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Welcome to Beat the Prosecution with your host Jonathan Catz, a Fairfox Criminal Defense and DWI lawyer. This episode of our podcast is a re-recording of a video from our YouTube channel linked at beat the prosecution.com. For more information, you may contact us at 703-383-1100 or send us an email at info at beatheprosecution.com. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

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Hello, everybody. I'm John Katz. I'm a criminal defense lawyer in Fairfax, Virginia.

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What is petty theft and felony theft?

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In Virginia, the cutoff value for that is $1,000. So theft of anything valued at $1,000 or over, that's felony theft punishable as a felony, carrying up to 20 years in prison. If the value is not proven as $1,000 or more, then that's misdemeanor theft, and that's a class one misdemeanor, which carries zero days to 12 months in jail and a fine of up to $2,500.

SPEAKER_01 1:22

What are the core differences in embezzlement and fraud?

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Embezzlement typically involves employees wrongfully taking property of their employer, but it could also be where you entrust your uh your bank account to someone to write checks for you, and they start writing checks for their own benefit, like to go on vacation to Florida, and fraud. That would involve, for instance, if I say to you, okay, send me a $7,000 check, and I'll send you a rebuilt engine. And if I don't send it to you and never intend to send it to you, that's a type of fraud. And there's another type of theft, which is writing bad checks. That could be by writing a check on your own account when you know there are not sufficient funds there. That's called insufficient funds. And then there's check fraud, getting back to fraud, which involves writing checks on someone else's checking account and forging their signature. It can also involve taking a check that someone writes to you. Let's say they give you a $10 check and you decide just go ahead and add a couple of extra zeros there and change the word 10 to a thousand. I don't know how you're going to do that, but you get the picture.

SPEAKER_01 2:41

How does law enforcement decide to investigate and charge on the previous mentioned crimes?

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Well, let's start with theft. The common ways are you'll have a store owner or other business owner reporting alleged crime to the police. It usually starts that way, and then the police are either going to show up on the scene and find the suspect right there, or maybe the suspect's gotten away or hasn't been found yet, and then the police might do finger printing, or uh let's say someone allegedly uh returns something to the store with a Gucci receipt, but actually it's just a cheap Kmart item, and they might be able to then track you down through the credit card that was used to get the refund, or from the name and address that was put there, or on the video. So those are some of the key ways with embezzlement. We're often going to see the companies are doing their own internal investigation while also checking with the police. Now, a big motivator also for businesses to check with the police isn't just because they don't want the loss, but because they often have insurance to cover against loss, and the insurance companies will require these companies to call the police in order for them to get insurance coverage.

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What are some of the main defenses against theft and embezzlement charges?

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Let's start with theft. Theft means taking property from someone else, never intending to return it, so intending to permanently deprive it from the person without their consent. And a lot of people don't realize that theft is also knowingly possessing stolen property. So let's say Jim goes and steals a pack of gum. Jim now is guilty or responsible for misdemeanor theft. And let's say you know that Jim stole that pack of gum. You saw Jim steal that pack of gum. And Jim takes out a stick of gum from there and hands it to you. Well, now you're guilty of misdemeanor theft just as much as Jim is. And now it's just a matter of degree about punishment. But as far as culpability, as far as being able to be found guilty, just as guilty. So, did we ask about defenses? Is that what you asked me about? Okay, so we got to go to that level. So I was telling you about the definition of theft first before we go into defenses. Well, one fun defense is let's say a cop stops you in a car. The car is reported stolen on the police databanks, and so now you go to trial for car theft. And the owner of the car testifies my white Ford was stolen from me on January 16th, 2020. And the cop testifies on January 20th, 2020, the defendant was driving a white Ford. Aha! They haven't connected together. The witnesses and evidence haven't connected it together that that white car you were driving, that white Ford, is the same as the white Ford that was stolen from Jim's brother, Ben. So there's a defense right there. Is it is the item that you even had or are driving an item that was stolen at all? Is this the proper owner of it? You go to the store, okay? And um, you walk out the store, and there's a claim that you stole the item from the store. But it's not clear whether you got it from the store. Did you get it from a store across the street? Did you get the item today? Did you get it a year ago? Just because you walk out of a store with an item without a receipt, who's to say you got the item from that store? Unless it's so unique that only that particular store sells it. You see where I'm going here? Now with embezzlement. The company might have Joe, who's the vice president, say to Ben, Ben, here's the credit card of the store. Go get us some fancy furnishings. And then Joe is replaced by Steve, who doesn't like all this overspending, and decides to cover himself because he was asleep at the wheel when this happened. And then he says to the cops, okay, this guy who did these purchases, he did this without the company's authorization. Maybe there was corporate authorization. So just because someone is charged with theft, just because someone is charged with embezzlement, doesn't automatically mean they're going to lose. And even if you did break the law, that doesn't automatically mean that someone can prove that against you. How many times have people put them their hands in the cookie jar when told not to, and they never get discovered? Just because you put your hands in the cookie jar doesn't mean you shouldn't defend yourself against theft of a cookie.

