A person commits embezzlement by misapplying or converting funds his control for his own benefit or for the benefit of some other person. A common example is the bank teller who removes funds from the cash drawer for his own use while covering up the removal by altering deposit records to cover the deficient balance amount. Embezzlement requires that the money be entrusted with the person who misused the funds for their own personal gain, and a result causes some harm or loss to the owner of the funds. This crime is commonly seen occurring at banks where a large volume of individuals work in a business whose existence depends on people entrusting funds with the bank. Bank embezzlement is a federal crime when it can be proven:
- That the accused is an employee of the bank, regardless of whether the person is an officer or a teller;
- The bank must be a federally insured bank;
- He accused must willfully misapply or convert the funds of the bank; and
- It must be done with intent to defraud the bank.
If you or someone close to you is accused of embezzlement, contact Miami attorney Ken Swartz at the Swartz Law Firm to schedule an initial consultation.
Embezzlement really is about taking money from a bank by a person who is entrusted to handle or have access to the money. Here’s an example of an embezzler in a private business. An employee is entrusted to handle the funds of a company and has the job of paying the company’s vendors. The employee decides to open a bank account in the name of a fictitious company and then sets up a payable account for that fictitious in the company’s books. Our embezzler then creates fictitious invoices and a fictitious address for that vender to make it appear that goods are being sent and bills sent by the vender need to be paid. The embezzling employee then issues checks to the vendor, which are then retrieved by the embezzler and deposited in an account the embezzler controls.
The crime of embezzlement differs from a general theft offense because the property or money is converted to one’s own use or benefit. Embezzlement still involves a theft, but the entrusted property is converted. A conversion is an act or control over property that interferes with the owner’s rights. In this example, the government gives money to an educational institution without intending to maintain control or supervision over the funds. The funds are then used in a way that was not intended by the government, but this is not conversion. The institution may be liable for failing to returns the funds, but there is no element of conversion or intent to defraud.
A successful defense to embezzlement is seen in the case of a defendant charged with embezzling from an employee pension plan. The employee tried to introduce evidence that the employees were concerned for the welfare of the company and would have approved the use of the contributions to assure the company’s success. The court of appeals found this evidence was relevant because the defendant’s argument that he believed the employees would consent to the use of their funds was probative of his defense and would rebut the “motivated by greed” argument.
Call the Florida Swartz Law Firm to schedule a consultation with a Miami defense attorney who specializes in criminal trial law.