of a state, local, or federal government.

That said, you are never obligated to respond to questions from private parties, including your supervisor, HR department, in-house counsel, or an outside law firm conducting an internal investigation. Of course, your employer is, in many cases, not obligated to continue employing if you refuse to participate in an internal investigation related to your conduct at work.

Thus, rather than invoking your Fifth Amendment right in an internal investigation where you have reason to believe negative consequences might flow from what you say, a more appropriate action is to work with an experienced white collar defense attorney who can assess your situation and help you strategize what your best options are in light of your circumstances. Those options might range from simply providing your employer with all information requested to being represented by an attorney during all questioning, and so on, but only a white collar attorney that represents you can provide you with that guidance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

What Does it Mean to Have “Constructive Possession” of a Firearm in New York?

Although we often hear about a lack of gun control in the U.S., federal agents arrest around 7,000 individuals for firearms violations every year, and many more arrests are made at the state level. While the Second Amendment and current federal regulations do allow for legal ownership of a wide variety of firearms, you can face stiff criminal penalties if arrested for possession of an illegal weapon. Furthermore, felony convicts and others who have had their gun ownership rights revoked also face arrest, which are among the most common type of federal firearms. States and localities such as New York do go further than federal law in regulating firearms, requiring permits for pistol ownership and outlawing assault rifles. But what does it mean to have possession of a firearm in New York? Under the concept of “constructive possession,” defendants in firearms crime cases face legal challenges in asserting their criminal defense in New York.

Possession and Constructive Possession Defined

First off, it should be understood that possession is not the same as ownership. If you are holding a firearm, you are possessing it, regardless of whether someone loaned it to you even for a brief moment, you are transferring it to someone else, or you simply found it.

Constructive possession takes the concept of possession a step further. It says that a person can be considered to have possessed a firearm – and thus run afoul of any relevant firearm laws – even if the firearm was not literally in their possession. Specifically, New York courts have held that: a defendant has property in his or her constructive possession when that defendant:

  • exercises a level of control over the area in which the property is found, OR
  • exercises control over the person from whom the property is seized, AND
  • this control was sufficient to give the defendant the ability to use or dispose of the property

New York legal authorities have also said that two people can both have constructive possession over contraband when: “they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found.”

Defending Against Constructive Possession Charges

Taking the above definition, this means that prosecutors can bring charges for illegal possession of a firearm when the defendant is not literally possessing the firearm on his body or in his personal belongings, but where a gun is simply found on a person over whom he has control (e.g. a spouse, a child, a subordinate, etc.) or in property he possesses, such as a shared home, vehicle, or business.

That said, it is important to remember that prosecutors must prove every element of a firearms charge beyond a reasonable doubt, and an experienced criminal defense attorney can cast doubt and present contrary arguments against the prosecutor’s allegations.

Such defenses can take any number of specific forms, but might include questioning whether a defendant did in fact have control over the person or the property on which the firearm was found or whether the defendant was even aware of the presence of the firearm. Talk to an experienced criminal defense attorney about the best defense in your particular circumstance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

Are There Legal Defenses to Extortion/Blackmail?

Extortion and blackmail crimes both involve threats made against another person to do violence to that person or their property – which can include publicizing facts about that person to damage his or her reputation – for the purpose of extracting money or other property from the person. Under both state and federal law, an extortion conviction is a felony that can mean many years in prison, fines, as well as a ruined personal and professional reputation. But sometimes people are investigated and/or charged with extortion based on exaggerations or statements taken out of context. If you are under investigation for extortion, it is important to obtain experienced legal counsel to present your best defenses to the potential charges.

Lack of Evidence to Support an Extortion Charge

Extortion statutes may vary across states and at the federal level, but in general they require that the defendant have knowingly made a threat to damage the person, property, or reputation of a victim with the purpose of obtaining money or other property from the victim.

When a disagreement between parties gets out of control, an extortion or blackmail allegation may arise based on what has actually just heated negotiations and discussions which should not be taken literally or which were not based on an actual intent to threaten another person. Your defense attorney can assess all of the available evidence for relevance and strength and cast doubt on the prosecutor’s allegations in this regard, as the prosecutor is required to prove your intent beyond a reasonable doubt.

Lack of Admissible Evidence

Even where evidence may support elements of an extortion or blackmail charge, that evidence can only be used against you where it is admissible based on being legally obtained by police and other government agents.

If evidence was obtained through illegal means – including custodial interrogations that did not include Miranda warnings, detainments not supported by reasonable suspicion, questionings that did not honor your right to counsel, searches not conducted via a warrant or a warrant exception – your attorney can successfully argue that such evidence should not presented to a jury and that charges should be dismissed.

Attempted Extortion or Conspiracy to Commit Extortion

When no money or property was actually obtained in response to an alleged extortion threat, prosecutors may still try to bring charges based on an attempt to extort or even a conspiracy (agreement) to commit conspiracy. In such cases, your attorney can argue that you did not have the requisite intent for either an attempt or conspiracy and/or that no significant steps were actually taken in furtherance of committing extortion.

Other Defenses to Extortion

Other defenses that your attorney may raise to an extortion charge could include:

  • You performed illegal acts under duress
  • You were voluntarily or involuntarily intoxicated at the time, negating the mental intent
  • You otherwise lacked the mental capacity to commit extortion

Speak to an experienced defense attorney at the first sign of an extortion investigation to begin mounting your best defense to all potential charges.

Contact a New York Extortion Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

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