Embezzlement Defense

Since January 1, 1999, Michigan has defined four levels of Embezzlement with the following penalties.

  1. under $200: Misdemeanor -- up to 93 days and/or $500, or 3 times amount embezzled, whichever is greater
  2. at least $200 but less than $1,000 (or repeat offender of above): Misdemeanor -- up to 1 year and/or $2,000, or 3 times amount embezzled, whichever is greater
  3. at least $1,000 but less than $20,000 (or repeat offender of above): Felony -- up to 5 years and/or $10,000, or 3 times amount embezzled, whichever is greater
  4. $20,000 or more (or repeat offender of above): Felony -- up to 10 years and/or $15,000, or 3 times amount embezzled, whichever is greater

This crime essentially involves a violation of trust. That is, the agent (e.g., employee) is entrusted with the principal's (e.g., employer‘s) property. The employee acquires the employer’s property through that relationship of trust, and then dishonestly “disposes” of the property to his own use and benefit.

The Michigan statute defining embezzlement is as follows:

MCL 750.174 Embezzlement by agent, servant or employee, or trustee, bailee or custodian; penalty; prima facie proof of intent; enhanced sentence based on prior convictions.

(1) A person who as the agent, servant, or employee of another person, governmental entity within this state, or other legal entity or who as the trustee, bailee, or custodian of the property of another person, governmental entity within this state, or other legal entity fraudulently disposes of or converts to his or her own use, or takes or secretes with the intent to convert to his or her own use without the consent of his or her principal, any money or other personal property of his or her principal that has come to that person's possession or that is under his or her charge or control by virtue of his or her being an agent, servant, employee, trustee, bailee, or custodian, is guilty of embezzlement.

(2) If the money or personal property embezzled has a value of less than $200.00, the person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or 3 times the value of the money or property embezzled, whichever is greater, or both imprisonment and a fine.

(3) If any of the following apply, the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3 times the value of the money or property embezzled, whichever is greater, or both imprisonment and a fine:

  1. The money or personal property embezzled has a value of $200.00 or more but less than $1,000.00.
  2. The person violates subsection (2) and has 1 or more prior convictions for committing or attempting to commit an offense under this section or a local ordinance substantially corresponding to this section.

(4) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the money or property embezzled, whichever is greater, or both imprisonment and a fine:

  1. The money or personal property embezzled has a value of $1,000.00 or more but less than $20,000.00.
  2. The person violates subsection (3)(a) and has 1 or more prior convictions for committing or attempting to commit an offense under this section. For purposes of this subdivision, however, a prior conviction does not include a conviction for a violation or attempted violation of subsection (2) or (3)(b).

(5) If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $15,000.00 or 3 times the value of the money or property embezzled, whichever is greater, or both imprisonment and a fine:

  1. The money or personal property embezzled has a value of $20,000.00 or more.
  2. The person violates subsection (4)(a) and has 2 or more prior convictions for committing or attempting to commit an offense under this section. For purposes of this subdivision, however, a prior conviction does not include a conviction for a violation or attempted violation of subsection (2) or (3)(b).

(6) Except as otherwise provided in this subsection, the values of money or personal property embezzled in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total value of money or personal property embezzled. If the scheme or course of conduct is directed against only 1 person, governmental entity within this state, or other legal entity, no time limit applies to aggregation under this subsection.

(7) If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant's prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:

  1. A copy of the judgment of conviction.
  2. A transcript of a prior trial, plea-taking, or sentencing.
  3. Information contained in a presentence report.
  4. The defendant's statement.

(8) In a prosecution under this section, the failure, neglect, or refusal of the agent, servant, employee, trustee, bailee, or custodian to pay, deliver, or refund to his or her principal the money or property entrusted to his or her care upon demand is prima facie proof of intent to embezzle.

(9) If the sentence for a conviction under this section is enhanced by 1 or more prior convictions, those prior convictions shall not be used to further enhance the sentence for the conviction pursuant to section 10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.

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