Mountain Law: Explaining the laws on embezzlement in Colorado
December 17, 2014
In the classic 1951 screen adaptation of Charles Dickens' "A Christmas Carol," a business owner named Mr. Jorkin must admit to his board of directors that the company is insolvent following years of embezzling. Mr. Scrooge seizes advantage of the crisis to gain control of the company, just one in a series of questionable dealings that cause him to later be haunted by Christmas ghosts.
Like Mr. Jorkin, there have sadly been several locals recently accused of embezzlement. There's (allegedly) the property manager who "borrowed" funds from a homeowners association, the director of an association of Realtors who forged checks to herself and a public clerk who took money from tax accounts. Let's use this opportunity to talk about the law of embezzlement in Colorado before reminding ourselves the lesson of Mr. Scrooge.
There was a time when embezzlement, along with larceny, stealing, false pretenses, confidence games and shoplifting, were considered separate crimes. Under this approach, embezzlement was distinguished from other crimes in that it involved the violation of a trust relationship between the perpetrator and the victim. Today, the crimes listed above are all considered simply theft, and prosecutors use the same theft statute to charge defendants for all of them.
The theft statute indicates that the severity of the charge — ranging from a class 1 petty offense to a class 2 felony — is determined solely by the value of the item(s) allegedly stolen. Stealing less than $50 nets the lowest charge, while stealing $1 million or more brings the highest possible charge. Once the type of charge is determined, prosecutors use the unique aspects of the crime to argue in favor of a harsher penalty within the range allowed for the charge. Thus, the fact that a crime involves violation of a trust relationship (in what would have formerly constituted embezzlement) is treated as an aggravating factor for plea-bargaining and sentencing purposes.
Mr. Scrooge did not embezzle funds that we know of, but he did lead a rotten life that is later shown to him by the ghosts of his past present, and future. ... This holiday season let’s not forget that such transformations are ultimately possible, even by those who have previously violated our trust.
When a person embezzles twice or more within a period of six months, or embezzles twice or more against the same victim, the theft statute allows the prosecutor to "aggregate" the charges into a single count. The perpetrator then faces the maximum penalty for the aggregated count as if it had been a single crime.
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An increasingly common type of embezzlement involves trusted caretakers stealing from "at risk" people such as the elderly or disabled. In those cases, there is a special at-risk statute that imposes harsher penalties than the regular theft statute.
There is also a special statute that governs theft of public property. It prevents anyone found guilty of stealing public property from thereafter serving in the legislature or holding other state positions of trust. Stealing public property of any value is a class 5 felony.
A person found guilty of embezzlement will likely be ordered to pay restitution to the victim(s). A restitution order is enforceable like a civil judgment and cannot be discharged in bankruptcy.
Embezzlement schemes can often be complex and therefore difficult to prosecute. The prosecutor must show that the perpetrator intended to commit the crime. In defense, the accused will often assert that the alleged conduct was just an innocent mistake.
Returning now to the story, Mr. Scrooge did not embezzle funds that we know of, but he did lead a rotten life that is later shown to him by the ghosts of his past, present and future. In an effort to avoid the future shown to him, he becomes a changed man and learns to treat everyone with kindness, generosity and compassion. This holiday season let's not forget that such transformations are ultimately possible, even by those who have previously violated our trust.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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