Police Not Helpful In Pursuing Conviction

My question involves criminal law for the state of: CA

We are a company that had a former employee steal about 63K in funds by purposefully re-applying for reimbursements twice for the same items, on one occassion, three times and applying for reimbursements that were from invoices the former employee never paid.

The detective investigating said that we must prove that the former employee had intent to steal, as well as the theft. We have absolute proof funds (and duplicate funds, if you will) were deposited to the former employee's bank account and corresponding paperwork the former employee submitted. My question is why do we have to prove intent? Is it not enough that we prove this person received the illicit funds?:wallbang:

Have you sued the employee for the monies yet?

Not yet, we are waiting to see if the PD and/or DA can help - we are watching are statute timelines.

Because without intent, his absolute defense is that he didn't realize that he'd submitted stuff twice or been reimbursed twice or more. You'd be surprised how many people do little or no monitoring of their bank accounts. Heck, I have friends of mine whose personal financial management policy is that if the ATM will give them money, then they're ok. They don't even open their bank statements - just stuff 'em in a drawer. It's more common than you might think - and right or wrong, there would be a LOT of folks on a jury who would nod in silent agreement when the defense attorney suggests that failure by your management to properly investigate these expenses before approving payment, in concordance with complete apathy from your accounting folks (who SHOULD be on alert for these things) is the REAL culprit here.

He's going to say "I figured if it was a duplicate or there was a problem, that they'd either just not reimburse me or would talk to me or my manager for clarification. I can't help it that their accounting controls are flawed - they are the bosses, I figure they know what they're doing." The defense would likely further argue that he WAS probably reimbursed more than was correct, but without intent, there's no criminal element, and that the case should be heard in civil court for the company to try to recoup their erroneous overpayments.

Thanks for the replies.

I guess what you are saying is possession of stolen money is not the same as possession of stolen property, without intent.

Don't get cute.

That isn't what we said at all.

We said that, in this country where everyone is innocent until proven guilty, that the burden is on YOU to prove that the duplicate invoices submitted was not an honest mistake. That the burden is on YOU to state why your own AP department did not catch the mistake before you reached the 64K mark...

And that the ONLY way to recover the money itself is to file a civil claim. Even if a criminal action is started, a conviction of theft does not automatically deposit the money back into your account.

This is the definition of theft in CA from our Penal Code:

484. (a) Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who shall
fraudulently appropriate property which has been entrusted to him or
her, or who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of
money, labor or real or personal property, or who causes or procures
others to report falsely of his or her wealth or mercantile character
and by thus imposing upon any person, obtains credit and thereby
fraudulently gets or obtains possession of money, or property or
obtains the labor or service of another, is guilty of theft. In
determining the value of the property obtained, for the purposes of
this section, the reasonable and fair market value shall be the test,
and in determining the value of services received the contract price
shall be the test. If there be no contract price, the reasonable
and going wage for the service rendered shall govern. For the
purposes of this section, any false or fraudulent representation or
pretense made shall be treated as continuing, so as to cover any
money, property or service received as a result thereof, and the
complaint, information or indictment may charge that the crime was
committed on any date during the particular period in question. The
hiring of any additional employee or employees without advising each
of them of every labor claim due and unpaid and every judgment that
the employer has been unable to meet shall be prima facie evidence of
intent to defraud.

Note that the various terms refer to "feloniously" steal, or "fraudulently appropriate", or even "knowingly and designedly" defraud someone ... these all require intent be proven. Merely receiving funds is not enough. Certainly, those invoices or requisitions can go a way to proving this, but it is not always as easy as you might think. If the suspect is smart, and has come up with a plausible explanation, then the case gets harder to prove.

Civil suits have a much lower burden of proof than criminal offenses so you may want to look at the civil remedy a little more closely. if the police are not going to be abel to build a case soon enough, you might want to pursue the civil action. After all, they have about three years from the time the crime was discovered to file - I believe you only have ONE year for a civil suit.

Here is some further information from the CA Attorney General on the matter:

Theft by False Pretenses (Pen. Code, §§ 532, 484)
Theft by false pretenses is defined within Penal Code section 484 and again separately in section 532. Its elements are:
- a promise made without an intention to perform it, or a false representation of an existing or past fact known to be false; and

- the specific intent to defraud at the time the promise or false representation is made; and
- reliance upon the promise or false representation by the other person; and
- completion, i.e., a transfer or parting of the owner from his money or property.

Notice that a case of theft by false pretenses is that it resembles a legitimate transaction, usually in the nature of an exchange, transfer, or sale of property.

A representation of a future fact is not sufficient. The false pretense must be of a past fact or present one to qualify as a fraudulent pretense.

The promise or false representation may be done verbally (if there is corroboration) or in writing, or by the act or silence of a person.

If a person makes a false statement believing it to be true, it would not constitute theft by false pretenses as there would be no intent to defraud.

The victim must have relied upon the truth of the promise or false representation, although it does not have to be the sole reason he or she parted with the property. The victim is not obligated to investigate into the truthfulness of representations.

Statements that amount to no more than an expression of opinion are not false pretenses.

If there is no false representation as to the character, quality, or quantity of merchandise sold, an owner can make false and exaggerated statements to induce a sale without violating the statute.

- Carl

Note that if the sole proof necessary was the transfer of funds to his account, you could easily frame an innocent man by making phony requisitions and transfering the funds ... then, he'd be guilty, even though he never knew the money was being transfered. Not returning the money or making inquiry as to its source is not necessarily going to constitute theft.

The police will have to show that he not only received the money, but he intentionally sought to receive the money fraudulently (i.e. knowing he did not have a right to it).

- Carl

Quote:

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Quoting judsonjj

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Thanks for the replies.

I guess what you are saying is possession of stolen money is not the same as possession of stolen property, without intent.

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An interesting side note on that. The USSC ruled many years ago a person who robbed bank can NOT be charged with posession of stolen property/money in addition to bank robbery.

Quote:

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Quoting cdwjava

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Note that if the sole proof necessary was the transfer of funds to his account, you could easily frame an innocent man by making phony requisitions and transfering the funds ... then, he'd be guilty, even though he never knew the money was being transfered. Not returning the money or making inquiry as to its source is not necessarily going to constitute theft.

The police will have to show that he not only received the money, but he intentionally sought to receive the money fraudulently (i.e. knowing he did not have a right to it).

- Carl

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Yes Carl, but money mistakenly credited to a persons bank account can NOT be spent, the rightful owner must be sought.

If the funds no longer exist, then that is a crime in and of itself, agree??