var json_comments = new Array("
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Nogard13
October 27, 2009 3:24 PM
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WTF?


How is this a crime? Since when is accepting money for not doing anything illegal? Don't Congressmen do it every day?


This should've been a civil case where they sue him for the money back.

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13 replies
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Archangelo
October 29, 2009 1:54 AM
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@Nogard13: There is extensive case law on this type of larceny in both state and federal decisions. It is a crime that constitutes a traditional form of \"embezzlement\" or \"unlawful withholding\" where one knowingly withholds the property of another with the intent to permanently appropriate the property to his own use. In a nutshell, the guy knew that he wasn't working for Avaya and wasn't supposed to be getting paid by them, so keeping the money was a crime. As for companies like Verizon, they should also be criminally prosecuted, but it is too much work for an Assistant District Attorney to pursue such a case, particularly when they have a docket full of rapists, muggers and other miscreant products of the explosive teen pregnancy epidemic gripping our nation.

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thezone
October 27, 2009 3:48 PM
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@Nogard13: After reading multiple articles I figured it out. He took money out of the retirement fund. When he called Fidelity he claimed to be an employee. That's how he was charged.

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2 replies
October 27, 2009 7:22 PM
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@thezone:
Yeah, that info definitely puts the story in a WHOLE other context.

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Cant_stop_the_rock
October 27, 2009 3:46 PM
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@Nogard13:

2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.

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2 replies
October 27, 2009 7:19 PM
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@Cant_stop_the_rock: [CITATION NEEDED]
2C:20-6 Who's criminal code is that? Anyone can make up numbers. :-p

Besides, I'm not sure this fits into lost, mislaid, or delivered by mistake.
By conventional use I agree that keeping your neighbor's package that the post officer (or fedex/ups etc) delivered to your place by mistake is theft, but in this case it's technically not a mis-delivery.
The money was delivered to it's intended recipient.
The issue only arose (LONG after it's successful delivery) when the sender realized they didn't want to (shouldn't have) sent it in the first place.
So it seems to me that the sender was at fault, and should be SOL (rather than having grounds to charge the recipient).

Look at it this way.
A police officer can't absolve himself of shooting a by-standard (let-alone charge said by-standard with THEFT of a bullet) by just saying \"I actually intended to point my gun at that other guy\" after he pulls the trigger.

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Naame
October 27, 2009 7:40 PM
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@2 replies by: Here is the citation you requested. It is not directly from the government, but hopefully it will satisfy you.

[www.newjerseycriminallawattorney.com]

One thing to note here guys is that this is NJ law. There are some states that cannot charge you for a crime if property is delivered by mistake. Not sure if that makes a difference for anyone involved with this story, but I thought you should know.

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mythago
October 27, 2009 8:10 PM
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@Naame: \"There are some states that cannot charge you for a crime if property is delivered by mistake\" - the law in New Jersey also does not say that you can be charged with a crime if property is delivered by mistake. The crime is in property being delivered by mistake, your knowing that it was delivered by mistake, and nonetheless keeping it for your own purposes.


If the UPS guy delivers your Amazon package to me, and I call Amazon and say \"hey, please send me a return label so I can get this guy his books,\" or I leave the box on your doorstep, I'm not a thief. If I keep your books, I am.


So if this guy had given them direct-deposit information for a savings account he never used and didn't even know about the mis-deposited checks, he would NOT have committed theft. He knew and he apparently arranged to get and keep the pay he wasn't entitled to. Big difference.

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zerj
October 27, 2009 4:26 PM
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@Cant_stop_the_rock:


Where things could get tricky is if he had direct deposit setup and never touched any of the cash. I'd guess at that point the bank interest would be his but there's nothing criminal.

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mythago
October 27, 2009 4:32 PM
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@zerj: Your guess would be wrong on all counts.

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kd5jos
November 13, 2009 4:34 PM
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@mythago: If somebody puts money in to my account, and I don't know about it, and I don't spend it because I don't know about it, I'd be committing a crime? What crime have I committed?

2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.

I never converted it to my own use.

