Another factor that will be taken into consideration by a judge during sentencing in a federal embezzlement case is the amount of money that was taken and the way in which it was taken. Rarely is someone charged with just the act of embezzlement. Instead, often the individual will also be charged with theft, which in certain cases will be punishable with more than five years’ incarceration, which is the maximum incarceration penalty for embezzlement. The judge will look at the amount as the most significant factor in deciding what to do with the individual in sentencing.
Embezzlement is punishable with incarceration for five years, whereas theft of substantial amounts of money can be punishable with more than double that time. In addition to a five-year sentence, the defendant could face harsher sentences for the other charges and those sentences could be consecutive.
Actual loss in Maryland embezzlement is the amount of loss that actually took place. For example, if someone gives himself an extra paycheck monthly over a two-year period, the actual loss would be the amount of the paycheck multiplied by 24. Intended loss is the anticipated loss because of that. An example of intended loss is the speculated amount of money that a business will lose as the result of an employee embezzling money from the client and the client opting not to do business with that company.
It is difficult to determine how actual and intended loss impact Maryland embezzlement laws. Judges will award the victim and require payment to the victim when the loss is an actual loss. Speculative loss is more difficult to quantify for the purposes of repayment, but it is given consideration.
Most Maryland judges are hesitant to impose penalties or require individuals to pay anything above actual loss because there is no way to determine whether or not the client would have ended the business relationship for another reason or whether the client would have remained in business. In that case, it creates a windfall for the victim and it is not the role of the criminal court to create windfalls or provide monetary awards to victims. That is a matter for civil courts.
An estimation of loss is the precise amount of money that is presumed to have been lost by the defendant’s breach of the fiduciary trust.
Estimation of loss is not a matter that is determined by the court; usually, the prosecutor provides that information after talking to the alleged victim to determine the amount of the loss. Hearsay can also be used to determine loss in embezzlement cases, but it is not sufficient alone to establish loss.
In a trial, any document has to be authenticated by the author. In sentencing, however, a judge can consider anything including documents, letters, and anything else that she or he believes to be true.
An attorney is helpful during sentencing because she or he could challenge the estimation of loss, which is, ultimately, the amount of the defendant’s restitution, if repayment is possible. Occasionally, a victim, not necessarily intentionally, provides numbers of estimated loss that are inaccurate, however, a lawyer will be thorough to ensure that any restitution or repayment is specific and verified.
Fair market value generally applies to property and is the value of an item that is voluntarily sold by the owner. If property has been embezzled, its actual fair market value is the replacement cost at the time that it was taken. A judge may use that value to determine the actual loss when property has been embezzled.
Anything that cannot be verified or that lacks documentation will be excluded from market value losses in embezzlement cases.
A person that is charged with embezzlement in Maryland should contact a local attorney because if they call an attorney that does not know the area and/or does not practice this type of law, they are going through a proverbial minefield without proper guidance. Only an attorney that knows the ins and outs of the Maryland judicial system, knows the judges, and has dealt with this type of offense will be able to truly assist the person. It is important to know which defenses to raise, the dispositions of the judges and prosecutors, and the best possible outcome based on the judge and the prosecutor.
Additionally, the biggest priority in an embezzlement case when there has been a loss in Maryland embezzlement is to make the victim whole again. If there is any chance of the victim being repaid, an attorney’s strategy is to focus on that angle.
As an example, a person may be charged with theft of properly from their employer during a two-year period. If the total value of the property that was taken was about $235,00, the victim may be repaid about $170,000 via insurance so the out-of-pocket loss that had to be repaid by the defendant is $50,000, which they may or may not be able to pay. An attorney can advise the defendant, though, to get a good-paying job prior to sentencing, which can then be shown to the judge as a reason to not put the person in jail, but rather let them keep working and over the course of time, pay back the money lost.