Criminal Defense Attorney Tulsa | Hard-Hitting Defender | Cale Law Office
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The defendant pleaded guilty to embezzling from her employer. She objected, however to the amount of loss asserted in the presentence report prepared by the probation office. After her plea, the district court held a sentencing hearing at which the prosecution presented evidence as to the amount of loss. The court then sentenced the defendant to determine of imprisonment and restitution. She now appeals arguing that the District Court impermissibly said to the burden of proof that sentencing hearing. The required her to disprove the amount of loss rather than requiring the government to prove it.
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The prosecution alleged that the defendant embezzled more than $500,000 from her employer by writing unauthorized checks from the company account for personal benefit. She also conducted transfers from her accounts to her home benefit. She had her scheme by altering entries in the company’s accounting records. She was sentenced to prison term of 27 months and ordered to pay restitution to her employers. Two factors related to the fence sentencing are at the center this appeal. First is the amount of loss in which the district court-based Mrs. Jones prison sentence and restitution amount. The second is the time period during which the defendant committed the offense.
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The criminal information charged the defendant with embezzling over $500,000 from the company. Her plea petition stated only that she had been embezzled more than 5000, the amount acquired under statute. All just a court of plea hearing, the defendant’s attorney specifically noted that in the plea petition you might notice that the amount of loss we’ve listed at more than $5000. That’s what the statute reads to make a felony. The attorney did want to waive any potential issues with the amount of loss for sentencing guideline purposes. The presentence investigation report however asserted that the defendant embezzled more than $500,000 from her employer. Specifically, list of various time periods during which the defendant wrote checks from the company bank account to her own personal bank account. It also showed where she wrote unauthorized checks from the company account for personal benefit, or made unauthorized purchases with company credit card. Each entry list the amount of funds embezzled during that time period. The defendant challenge the amount of loss detailed by the report asserting that there were some expenses that were authorized by the company and others that were not. For example, the defendant said she bought lunches and office supplies with personal credit card but was subject to reimbursement.
At the sentencing hearing, the prosecution presented the testimony of an office manager of the company. She testified that she provided information to which the calculations in the report were base. The prosecution proceed to review each of instances of investment detailed in the report. The prosecutor asked the witness if she had to supply the information to the FBI and if information was correct. She answered in the affirmative. What is confirmed a hearing that there were only two reimbursements that were authorized.
On cross-examination, the defendant admitted that when she arrived at the company there’s a lot of missing information from the businesses record-keeping. She also agreed with the defense counsel that she had found ledgers in the company office that appeared to authorize payments for things like bills and parts and of things. This may connection with employee overtime work. However, she never came across a ledger for the defendant. She further testified that she simply did not know whether the defendant in the company may have had some type of agreement under which she could use her personal credit card for business expenses and then be reimbursed.
The court sustained the defense objection is to the inclusion of a certain dollar amount of loss calculation. However, the court largely overruled her more general objection to the prosecution having failed to prove the remaining amount of loss. Specifically the court found that there was some wrongdoing around insurance payments but not shown by preponderance of evidence that the high dollar figure was embezzled. It further noted that the defendant also has shown that personal credit cards were used to pay for another dollar amount. You want the best criminal defense attorney Tulsa has to offer.
The appellate court underscored that the defendant’s burden of the first prong is to show on the existing record that the District Court made a mistake. Speculation can check sure will not apply. Speculation waste times and bears the ephemeral fruit. The burden of showing that there was committed should not be based on mere speculation. The defense argued that the District Court improperly said to the burden of proof to her by requiring her to prove that particular dollar amount should not be included the amount of loss. Comments that the defendant identifies originally interpreted as advancing nothing more than the court’s efforts to summarize the evidence before it. Call the Cale Law Office at 918-277-4800 to schedule your free initial consultation.