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mythago
October 27, 2009 3:42 PM
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@Nogard13: C'mon. This was not \"accepting money for not doing anything\". This was clearly an error where the people sending payroll checks were not told (or their computers were not told) that the guy had quit. He knew he didn't work for them, he obviously knew he wasn't entitled to the money, but he kept it.


If he didn't do anything wrong then why do you think there should be a civil case?

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rworne
October 27, 2009 5:03 PM
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@mythago:


Dunno. Maybe he thought it was a severance package. Lots of execs get payouts better than this, even if they work for a ridiculously short period of time.

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mythago
October 27, 2009 5:58 PM
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@rworne: Right. Or maybe he thought that the Little Green Men were beaming money into his account as a goodwill gesture toward Earthlings.

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exploded
October 27, 2009 3:30 PM
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@Nogard13: I would think that the argument would be that he was hired and signed a contract with the company. He never performed any of the services in the contract, but was still paid for them, hence the fraud.

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shadowkahn
October 27, 2009 6:41 PM
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@exploded:

I've been waiting for an article like this to pop up. Anyone remember the Verizon story from the other day, where Verizon falsely charged a couple an extra $20 a month because Verizon had not, as it was obligated to do by a cancellation notice, cancelled their dialup internet line?

Why is it that this man has to pay the company back, but Verizon doesn't have to pay their victims back? Seems to me (and yes I know this is bleedingly obvious to all but the most blinded out there) that the justice system is weighted rather heavily in favor of corporations, and not the people that the government is supposed to serve.

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Blueskylaw
October 27, 2009 3:43 PM
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@exploded:


Isn't that what a politically connected \"consultant\" does?

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Esquire99
October 27, 2009 3:39 PM
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@exploded:
While we don't know what he was initially charged with, he pleaded guilty to theft, not fraud.

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exploded
October 27, 2009 4:15 PM
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@Esquire99: The difference there is, no one demands the money back.

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floraposte
October 27, 2009 3:25 PM
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Actually, they didn't sue him, they pressed charges--that's why he had something to plead guilty to.

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3 replies
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Skaperen
October 27, 2009 6:18 PM
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@floraposte: They pressed charges for what crime? Is there a CRIME for taking something being given to you? Now if they had a reason to believe he acted fraudulently to get this, that's another story.

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mythago
October 27, 2009 11:09 PM
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@Skaperen: Yes. It is a CRIME to take something given to you when you know it was given to you by mistake, isn't yours, and you keep it.

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strathmeyer
October 28, 2009 8:23 AM
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@mythago: Again, citation needed. And you forgot to mention that you aren't a lawyer.

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dima7g
October 29, 2009 12:20 AM
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@strathmeyer:


Here's an excerpt from a New Jersey criminal code (I believe this is where this man lives):


\"A person who comes into control of property of another that he knows to have been ... delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.


Section: 2C:20-6. Theft of property lost, mislaid, or delivered by mistake


[lis.njleg.state.nj.us]

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floraposte
October 27, 2009 7:00 PM
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@Skaperen: They pressed charges for theft, and he was found guilty. The investigation was triggered when he called them to ask them to give him more money.

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savvy999
October 27, 2009 3:27 PM
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Article fails to say, exactly what did he do wrong?

Ethically there is much to discuss here, but unless he purposefully deceived the company I'm not sure \"theft\" applies here.

Is this any different than the proverbial, \"someone sent me a toaster in error and I kept it\" situation. Someone sent him $470k in checks in error, and he kept it.

This has come up in other posts, where bank funds get mistakenly put in someone else's account, and then they are held liable.

As a teaching moment, what does the law say here?

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5 replies
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twophrasebark
October 27, 2009 4:22 PM
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@savvy999:

Theft applies whether it be money mistakenly deposited into your bank account or a diamond ring mistakenly shipped to you.

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treimel
October 27, 2009 4:13 PM
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@savvy999:


If you are receiving paychecks into your account that you know you are not entitled to, and keep them anyway--that's a crime. I guarantee you that in every state in the union, you can be chargesd with some species of theft or fraud; the statute's wording would change, but this is prosecutable anywhere.

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billy
October 27, 2009 4:24 PM
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@treimel: It's worth it to say that 2C:20-6 is the New Jersey statute (where the guy was prosecuted).

