Albuquerque, NM asked in Criminal Law and White Collar Crime for Texas

Q: Is civil restitution between two parties (in lieu of criminal prosecution) blackmail, extortion or bribery?

TEXAS:

We are a small business and discovered a substantial loss due to embezzlement from a now former contractor. The Police were notified but we have not yet been contacted by a detective or officer. The contractor admitted to the theft and obviously doesn't want to go to jail. We would much rather be made whole from the loss than go through a criminal trial requiring even more time and resources from us.

If we make an agreement to not finalize the complaint on the condition that the former contractor reimburse us for the loss and reasonable associated costs of the embezzlement would this be considered extortion or blackmail? IE: Choosing not to continue with Police if a certain condition (restitution) is met. Criminal trials take time and even if restitution was part of it we just want to move on with our business as soon as possible. No such agreement has been made as of yet as we don't want to be on the wrong side of the law ourselves.

1 Lawyer Answer

Kiele Linroth Pace

Answered
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: This is a situation in which the contractor has potential civil liability to you and criminal liability to the state.

In criminal cases, the alleged victim can't really "drop the charges" and make the case magically disappear like on TV. You can tell the police and/or prosecution that you hope they dismiss the case, that you don't want to cooperate, and that you will not VOLUNTARILY testify in court... so you could agree to do those things but YOU could be committing a crime yourself if you lied to investigators, interfered or obstructed the police, or if you disobeyed a subpoena. In other words, the state can bring a criminal prosecution whether or not the alleged victim wants it... this dynamic comes up frequently in domestic violence cases.

Since the state has already been notified of the crime, the final decision on whether or not to seek criminal prosecution is already out of your hands. That said, most law enforcement officers would rather spend their time helping someone who NEEDS the help, so if you tell the detective you are no longer interested they will PROBABLY back off.

From a criminal law point of view, if the contractor were to make you whole, that would be mitigating with regard to punishment but it wouldn't fundamentally change the issue of guilty vs. innocence... except it might be akin to confessing guilt.

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