SHOPLIFTING / RETAIL FRAUD / LARCENY / THEFT

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Sometimes we do things we know we shouldn't, other times we do things because we have to, and sometimes we are accused of things we did not do.

Aaron J. Boria, PLLC, is dedicated to helping the accused because we know it isn’t as simple as ‘right and wrong’.

SHOPLIFTING / RETAIL FRAUD / LARCENY / THEFT ATTORNEY

In Michigan, criminal theft charges cover a broad assortment of offenses with the most common being: Larceny, Retail Fraud or Shoplifting, Uttering and Publishing, and Embezzlement.

The penalties for these offences can vary depending on the seriousness of the crime, the relationship to the person or entity claiming a loss, and value of the property allegedly stolen.

A conviction of a theft related crime would have a negative impact on your life. Theft crimes are considered crimes of moral turpitude. These types of crimes can make it difficult in gaining future employment, denial of certain student loans and disqualification from other financial opportunities.

A crime of moral turpitude is especially heinous for someone that is in this country on a visa or a green card as it can cause complications with immigration and could even result in deportation.

Many people who are charged with retail fraud are good people who made a poor choice. Shoplifting can be very tempting during the holidays and the need to buy gifts, or when you are simply down on your luck. Many people call my office and explain that they can’t believe they are being charged with a crime, how embarrassed they are, and now they have to go to court for the first time ever.

Aaron J. Boria is an experienced criminal defense attorney who will guide you and fight for the absolute best possible outcome. Boria has won trials and obtained countless dismissals for people accused of theft offenses, even in cases where the people believed they were truly guilty.

A theft offense stays on your criminal record for life. Hire the best attorney out there that will fight for your future.

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Shoplifting and Retail Fraud

The most common theft offense in Michigan is retail fraud, also known as "shoplifting".

It is the prosecutor’s burden to prove beyond a reasonable doubt that a person stole merchandise from a store; you don’t have to prove a thing. To be guilty of retail fraud the prosecutor must prove a person took property that a store had for sale and attempted to take the item from the store without paying for it.

What is retail fraud?

There are three types of retail fraud charges: Retail Fraud by Theft, Retail Fraud by Price Switching, and Retail Fraud by False Exchange.

Retail Fraud by theft is probably the most common type of shoplifting. In order for the prosecuting attorney to convict you of retail fraud by theft they would have to prove that you tried to steal some item of value that was for sale at a store, while the store was open for business.

Retail fraud by price switching is charged when the prosecutor alleges that you altered or switched a price tag, or somehow misrepresented the price of property in order to pay less for the item.

Retail fraud by false exchange is charged when the prosecuting attorney claims you tried to exchange property that had not been paid for, that belonged to the store, and you made the exchange with the intent to receive money or store credit or cheat the store in someway.

What are the penalties for retail fraud?

There are three degrees of retail fraud with corresponding punishments. Retail fraud degrees are based on the value of the item stolen.

Retail Fraud in the third degree is a misdemeanor and is charged when the value of the item stolen is under $200. The maximum penalty for retail fraud third is up to 93 days in jail and a fine of up to $500.00 or 3 times the value of the item, MCL 750.356d(4).

Retail Fraud in the second degree is a misdemeanor and is charged when the value of the item is over $200 and less than $1000. The maximum penalty for retail fraud is up to 1 year in jail and a fine of up to $2,000.00 and 3 times the value of the item, MCL 750.356d(1).

Retail Fraud in the first degree is a felony and is charged when the value of the item is $1000 or more. The penalty for first-degree retail fraud is up to 5 years in prison, $10,000 in fines or three times the value of the item stolen, MCL 750.356c(1).

What are defenses to retail fraud?

There are defenses to retail fraud. Retail fraud cannot happen by mistake, so if you took something by mistake thinking it was yours than you are not guilty.

If you reasonably believed  you had permission to take an item than you are not guilty.

