Theft is one of the oldest recorded crimes in history. For generations, property has been the measure of value, wealth, and favor in society. As such, theft has been criminalized since criminal law was established. The crime of embezzlement covers a type of theft not otherwise actionable under the traditional elements of larceny. To be charged with theft/larceny, you must take the property of another without authority to do so. You could not traditionally be charged with theft, therefore, if you were legally entitled to use the property.
Embezzlement occurs when someone misuses property he or she is otherwise entitled to possess. The most common example of this is using another’s money in an unauthorized manner, i.e., using a company credit card to purchase personal items. Embezzlement is a type of “white collar” crime and often involves related cybercrimes such as wire fraud. At Barnes Law, our experienced Knoxville embezzlement defense attorneys are often asked the following questions about embezzlement in Tennessee.
Why Can’t I Find a Tennessee Embezzlement Statute?
Embezzlement has traditionally been a separate offense from theft in the United States. However, Tennessee has amended its theft laws and now has one general crime of “theft” that encompasses embezzlement, false pretenses, fraudulent conversion, larceny, receiving stolen property and “similar offenses.” The Tennessee Code criminalizes knowingly obtaining or exercising control over property without the owner’s consent and with the intent to deprive the owner of it. The following types of theft are individually criminalized in Tennessee:
- Theft of property, including money,
- Theft of services, i.e., not paying for landscaping,
- Unauthorized recording of movies,
- Bankruptcy fraud,
- Hindering creditors,
- Identity theft, and
- Theft of trade secrets.
While there are additional types of criminal theft, courts in Tennessee call any “unauthorized use” of property “theft” as opposed to “embezzlement.” There is controversy surrounding the criminal definition of “theft” as “embezzlement” in Tennessee; as such, an experienced Tennessee embezzlement defense attorney should review the specific charges and facts of your case.
How Does the Government Prove Embezzlement in Tennessee?
Criminal statutes must be narrowly interpreted. This means the government must prove every necessary element, i.e., every fact, required by the applicable criminal statute. In Tennessee, the government must generally prove that the defendant took or used the property or services:
- with intent to deprive the owner
- without the owner’s consent.
The elements vary based on the type of embezzlement a defendant has been charged with.
The federal government still distinguishes between theft and embezzlement, and it criminalizes different types of embezzlement including:
- Misuse of public funds,
- Misuse of government property,
- Embezzlement by bank employees,
- Embezzlement by trustees of an employee benefit plan,
- Embezzlement of employment and training funds, and
- Embezzlement of healthcare benefit funds.
The federal government must generally prove the same three elements listed above in addition to proving the embezzlement fell under federal jurisdiction, i.e., you misused federally insured funds.
Will I Go to Jail for Embezzlement?
Whether you’re facing prison time for embezzlement depends on a variety of factors including but not limited to:
- the amount embezzled,
- your criminal history,
- the number of offenses charged,
- the level of trust allegedly breached, and
- whether you were involved in a conspiracy.
Accepting a plea deal with federal or state authorities and paying back any money taken may reduce the likelihood you’ll face prison time for embezzlement. Embezzlement of $1,000 or less in Tennessee is a misdemeanor, not a felony. This also reduces the likelihood you’ll face jail time. A valet taking a luxury car for a “joyride” is criminal, but it’s unlikely to result in jail time. However, a healthcare executive who spends 10 years “skimming” money off the top of company purchases may face a prison sentence in addition to certain fines, restitution, and probation.
Do I Have to Pay Back Embezzled Funds?
Yes. If you’re convicted of theft or embezzlement, you’re required to make “restitution” to the victim. This means you’re required to pay back any funds taken, typically with interest. Any restitution will be ordered as part of your sentence, and unlike fines, restitution is often non-optional. The judge will order it even if you don’t have the funds, which means you may have to negotiate a payment plan with the authorities. If the amount taken is unclear, your criminal defense attorney can work with authorities to negotiate fair restitution.
What are the Defenses to Embezzlement Charges?
In Tennessee, there is a defensive statute for those accused of embezzlement. Tennessee Code Section 39-14-107 states that it is an “affirmative defense to prosecution” for theft/embezzlement that you:
- Honestly believed you owned the property or services involved, i.e., you drove away in a red convertible you thought was yours,
- Honestly believed you had the right to use or control the property as you did, i.e., you thought the company credit card could be used for your lunches, or
- You honestly believed the owner would have allowed you to use the property as you did, i.e., you thought your friend wouldn’t mind you borrowing his car even when he claims otherwise.
These defenses, among others, work to defeat the necessary elements of “knowledge” and “intent” required by both federal and state embezzlement statutes. For example, if you thought the property was yours, then you had no “intent” to deprive the owner of it. You also did not “know” that you were taking another’s property. Defeating the “specific intent” elements of the charge is one of the most effective defenses to embezzlement.
Should I Contact an Embezzlement Criminal Defense Attorney?
Yes. Whether you’ve been charged with general theft in Tennessee or federal embezzlement, having an experienced white-collar criminal defense attorney on your side can mean the difference between probation and prison. Further, because Tennessee’s criminal theft statutes are confusingly broad, a Knoxville embezzlement defense attorney may be able to defeat the elements of a Tennessee theft and/or embezzlement charge. To schedule your free, confidential embezzlement defense consultation, call Barnes Law’s Knoxville office today at (865) 805-5703 or contact us online.