Embezzlement Embezzlement is a statutory crime that is defined as the fraudulent conversion or misappropriation of the property of another by one who is already in lawful possession of said property. Specifically, the "fraudulent" element simply requires that the defendant wilfully and without claim of right or mistake converted the property to his or her own use. As for the "conversion" element, since embezzlement is a crime against ownership; that is, the owner's right to control the disposition and use of the property, the conversion element requires a substantial interference with the true owner's property rights (unlike larceny, where the slightest movement of the property when accompanied by the intent to deprive one of the possession of the property permanently is sufficient). For the "property" element, the embezzlement statutes do not limit the scope of the crime to conversions of personal property. Statutes generally include conversion of tangible personal property, intangible personal property and choses in action. Real property is not typically included. As for "of another" element, a person cannot embezzle her own property. Finally, the critical element of embezzlement is that the defendant must have been in lawful possession of the property at the time of the fraudulent conversion and not have mere custody of the property. If the defendant had lawful possession the crime is embezzlement. If the defendant merely had custody, the crime is larceny. Determining whether a particular person had lawful possession or mere custody is sometimes extremely difficult. See, e.g., United States v. Mafnas.
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