Chapter 13 of Title 18 of the U.S. Code is the main law governing embezzlement and theft. Chapter 13 enumerates the specific acts that constitute the crimes of embezzlement and theft. Embezzlement is an act of misappropriating money or property placed under the individual's care. The severity of penalty, which includes a fine or imprisonment, or both, depends on the value of the property taken by the defendant. While Chapter 13 is the main law governing embezzlement and theft in the United States, the state's penal code contains the specific elements that must be proven in order to convict an individual of such crime. Penal codes impose fines, restitution of the property, or incarceration as punishment for the crime.
Embezzlement is a tricky crime as it is often closely similar with other property crimes. The only difference would be in certain elements. Take for example the crime of larceny. Embezzlement requires that the defendant must have been entrusted with the property of the victim while larceny does not require that the property has been entrusted to the defendant. Another example would be fraud. In the case of fraud, a person obtains ownership of a property through misrepresentations. In contrast, in the case of embezzlement, the defendant does not gain ownership of the property.
Because of the similarities of crimes, one of the issues arising from embezzlement cases is false accusation by the state, being the prosecutor. What the defense counsel can do is to counter that his client has been accused of the wrong crime because the state has not proven certain or several elements that would make the offense a crime. In an embezzlement case, the prosecutor needs to prove that the defendant converted the property that was entrusted to him by the victim. The term "convert" means to deal with the property in a way that is inconsistent with the arrangement between the defendant and the victim. The arrangement between a defendant and victim can be the key to acquittal, thus the accused must make sure he or she retains all forms of contracts with the victims to disprove the prosecutor. The defense counsel can also counter that his client never converted the property, but rather transferred the property to another account, in the case of fund managers, for the property to increase in value. The defendant's role within a company is a determining factor of whether he or she committed embezzlement or larceny. If the defendant is a director of the company, then the victim's property has been entrusted to him. The defense counsel can counter this by proving that the defendant's role in the company does not require him to take control of the property.
One of the things an attorney can do to prevent conviction is to prove that the defendant has no fraudulent intent. If the defendant genuinely believes he is the owner of the property, then he cannot be found guilty of embezzlement. Moreover, the defendant cannot also be found guilty of embezzlement if he took the property by mistake. Hiring a counsel is crucial to the acquittal of a person accused of embezzlement as an attorney is knowledgeable on the elements of the crime that can be disproved.