Michigan Criminal Lawyers Blog

This time - it's the Lansing based Michigan Attorney General's turn to take a whack at the family of former Detroit Mayor Kwame Kilpatrick.

Nneka Cheeks, the former Mayor's cousin, faces criminal charges of embezzlement, a felony punishable by up to 5 years in prison and / or a fine of $10,000.00 or 3 times the value of the money embezzled, whichever is greater, MCL 750.174(4)(a) and/or (c).

The crime occurred while Cheeks was working in the Mayor's office. The victim is the Manoogian Mansion Restoration Society, a charitable organization.

The Attorney General claims that Ms. Cheeks stole approximately $19,000.00 from the non-profit organization. She allegedly spent the funds on luxury goods and services.

Additionally, the criminal defendant is charged with the crime of criminal enterprise, commonly known as "Racketeering", MCL 750.159i and 750.159j, a felony punishable by 20 years in prison. That charge suggests that Cheeks did not act alone.

The crime of embezzlement is comprised of several necessary elements. Those are that (1) The criminal defendant either occupied or acted in a fiduciary relationship; (2) That the defendant obtained possession or control of the property through that special relationship, and; (3) That the defendant wrongfully converted or appropriated the property with (4) Intent to defraud, and; (5) Without the consent of the principal.

The elements of racketeering are: (1) Knowingly acquiring or maintaining an interest in, or control of; (a) A criminal plot, or; (b) Property used or intended to be used in such a plan, directly or tangentially; (2) Through a method or racketeering operation that had; (a) The same or a substantially similar object, result, participants, dupe, or method of commission, or was otherwise interrelated by distinguishing characteristics, which were not merely isolated acts; (b) Amounting to or posing a threat of continued criminality, and; (c) Which was committed for profit.

If any one of the necessary elements lacks a factual basis, the deficient charge must be dismissed in its entirety.

The sheer complexity and incomprehensibility of the Michigan racketeering statute will undoubtedly give Cheeks' Southfield criminal defense lawyer a leg up in the litigation, at least with respect to that charge, primarily because the prosecution carries the burden of proof throughout the entire trial.

And it is that reality which may land the criminal defendant an opportunity to turn the other cheek--and accept an offer to plead to a vastly reduced charge.

Kilpatrick's Cousin Charged With Embezzlement, WXYZ / ABC Action News, April 28, 2011

If you find yourself repeating, from time to time, the following phrase: "Now, where did I put that $100,000.00 again"? You may be in serious need of a good to-do list. And don't forget to remember to remind yourself that there's an App for that!

One thing that the victim in this embezzlement case didn't forget to do, however, was to seek a criminal complaint for the crimes of Embezzlement (MCL 750.174) and Using a Computer to Commit a Crime (MCL 752.796 and MCL 752.797) through the Kent County Prosecutor's Office in Grand Rapids, Michigan. Under the circumstances, both felonies are punishable by up to 20 years in prison.

According to attorney Gary McInerney, his former secretary, Wendy Bernard, stole the money while working as a secretary for McInerney's law firm. The incident allegedly occurred in 2004.

Which raises the question of legal defenses. One that should be leaping off of the page for Ms. Bernard's Grand Rapids criminal defense lawyer is the Michigan statute of limitations. That is because the residual statute of limitations for crimes (not specifically subject to other such statutory deadlines) is 6 years, MCL 767.24(5).

As always, every case is fact-driven. Thus, if Ms. Bernard was residing out of state, the statute of limitations might not apply in this case, due to tolling.

Another principle which might defeat the criminal defendant's defense in this matter is the doctrine of fraudulent concealment, MCL 600.5855. Under the civil law, if the person whom caused the harm actively and affirmatively concealed the matter from the victim, the dupe may have an additional two years to act, from the time of ultimate discovery. Since there are no appellate level criminal cases citing that statute, however, It is not clear whether that principle applies to criminal prosecutions.

What is clear is that silence alone is not sufficient to support a claim of fraudulent concealment, Bradley v Gleason Works. On the other hand, a fiduciary relationship is an exception to that deficiency, Brownell v Garber.

Under the common law, the action accrued when the offense was committed and the victim knew or should have known that he had been duped (or harmed, as the case may be). Recently, however, the Michigan Supreme Court in Lansing effectively abolished the second prong of common law accrual (actual or constructive knowledge). Thus, in accordance with the provisions of MCL 600.5827, the action accrues when the offense was committed, plain an simple. Trentadue v Gorton.

Let the games begin!

Woman Charged With Embezzlement From Law Firm, WZZM13 ABC News, April 23, 2011