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Cant_stop_the_rock
October 27, 2009 3:46 PM
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@savvy999:

2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.

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Philippe23
October 27, 2009 6:23 PM
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Sounds like this guy should have just offered to give 25% back:

\"Verizon Won't Give Elderly Couple Their $600 Back\": [consumerist.com]

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acasto
October 27, 2009 3:28 PM
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They should have just hired the Bobs to \"fix the problem\".

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6 replies
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halcyondays
October 27, 2009 3:55 PM
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@acasto: \"What would you say you DO here?\"

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thehouserules
October 27, 2009 4:10 PM
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@halcyondays: If the dude would have just burned the building down, he wouldn't be in this mess.

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farcedude
October 27, 2009 3:43 PM
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@acasto: \"Well, just a second there, professor. We, uh, we fixed the *glitch*.\" One of my favorite movies.

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bloggerX
October 27, 2009 3:50 PM
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@Betsumei: That guy looks like he used that stapler for other reasons besides stapling papers...

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Kimaroo - 100% Pure Natural Kitteh
October 27, 2009 4:24 PM
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@bloggerX: He just wants his stapler back, don't take his stapler.

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Meathamper
October 27, 2009 3:29 PM
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Serve six years in jail for another company's mistake... very fair.

Then again, he should have dealt with this as soon as he saw the first check.

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7 replies
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DD_838
October 27, 2009 3:52 PM
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@Bearded Rapper:

Six years is ridiculous. Why should he serve time for a MISTAKE made by somebody else? I can see having to pay the money back, but not a prison sentence.

Also, why did it take 6 years for the company to notice such a large error? If this company is that negligent they deserve to lose the money.

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coren
October 27, 2009 6:37 PM
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@DD_838: He tried to take moeny out of the retirement plan, that's where they got him.

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mythago
October 27, 2009 4:35 PM
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@DD_838: I'm unaware of a law that says if you keep stealing from somebody long enough, you get to keep everything you stole and it's not a crime. Citation please?

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rpm773
October 27, 2009 4:55 PM
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@mythago: I'm checking Findlaw for Finders/Keepers vs Losers/Weepers....oddly, nothing seems to be coming up.

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mythago
October 27, 2009 5:09 PM
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@rpm773: Check under the \"Grade School\" section.

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rpm773
October 27, 2009 5:13 PM
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@mythago: Heh. I like your material in this section.

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rpm773
October 27, 2009 5:14 PM
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@rpm773: And by \"section\", I mean \"thread\".

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treimel
October 27, 2009 4:14 PM
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@DD_838:
The \"mistake\" was keeping money which belonged to someone else. He's a thief, and belongs in jail.

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floraposte
October 27, 2009 4:09 PM
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@DD_838: Because he knew it was happening and took an active role in trying to get more money out of them.

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zombies.like.lattés.too
October 27, 2009 3:42 PM
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@Bearded Rapper: considering it'll cost taxpayers around $20,000 a year to incarcerate the guy, it's a pretty raw deal.


I agree with your second point, though. No such thing as free money.

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whateverthisis
October 27, 2009 5:04 PM
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@zombies.like.lattés.too: Actually, I found a quarter today on the ground... no one around to give it back to.... free money in my book.

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Kogenta
October 27, 2009 6:03 PM
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@whateverthisis: I doubt anyone would sue over a quarter. If you found a brief case with a million bucks in it and kept it, then you might have some problems.

Anyhow, someone mentioned in one of the other threads that the linked article says that he tried to take cash out of the company retirement fund claiming to be an employee, when he wasn't.

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The Cynical Librarian
October 28, 2009 12:31 AM
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@Kogenta: I call B.S. on your first point. I saw this documentary once called \"Dumb and Dumber\" and they didn't get thrown in jail.

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Blueskylaw
October 27, 2009 3:29 PM
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Let's take a credit card companies view on this:


I'm sorry, I can only credit you 3 months employment because you should have caught the mistake earlier.
Don't take that 3 months credit as an admission of something we did wrong, it's we who are doing you a one time favor.

