Federal court determines an estimation of loss in an embezzlement case by determining the fair market value of property that was unlawfully taken, copied, or destroyed. If the fair market value is unrealistic to determine or inadequately measures the harm, the cost to the victim of replacing that property is the figure used.
For example, in a case of proprietary information that was stolen including trade secrets, the judge uses the cost of developing that information, or the reduction in the value of that information that resulted from the offense to estimate the loss. Another appropriate measure is the cost of repairs to a damaged property as a result of the offense.
To learn more or discuss how what losses may be calculated in your case, consult with a DC Federal embezzlement lawyer today.
In order to get an estimation of the loss the court only needs to make a reasonable estimate of the losses. The sentencing judge is in a unique position to assess the evidence and estimate the loss.
Additionally, if a pecuniary harm cannot be accurately determined, the judge can rely on this authority to estimate the loss as opposed to determining an exact figure. As long as the judge reaches a reasonable estimate of loss, that decision tends to be protected on appeal.
According to the guidelines, loss shall not include interest of any kind, finance charges, late fees and penalties, amounts based on an agreed upon return or rate of return, or other similar costs. Also excluded are the costs to the government and costs incurred by victims primarily to aid the government in the prosecution and criminal investigation of an offense. With respect to loss, you cannot be held responsible for the costs of the government in prosecuting the case.
A judge can use standard measures of value. The fair market value can be determined by whatever is appropriate in that industry to measure such value. For example, if the embezzlement involved real estate, it could involve the tax assessment values or the fair market values of those pieces of real estate.
For types of offenses where other categories of goods are stolen or embezzled, you could possibly use the industry standard to determine the market value of those products.
In an embezzlement case, actual loss is the reasonably foreseeable pecuniary harm that resulted from the offense. Intended loss is the pecuniary harm the defendant purposely sought to inflict and includes intended pecuniary harm that would have been impossible or unlikely to occur.
When the judge makes the determination on what the appropriate loss amount is in a case, they take the greater of those two figures.
The estimation of loss is based on certain delineated factors which include the fair market value of certain property, the value of proprietary information including trade secrets, the cost of repairs, and the number of victims multiplied by the average loss to each victim.
For each of these factors that might be applicable to a particular case, the defendant’s attorney can make arguments that tend to mitigate the ultimate loss amount outcome of the case, the impact of which is to lower the guideline range and lower the sentence faced by the defendant. It becomes a matter of influencing the judge’s estimations by credibly demonstrating a different narrative of the loss not highlighted by the government.