If the property was yours, or you reasonably believed it to be yours, than you have a claim of right and you are not guilty.

Depending on the facts of your case there may be more defenses.

Even if you believe you are guilty is it still possible that your case could be reduced or even dismissed.

ORGANIZED RETAIL FRUAD

    A new criminal offense can turn a 93-day misdemeanor like retail fraud in the third degree into a serious 5-year felony offense. That's right, if the prosecutor can point to facts that would make it look like you planned to sell something you stole you could get slapped with a felony. 
    For example, if you are accused of stealing something from a department store and then sold it to a pawnshop or a friend than you could easily be charged with Organized Retail Fraud, a five-year felony. 
    Public Act 455 of 2012 created the Organized Retail Crime Act now found under Michigan Compiled Law 752.1081 through 752.1087. The law prohibits organized retail crime and provides for forfeiture of and restitution for stolen retail merchandise. MCL 752.1084 provides for a maximum possible penalty of the five-year felony and up to $5,000 fines.

    Organized Retail Crime Defined Under Michigan Law

    “Organized Retail Crime” is defined under MCL 752.1083(c) as stealing retail merchandise from a retail merchant (someone that sells goods) with the intent of reselling, distributing, or otherwise reentering the retail merchandise in commerce, including the transfer of the stolen retail merchandise to another retail merchant or to any other person personally, through the mail, or through any electronic medium, including the internet, in exchange for anything of value.
    “Person” under MCL 752.1083(d) means an individual, sole proprietorship, partnership, cooperative, association, corporation, limited liability company, personal representative, receiver, trustee, assignee, or other entity.

    Elements of Organized Retail Crime

    In Michigan, all crimes are made up of elements. The prosecuting attorney must prove each and every element beyond a reasonable doubt. If even one element cannot be proven then the person charged with a crime is entitled to a not guilty verdict.

    The Organized Retail Crime statute, MCL 752.1084, lists a number of ways a person could be guilty or the crime:

    (a) Knowingly commits an organized retail crime.
    (b) Organizes, supervises, finances, or otherwise manages or assists another person in ?committing an organized retail crime.
    (c) Removes, destroys, deactivates, or knowingly evades any component of an antishoplifting or inventory control device to prevent the activation of that device or to facilitate another person in ?committing an organized retail crime.
    (d) Conspires with another person to commit an ?organized retail crime.
    (e) Receives, purchases, or possesses retail ?merchandise for sale or resale knowing or believing the retail merchandise to be stolen from a retail merchant.
    (f) Uses any artifice, instrument, container, device, or other article to facilitate the commission of an organized retail crime act.
    (g) Knowingly causes a fire exit alarm to sound or otherwise activate, or deactivates or prevents a fire exit alarm from sounding, in the commission of an organized retail crime or to facilitate the commission of an organized retail crime by another person.
    (h) Knowingly purchases a wireless telecommunication device using fraudulent credit, knowingly procures a wireless telecommunications service agreement with the intent to defraud another person or to breach that agreement, or uses another person to obtain a wireless telecommunications service agreement with the intent to defraud another person or to breach that agreement.

    Who gets the recovered property?

    The law states if the true owner of stolen retail merchandise cannot be identified, the retail merchandise, and any proceeds from the sale or resale of that merchandise, is subject to forfeiture to the state for use by the Board in performance of its duties, if the true owner of stolen merchandise cannot be identified, which means the state of Michigan keeps it under mcl 752.1084(3).

Larceny from a person

The offense of larceny is charged when there is an allegation that property was stolen from a person or a building. Larceny from a person is when property has been taken from another individual, MCL 750.357. Larceny from a building is when a person enters a building, home, office, warehouse, school, boat, or the like, and removes property inside MCL 750.360.

If a theft of merchandise occurs in a retail store while the store is open to the public the proper charge under Michigan law is retail fraud or shoplifting. Information about retail fraud can be found in the tab above. Larceny from a building and retail fraud cannot be charged for the same offense.

