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Embezzlement and the Misbehaving Employer

Often, in the course of handling as many Embezzlement cases as I do, my Client will tell me about some kind of shenanigans engaged in by the former employer. Most often, this is raised in the hope that, if brought up, the employer will “drop” the case, or it can be used as some kind of “bargaining chip.”

It doesn’t work that way. If you’re facing an Embezzlement charge, nothing your former employer ever did really matters at all, unless it involves framing you.

The path to an Embezzlement charge is a bit longer than in most Criminal cases. If you’re pulled over for a DUI, the time from your first Police contact to formal Arrest is usually measured in minutes. The same holds true for any kind of Drug charge, or Suspended License charge.

It’s different with Embezzlement. Most of the time, a person is contacted by the Police or someone from the former employer (like Loss Prevention) and is asked to make a statement, or to answer a few questions. Whether or not that happens, a number of weeks will pass before that first contact ever evolves into an actual Criminal charge. In the meantime, the person who will eventually face the charge has a million things go through their minds. Inevitably, those thoughts turn to anything they can find that the former employer has done wrong. The hope, of course, is that this can be used as some kind of leverage to make the case somehow go away.

In some cases, the person facing the Embezzlement charge may have very direct knowledge of certain financial or tax irregularities committed by the former employer. In the real world, this isn’t all that uncommon. And in the real world, once the Police begin to investigate an embezzlement charge, bringing up that the former employer did this or did that is beyond useless. It is NEVER becomes any kind of bargaining chip. In fact, once the Police have the case, the decision about whether to go forward and bring charges against the former employee is really up to the Prosecutor, and that decision is based solely upon showing that the former employee stole goods or money. Once the Police begin inquiring and asking questions, it’s way to late to start “blowing the whistle.”

This holds true even if the former employer regularly did something like “cook the books.” To put it another way, the ONLY defense to a charge of Embezzlement is that a person did NOT embezzle. If someone worked for the XYZ Products company, and diverted some money or merchandise, and then gets found out, once the Police are involved, it doesn’t matter if XYZ has a mail-order heroin business on the side. Even if a person could interest the Police in that case, it wouldn’t make the charge against them go away.

It’s natural, of course, to wonder if a complaining former employer’s dirty tricks can be used to minimize or negate any part of an Embezzlement charges. And while it’s a simple and sensible question, the answer is likewise simple, albeit disappointing. Nothing the former employer may have done (or not done, in a case where it’s alleged that the former employer did not, for example, report all of its income to the IRS) affects the allegations against the person suspected of Embezzlement.

Consider this example: Suppose that Smith and Jones are neighbors. Assume that Jones steals things from Smith’s backyard when Smith is away. Smith then sets up a video camera, and sure enough, it captures Jones jumping the fence and taking some of Smith’s belongings. Angry, Smith confronts Jones outside, in the front yard, and an argument ensues. Jones denies wrongdoing, calls Smith a filthy liar, and Smith winds up punching him in the mouth, right in front of a block full of watching neighbors. The Police are called, and it’s clear that Smith punched Jones first, and not in self-defense, either. Smith is Arrested and charged with Assault and Battery. As Smith meets with his Lawyer, he claims that Jones is a thief, and that he has video to prove it. In fact, Smith is right; he can prove it.

So What Value is That in Defense of His Charge of Assault and Battery Against Jones?

None. The charge of Assault and Battery is based ONLY on the Smith hitting Jones. If the Police have any interest in Jones’ stealing from Smith, then that’s a separate matter. Theoretically, the Police could decide to charge Jones for his stealing (Larceny), but it would result in a separate case, and could not be used as any kind of defense to the Assault and Battery charge that Smith faces for hitting Jones, even though Smith was understandable mad. Surely you’ve heard the saying that “Two wrongs don’t make a right.”

Ditto in Embezzlement cases. In the real world, nothing ever comes of any allegations made by the accused former employee. The Police have virtually no interest in such things. Of all the countless cases I’ve handled, enough hot air has been exhausted on the topic to sail a hot-air balloon around the world, but nothing, and I mean nothing, has ever come of it.

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