When charged with fraud or embezzlement, immediately contact an experienced criminal defense attorney who has successfully defended similar charges. Until you secure an attorney, you are vulnerable. Even the most inconsequential statement can be inflated by the prosecution and used against you in court. An attorney is your safeguard against attacks on your freedom, your character, and your rights. Once you retain an experienced criminal defense attorney, he or she can begin to investigate the specifics of the embezzlement or fraud case against you and begin to develop your defense.
Bay Area criminal defense attorney Seth P. Chazin explains the steps of the legal process, what is required of you and the potential outcomes of the case -- all in plain English, eliminating the confusion that accompanies the legal jargon.
Bay Area White Collar Crimes
Embezzlement is a form of financial fraud that encompasses a variety of offenses, including employee embezzlement, mail or wire fraud, consumer fraud, accounting fraud, computer fraud, money laundering and bank or mortgage fraud.
A fraud or embezzlement accusation can be extremely damaging to a career that took a lifetime to build. It is nothing short of devastating to see the credibility and reputation you have established crumble beneath your feet. If convicted, there may be irreparable damage to your career. The specter of the conviction will follow you as you begin rebuilding your professional reputation. Criminal defense attorney Seth P. Chazin is ready to put his 30 years of experience to work for you, working tirelessly in the effort to clear your name.
Seth P. Chazin has represented many clients facing accusations of fraud or embezzlement. Call his San Francisco Bay Area law office at 415-222-6188 or 1-800-499-9902 to schedule a free, confidential consultation. Telephones are answered 24 hours a day, seven days a week.
Defenses to Fraud or Embezzlement
There are a number of viable defenses to a charge of fraud or embezzlement under California Penal Code 503. The following defenses are archetypal in nature, and the actual defense strategy cultivated by your criminal defense attorney will depend on the exact circumstance of your case.
In an embezzlement or fraud case, there are four elements the prosecution must establish in order to win a conviction. A strong defense will exploit the weaknesses in the prosecutor's case. If the defense can generate reasonable doubt by refuting or poking holes in the prosecution's argument, then the defense will prevail and the defendant will not be convicted of embezzlement. The four elements of embezzlement that must be satisfied by the prosecution are:
- The defendant was in a position of authority that would have enabled him or her to commit the fraud or embezzlement.
- There is evidence that the defendant took, kept, hid or used the money or asset without the knowledge or permission of its rightful owner.
- The defendant used the embezzled property for his or her own benefit.
- It was the defendant's intent to permanently deprive another person or entity of the embezzled funds and/or asset.
The goal of the defense is to dismantle any or all of these elements, in whole or in part. In doing so, it stands to raise doubt in the minds of jurors, bringing the defendant a step closer to a potential dismissal or acquittal at trial.
Absence of Intent to Commit a Crime
This defense challenges the fourth element required to establish embezzlement under Penal Code §§ 484, 503. This is the most straightforward defense to embezzlement possible, but it is not available in every case.
Criminal intent can be very difficult for the prosecution to prove, giving the defense attorney room to argue that the defendant acted without criminal intent.
If, for example, the prosecution's entire case hinges on the content of an email written by the defendant, which may or may not be loosely construed as an intent to embezzle -- the court may throw the case out or the jury may acquit the defendant.
In cases of federal embezzlement, almost 40% of cases are dropped due to a lack of compelling evidence. Any criminal case can be dismissed due to a lack of evidence. What exactly constitutes "insufficiency" where evidence is concerned is not entirely objective; it can often depend on the judge, the jury and the nature of the alleged crime.
For example, if there has been a wrongful accusation made against an innocent person, the lawyer can present evidence to the judge and jury that the client was not, in fact, the party that embezzled property -- even if the property was in fact embezzled. The attorney needs to prove only that the client is innocent of having done so; they do not need to disprove the fact that embezzlement occurred.
Good Faith Belief or Money Taken For Legitimate Purposes
If it can be shown that the defendant believed in good faith (meaning genuinely and honestly) that he or she was not committing fraud or embezzlement, this can be a defense to the charges. If the defense can present a compelling argument explaining how and why the defendant thought the embezzlement was actually legal, rightful and servicing legitimate business purposes, this can be a successful embezzlement defense. This issue can be deemed to go to a lack of intent mentioned above.
If someone used threats or violence to force the defendant to act against his or her better judgment at the time the embezzlement was committed, the jury may not find the defendant guilty of the crime because of the circumstances that forced him or her to commit it. It should be noted that common "pressures" do not amount to duress.
If the defendant embezzled because he or she needed to pay bills and provide for a family, this would not constitute duress.
Expiration of the Limitation Period
California limits the amount of time that the prosecution has to file a charge of fraud or embezzlement. Even if it is a rightful case with compelling evidence, the defendant accused of the crime can make a motion to have the case dismissed, citing expiration of the limitation period.
It must be noted that if the embezzlement or fraud was concealed in any way, the period during which it was concealed does not ultimately count toward the limitation period. The fixed amount of time given to bring the claim forward begins after the embezzlement or fraud has been discovered. If the accused actively took measures to hide the embezzlement, this is considered concealment.
If the embezzlement is ongoing, the period to file a claim begins after the last embezzlement-related action. If the embezzlement or fraud is no longer actively concealed but still goes undiscovered, the period to file begins the moment the fraud is discovered.
Generally, the period of limitation to file a charge of fraud or embezzlement of private funds is 4 years. This limitation period begins either when the embezzlement is discovered or completed, whichever is later. For embezzlement of public (government) funds, there is no limitation period. A claim can be commenced at any time.
Disproving the Fiduciary Relationship
This may be difficult, but the defense attorney can establish that there was no fiduciary relationship of reliance or trust between the victim of embezzlement and the accused. California courts have ruled that creditor/debtor and employer/employee relationships are not presumed to be ﬁduciary relationships in the absence of other evidence of trust or conﬁdence.
Will it Help My Case If I Return the Embezzled Asset?
There is a chance that returning embezzled assets could prevent charges from being filed or at least mitigate the penalties in a proven embezzlement case. If there was an intent all along to return the embezzled asset, then there may be a defense to the charges or it may be possible to mitigate a potential charge of embezzlement.
Contact an Experienced, Aggressive Embezzlement Defense Attorney in San Francisco Today
San Francisco embezzlement and fraud attorney Seth P. Chazin will conduct a thorough investigation of the allegations against you, identifying evidence that could potentially exonerate you. Attorney Seth P. Chazin understands the ramifications of a conviction and how it can potentially devastate your life. Having defended thousands of clients over a 30-year legal career, Seth P. Chazin knows what is at stake and fights for your rights and freedom.
If you have been charged with embezzlement or fraud in the Bay Area, do not hesitate to contact the Law Offices of Seth P. Chazin immediately for a free consultation.