What is larceny from a person?

In order for you to be guilty of larceny from a person the prosecuting attorney must prove beyond a reasonable doubt that you took someone’s property, without their consent, while that person was nearby, with the intent to permanently deprive that person of their property, MCL 750.357.

What are the penalties for larceny from a person?

In Michigan, Larceny can be charged as a misdemeanor or felony under MCL 750.356. The value of property stolen determines the severity of the offense charged.

MCL 750.356(6) “Value of property stolen” includes the cost of repairing damages cause by the larceny. MCL 750.356(7) allows the values of property stolen in separate incidents over a 12-month period to be added together to determine the total value of property stolen.

If the value of the property stolen is less than $200 the charge is a misdemeanor offense with a maximum penalty of 93 days jail and a fine of $500 or 3 times the value of the property stolen, MCL 750.356(5).

If the value of the property stolen has a value of $200 to $1,000 the charge is a misdemeanor offense with a maximum penalty of 1-year jail jail and a fine of $500 or 3 times the value of the property stolen, MCL 750.356(4).

If the value of the property stolen has a value of $1000 to $20,000 the charge is a felony offense with a maximum penalty of 5 years prison and a fine of $5,000 or 3 times the value of the property stolen, MCL 750.356(3).

If the value of the property stolen has a value of $20,000 or more the charge is a felony offense with a maximum penalty of 10 years prison and a fine of $15,000 or 3 times the value of the property stolen, MCL 750.356(2).

Prior convictions can result in facing an enhanced punishment.

What are defenses to larceny from a person?

A larceny cannot happen by accident, so if you took property that you believed to be yours and it turns out you were mistaken than you are not guilty.

If the property was yours and you were taking it back than you have the claim of right defense.

If you did not intend to permanently deprive the person of the property than you lack what is called specific intent and are not guilty.

If the person you took the property from gave you permission to take it than you have the defense of consent.

In any criminal charge where the prosecutor cannot prove all of the elements of the crime beyond a reasonable doubt than you are not guilty.

Our firm has successfully has a jury acquit charges of theft, obtained dismissals of theft charges, and reduced numerous theft offenses including larceny from felonies to misdemeanors.

Embezzlement

The charge of embezzlement is associated with white-collar crime and crimes that happen in the work place. White-collar crimes carry serious penalties in the State of Michigan. Here at Aaron J. Boria PLLC, we zealously defend our clients, assert their innocence and strive for the best possible result.

What is embezzlement?

Under Michigan law, MCL 750.174, the crime of embezzlement is broken down into elements. Each element must be proven beyond a reasonable doubt in order for you to be guilty of embezzlement.

First, the prosecutor must prove that money or property belonged to a principal, usually a business.

Second, that the person accused of embezzlement had a relationship of trust with the business.

Third, that because of that relationship the person obtained possession of the money or property.

Fourth, that the person dishonestly disposed, converted, or took the money or property.

Fifth, that it was done with the intent to defraud or cheat the principal.

Sixth, the value of the property or the amount of the money taken must be proven.

What is the penalty for embezzlement?

Under Michigan law, MCL 750.174, the penalty for embezzlement is based on the amount of money or the value of the property taken. Penalties range from misdemeanors to felonies punishable by up to 20 years in prison.

MCL 750.174(2) If the money or property embezzled has a value less than $200.00 the maximum penalty is 93 days in jail and a fine of $500.00 or 3 times the value of the money or property embezzled, whichever is greater.

MCL 750.174(3) If the money or property embezzled has a value of $200.00 but less than 1,000.00 the maximum penalty is a year in jail and a fine of $2,000.00 or 3 times the value of the money or property embezzled, whichever is greater.

MCL 750.174(4) If the money or property embezzled has a value of $1,000.00 but less than 20,000.00 the maximum penalty is a 5 years in prison and a fine of $10,000.00 or 3 times the value of the money or property embezzled, whichever is greater.

