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#1608989 - 09/26/11 09:51 PM Required to prosecute for theft
Klint Ostermann Offline
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Joined: Dec 2009
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We recently had a theft where a non-customer reached over the counter and took money off the counter (teller has been reprimanded) and fled. The police caught the individual, but my management wanted to see if we could make a deal with him to get restitution and not prosecute. Are there any obligations we have to prosecute as a national bank?

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#1609003 - 09/26/11 10:13 PM Re: Required to prosecute for theft Klint Ostermann
Patriot Offline
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The DA will decide whether or not to prosecute, not your bank. Why would you not want this crime prosecuted? This is not a civil matter but a criminal one. It's still possible a criminal conviction will net you some restitution.
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#1609005 - 09/26/11 10:20 PM Re: Required to prosecute for theft Patriot
Klint Ostermann Offline
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My senior management thinks that we have a better chance at getting our money back if we can convince the da to not prosecute if he makes restitution.

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#1609007 - 09/26/11 10:31 PM Re: Required to prosecute for theft Klint Ostermann
Patriot Offline
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I think your recovery chances are about equal either way - - even if your bank could influence a DA not to prosecute.

I'm a little troubled that management would even think about putting recovery above criminal prosecution, especially considering it happened on your frontline where the security and safety of your tellers should be the primary consideration. Think about the signal it sends your employees.
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#1609059 - 09/27/11 01:07 PM Re: Required to prosecute for theft Patriot
edAudit Offline
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Let the crook get make a deal with the DA and they plea bargin for restitution.

I am with Patriot.

Why would your bank want this bad guy back on the street with no punishment. To rob another branch?
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#1609213 - 09/27/11 03:27 PM Re: Required to prosecute for theft edAudit
Klint Ostermann Offline
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I'm completely with you guys on this. He was already on probation, so this charge will probably send him back to prison. I'm only asking the question because I was told to inquire.

Thanks for your response.

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#1609517 - 09/27/11 07:33 PM Re: Required to prosecute for theft Klint Ostermann
Pup Offline
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It's not that uncommon to make arrangements to pay back on a counterfeit check or kiting or something like that and put off filing charges. Close down the account and cut ties once it's paid off.

What is the prosecution like in your area? Would he plea it to a misdemeanor and get 30 days probation anyway?

Now, since he physically stole the funds from the teller, should this not be considered a robbery and turned over to the FBI? Was the cash his to begin with but you found he had a charged-off account and were going to put it to account?

There are lots of variables here which would determine whether trying to collect rather than prosecute would be viable.

Often, it is 100% up to the DA, once you've filed a report. Often, the DA will strike a deal with your approval or take direction from you as victim, and often the DA will strike a deal without your approval.

Upper management is primarily going to be interested in whatever the best course of action would be to guarantee that you get your money back. Not always.

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#1610633 - 09/29/11 04:35 PM Re: Required to prosecute for theft Pup
Andy_Z Offline
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I recall our DA would drop the case like a rock if the bank made restitution agreements and simply wanted teh DA to effectively enforce those. And if the bad gut knows that, you're sunk if you try unless it is a lump sum payment. And when that happens, there is no justice.
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#1610833 - 09/29/11 08:23 PM Re: Required to prosecute for theft Klint Ostermann
Fraudman CFCI Offline
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Arouond here, the charge would be nolled and his probation violated meaning what ever sentence was previously imposed would go into effect.

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#1611203 - 09/30/11 05:07 PM Re: Required to prosecute for theft Fraudman CFCI
Pup Offline
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Most of our DAs around here simply follow their own course of action once it is in their hands. They may take it under advisement if payments were made after charges were filed, and that would undoubtedly lead to lesser penalties.

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#1612312 - 10/04/11 06:36 PM Re: Required to prosecute for theft Pup
MidwestCFE Offline
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wish it was the Smoky Mountain...
here all criminal charges are dropped if money is taken at all-now it is considered a civil problem.
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#1693642 - 04/28/12 11:01 PM Re: Required to prosecute for theft Klint Ostermann
AlohaState Offline
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Joined: Feb 2009
Posts: 16
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I have been struggling whether the bank's objective is to "arrest" or "collect" when we take a loss. For instance, we had a case where atm withdrawals were conducted on a single owner deceased customer's acct (customer died at age 55) before and after she passed. The same person who made the atm withdrawals before and after date of death is the same. The daughter of the decedent knows about the withdrawals when questioned and said that the money was used for funeral expenses. However, she refused to identify the person in the photos and was unresponsive to future requests to contact the bank. We incurred a loss of $1500 because we had to return the SSA benefits payments which overdrew the account. When I looked at the card history, there were no PIN resets, retry or errors and no reissued card. I suspect that the deceased shared her information with her family member based on the card history and daughter's knowledge about the ATM withdrawals. However, I was told that because we only know the first name of the individual (identified by a branch person) and since we took a loss, I need to file a police report and a SAR for ID Theft. I disagreed as my intentions were to "collect" than "arrest". The loss didn't meet the $5k/$25k threshold to do a SAR. And, the objective of filing a police report was more to collect than arrest based on the card activity and known use of funds. Thus, I proposed to send a certified letter to representative of deceased, explain the return of the SSA payments is required and does not belong to the deceased and that money is owed to us. Indicate that we have knowledge of a person named XXX withdrawing from the ATMs during 2/8/12 and 2/9/12 and that we understand the funds were used for funeral expenses. Include a statement that repayment should be made by X date. Otherwise, we may proceed in filing a police report for identity theft on the deceased customer. Any thoughts on this approach vs. filing a police report first? Thanks!

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#1693655 - 04/29/12 12:52 PM Re: Required to prosecute for theft Klint Ostermann
rlcarey Online
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I'm not sure how this is identity theft? If the deceased customer gave them the card and PIN, they were never attempting to assume the identity of the deceased, either before or after death. File a claim against the estate for the money owed and move on. It's not worth your time and effort for $1,500.
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