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3 replies
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Orv
October 27, 2009 6:46 PM
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@Blueskylaw: Yeah, or maybe it should be like pay discrimination cases, where if they get away with it for six months they're off the hook.

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tbax929
October 27, 2009 5:24 PM
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@Blueskylaw:
Now that's just silly. We all know that companies don't have to abide by the same laws that plebes do.

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ExtraCelestial
October 27, 2009 3:35 PM
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@Blueskylaw: Haha soo true!


I love how these things only work in a company's favor. We should start making THEM sign contracts with US before we agree to do business.

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TCama
October 27, 2009 3:31 PM
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\"Corporate accounting is sure as hell going to notice 305, 3 ... 26.13, Michael!\"

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4 replies
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dfens42
October 27, 2009 6:27 PM
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@TCama:


\"What am I going to do with 40 subscriptions to 'Vibe'?\"

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dfens42
October 27, 2009 4:05 PM
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@TCama:


\"Ok! Ok! I must have, I must have put a decimal point in the wrong place or something. Shit. I always do that. I always mess up some mundane detail.\"

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macinjosh
October 27, 2009 6:12 PM
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@dfens42: Well, this is not a mundane detail Michael!!

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corkdork
October 27, 2009 3:31 PM
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Perhaps he should pull a Verizon, and offer them a partial credit back -- perhaps the current tax year, as it'd make their job easiest (no changes to prior year's returns).

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Liam Kinkaid
October 27, 2009 3:32 PM
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Hmm, I think you can apply this to another current story on Consumerist. The one about Verizon continuing to bill for canceled service. Yes, the CSRs are crediting every month, but what's to stop the ex-customer from paying one month, then turning around and slapping a theft suit on Verizon? Perhaps the prosecutors can recommend Verizon's CEO spend 6 years in prison.

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eddieck
October 27, 2009 3:33 PM
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Avaya isn't a telemarketing company. They sell expensive phone systems.

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7 replies
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catastrophegirl chooses not to fly
October 27, 2009 6:30 PM
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@eddieck: actually they make the thing that drives the voicemail on my phone at work. unfortunately it hasn't worked in over 2 years and no one knows why

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Hoss
October 27, 2009 4:15 PM
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@eddieck: And they must be a fine communications company at that. Budgeting accountablility? Hell no, just take last year's amounts and run them forward -- no sense wasting time listing people. Bob and accounting will take care of it

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QuantumRiff
October 29, 2009 12:40 PM
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@Hoss: Given the cost of my companies last upgrade of our Avaya PBX (phone system) they can afford it.. Good god is that expensive stuff

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gparlett
October 27, 2009 3:47 PM
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@eddieck: The actual article calls them a telecommunications company, which is much more accurate.

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llcooljabe
October 27, 2009 4:17 PM
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@gparlett:


but who actually clicks on the link? I mean, besides you? :-)

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Betsumei
October 27, 2009 3:40 PM
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@eddieck: That was my first thought. Also, where the hell was this company that pays the big bucks when I was stuck doing crummy telemarketing work to pay the bills during my job hunt after school?

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Cant_stop_the_rock
October 27, 2009 3:33 PM
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I think it's sad that people are defending the guy here. If a company did something like this to an individual, you'd all be ready with the pitchforks and torches. The guy kept money that wasn't his. He's a criminal. He deserves the punishment that was recommended.

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10 replies
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mythago
October 27, 2009 6:03 PM
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@gStein_has joined the star bandwagon: \"Sir, I don't understand why you want to press charges against this man for stealing your car and joyriding it around for a month. He didn't damage it, and he's willing to reimburse you for the mileage.\"

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ecwis
October 27, 2009 3:55 PM
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@Cant_stop_the_rock: If he hasn't spent any of the money, then he's not a criminal. The article only says that he \"banked\" the money and says nothing about spending it.

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floraposte
October 27, 2009 5:31 PM
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@ecwis: The law differs from you on that, and they go by the law.

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ecwis
October 27, 2009 7:49 PM
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@floraposte: No it doesn't. The law doesn't say you have to return the item, a person is only guilty of theft if \"he converts the property to his own use.\" So if the books are just stored on a book shelf and not read, then I don't think that would be considered theft.