MCL 750.174(5) If the money or property embezzled has a value of $20,000.00 but less than 50,000.00 the maximum penalty is a 10 years in prison and a fine of $15,000.00 or 3 times the value of the money or property embezzled, whichever is greater.

MCL 750.174(6) If the money or property embezzled has a value of $50,000.00 but less than 100,000.00 the maximum penalty is a 15 years in prison and a fine of $25,000.00 or 3 times the value of the money or property embezzled, whichever is greater.

MCL 750.174(7) If the money or property embezzled has a value of $100,000.00 or more the maximum penalty is a 20 years in prison and a fine of $50,000.00 or 3 times the value of the money or property embezzled, whichever is greater.

The value of the money or property embezzled can be aggregated over a period of 12-months. If the money or property embezzled was against only one principal than no time limit applies. MCL 750.174(8).

What are the defenses to embezzlement?

There are many defenses to the charge of embezzlement. Aaron J. Boria, PLLC has the experience needed to defend against embezzlement charges.

The person accused of embezzling must have acted without the consent of the principal. If the person accused had permission to take money or property they are not guilty.

If the money or property was taken by accident than the person is not guilty of embezzlement.

If the person accused of embezzlement did not intend to deprive the principal at the time of conversion than they are not guilty.

If any of the elements mentioned above are not proven beyond a reasonable doubt the accused is not guilty.

 

Uttering and Publishing

    If you have been accused of using a fake check or manipulating a check you could be charged with uttering and publishing, a 14-year felony under Michigan law, MCL 750.249.
    Every criminal situation is different based on the facts of your case. Defenses in this case could include that the check was not counterfeit, that the person accused of the crime did not know the check was counterfeit, a simple mistake occurred, or the person’s intention was never to cheat anyone.
    We have the experience needed to get the results you deserve.

Financial Transaction Device – Credit Card Fraud

What is financial transaction device?

MCL 750.157m(f) defines financial transaction device as a credit card, electronic fund transfer card, debit card, point-of-sale card, or any instrument that can access an account for the purpose of obtaining anything of value.

What is possession of financial transaction device?

MCL 750.157n(1) states that a person who steals or takes a financial transaction device, like a credit card, from the true owner, or who knowingly retains, possesses, secretes, or uses a financial transaction device without the consent of the owner is guilty of a felony.

What is the penalty for possession of financial transaction device?

MCL 750.157n(2) makes it a felony to knowingly possess a fraudulent or altered financial transition device. The maximum penalty for possession of a fraudulent financial transaction device is 4 years in prison.

What are the defenses to financial transaction device?

Financial transaction device cannot occur by mistake or accident. If you accidently took someone’s credit card or mistook it for your own you are not guilty of financial transaction device.

If you were given permission to use a financial transaction device you are not guilty.

In some cases a person may have had permission to use a financial transaction device of a friend, family member, or significant other. If that relationship ended poorly it is possible that you were wrongly accused of violating the financial transaction device law.

If even one element of the crime cannot be proven than you are not guilty.

Immigration Consequences and Criminal Charges

    If you are not a citizen of the United States you could be facing serious consequences that could have a major impact on your immigration status. Even a charge that may seem petty could affect your ability to become a citizen and a serious offense could of course lead to deportation.
    Theft and larceny charges can cause a major problem with immigration because it is considered a crime of moral turpitude and those types of offenses can result in deportation.
    In many of the cases where the evidence points to our client being guilty we will change the offense to a crime that is not considered an offense to moral turpitude. In most cases, we can avoid deportation proceedings by changing the offense to one that is not a crime of moral turpitude . 

“From the moment I was calling around for advice, I spoke with Mr. Aaron Boria I was impressed with his knowledge and eagerness to help and answer every question I had. He was awesome from the first call to the verdict received. I am grateful for everything he did and the result of the case. I do believe without him the outcome would of been jail. Thank you Mr. BORIA FOREVER GRATEFUL.” – Barbra in Ypsilanti