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How does having a theft, embezzlement, or fraud charge affect my livelihood in terms of immigration, my job status, and security clearance?

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It's nasty for all of them. Who wants to hire someone who steals? Who wants to hire someone who lies? Someone who steals isn't seen as someone who's being honest. Don't get a theft conviction. So, don't commit theft in the first place or embezzlement in the first place. Don't put yourself in a situation where you'll be wrongfully charged with theft. If Jim wants to go and steal gum, and you know he likes to steal gum or other stuff, don't hang out with Jim. Alright, now one by one, security clearance. The security clearance authorities have a wide range of discretion in granting a security clearance in the first place. So what you want to do with that theft charge is to get it dismissed or not guilty. And if you can't do that, work with your lawyer about possibly negotiating this down to a suspended imposition as sentence, where the case ultimately gets dismissed after maybe amending the charge to trespassing without a conviction. Better than that is to do what's called satisfaction and discharge. If it's a misdemeanor case, you can offer up what's called a lawful bribe, it's called satisfaction or discharge for any amount of money that the alleged victim is willing to take to recommend to the judge to dismiss the case, and then it's up to the judge to dismiss the case or not, and now the case is out of the prosecutor's hands. For immigration, uh immigration looks both at whether a case is a conviction is for a crime of moral turpitude. If the person last lawfully entered the United States less than five years ago, that issue is applicable. And the immigration law also looks at whether this is an aggravated felony, whether the uh sentence was for one year or more. Then we have the petty offense exception, but we can deal with that more at our immigration uh episode in the future. And reputation, who wants to live next door to a thief? What do you think your neighbor's gonna do if they find out you're convicted of theft, especially recently? So, those are some of the risks right there.

SPEAKER_01 10:19

What types of programs and self-improvement can a theft defendant consider?

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Well, the goal is to get your case dismissed or found not guilty. Sometimes, at least with smaller theft cases, the prosecutor andor the business owner for a misdemeanor case with that satisfaction and discharge scenario can be more inclined to agree to ask the judge to dismiss the case if you've done some self-improvement steps, whether or not you committed any theft. So, common things that I recommend to my clients for that would be to do a lot of community service, the magic number being 50 hours, 40 hours at least, volunteer community service. Now, during COVID, a lot of people don't want to be interacting with other people. So I tell my clients about online community service they can do as well. There are shoplifting classes available online. Before COVID, there was a really good one. There was three hours of one-shot deal live, but now they've gone online. If you want to spend a little extra money, you can invest the funds in visiting a psychologist, the type of psychologist who's willing to give a prognosis on your prospects for not committing crimes in the future, especially specifically theft crimes, with or without doing treatment, psychological treatment, or community service or a shoplifting class, and then you can do psychological counseling as well. Now, what are the motivating factors for people to commit theft? Because this relates to the psychological treatment and the psychological prognosis. There would be financial need, not caring at all, things that cause kleptomania, meaning, for instance, feeling unloved, uh going along with the crowd. That's another reason not to go to the seven-level with Jim, because you might feel under peer pressure from Jim to steal a stick of gum or a pack of gum if he's stealing it. So those are some of the self-improvement actions to take, because by doing the self-improvement actions, then I, as your lawyer, can talk to the judge and prosecutor to say this person here who was charged with theft back in August is now a totally different person in December.

SPEAKER_01 12:36

How important is restitution for settling a case?

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So theft is about money loss. And so someone who loses the value of their property, they want either the property back or the value back. And so money talks. This isn't fair for poor defendants. Money often talks in court in this regard. If there's been a big theft charged involving $1,000 in value, a wealthy person can cough up that money and say, tell you what, if you dismiss the case against me, or worse, if you amend this to uh disorderly conduct or trespassing with no active jail and other agreed terms and conditions, I'll pay cash on the barrel head. So restitution is very important often.

SPEAKER_01 13:24

When should I hire a lawyer?

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The sooner the better, because the police and prosecutor aren't waiting for you to get a lawyer for them to be prepared for the case. The alleged victim isn't waiting for you to get a lawyer to do that. The sooner you hire a lawyer, the better.

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Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Cat only provides legal advice to current clients or to individuals who are paid for consultation.com and calling your office at 703831100.