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mythago
October 27, 2009 8:14 PM
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@ecwis: Yes, it would be. You don't think those books look nice on my bookshelf? And that Loeb Library edition you paid for sure does impress my friends.


The point of the law is to distinguish between people who get things misdelivered to them and don't try to keep or benefit from the items, and thieves. I'm not a thief just because your package touches my doorstep. I'm also not a thief if I leave it there while I try to get Amazon to pay for the return shipping. I am if I know that the stuff should have gone to \"ecwis, One Libertarian Plaza\", isn't mine and I decide I'm going to keep it.

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ecwis
October 27, 2009 8:23 PM
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@mythago: For people who use books to fill a bookshelf so they look like an intellectual, it may be theft. But for regular people who just use books to read, it wouldn't be theft.

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mythago
October 27, 2009 11:11 PM
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@ecwis: Um, yeah. What floraposte said. I don't think you want to understand what the law means.

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floraposte
October 27, 2009 11:02 PM
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@ecwis: Again, I think you're arguing about what would feel like theft to you, not basing it on how the law views \"use.\"

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ecwis
October 27, 2009 11:59 PM
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@floraposte: I'm basing it on the applicable NJ statute. Storing a book is not converting the property for one's own use. Do you have any reasoning that is supported by NJ law?

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billy
October 28, 2009 4:14 PM
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@ecwis: This link appears to be jury instructions for the crime: [www.judiciary.state.nj.us]

Conversion in NJ (and most other places) is defined pretty broadly.

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exploded
October 27, 2009 4:20 PM
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@ecwis: If I called the bank, claiming that you had authorized me to withdraw funds from your account, and the bank sent me your money, would you consider it theft, even if I never spent a penny of it?


I definitely would.

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ecwis
October 27, 2009 4:32 PM
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@exploded: Oh, I didn't read your entire comment. Under NJ law, that would be considered theft as well. Here's the applicable statute:


2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.
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mythago
October 27, 2009 4:17 PM
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@ecwis: Really? So if the UPS guy accidentally delivers me your Amazon order by mistake, it's perfectly OK for me to keep the books on my shelf and it's not theft if I haven't gotten around to reading them?


If I convince the valet that your nice Jaguar is actually my car, that's perfectly legal as long as I don't drive it anywhere?


You don't actually have to be a lawyer to get that this is illegal, y'know.

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ecwis
October 27, 2009 4:27 PM
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@Cant_stop_the_rock: In that case, he's a criminal.

@mythago: It's perfectly fine to keep the books until Amazon realizes their mistake and asks for the books back. It's not your responsibility to return them especially since it may cost more money than the value of the books. Jaguar incident is fraud.

@exploded: I wouldn't consider it theft, I'd consider that fraud.

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TheWillow
October 27, 2009 3:53 PM
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@Cant_stop_the_rock: I don't think people are defending the guy so much as they are sarcastically pointing out the hypocrisy in company interactions with individuals.

Yeah, we'd be up in arms if the company did this to an individual, and the company would totally get away with it. While two wrongs don't make a right, it's a little hard to get worked up about the injustice against the corporation, since, well, justice is being served.

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sleze69
October 27, 2009 3:47 PM
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@Cant_stop_the_rock: Are you serious? There are stories like this posted everyday where companies keep their customer's money. How often are the CEO's of those companies convicted of theft and sent to jail for 6 years?

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Cant_stop_the_rock
October 27, 2009 4:00 PM
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@sleze69:

Yes I'm serious. I don't condone it when companies take money they're not entitled to. It usually doesn't fit the legal definition of theft, but it still isn't right. This guy's actions did fit the legal definition of theft, and it's appalling that people would defend him.

@ecwis:
He spent it

[www.nj.com]

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floraposte
October 27, 2009 3:53 PM
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@sleze69: He called up the company, claimed to be an employee, and asked for an early transfer of \"his\" money. It's not exactly analogous.

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YouDidWhatNow?
October 27, 2009 3:33 PM
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There's plenty of reasons why it's not legal for him to keep the money...while IANAL, I would think at least there's a breach of contract or something like that.


Employers pay employees for their labor. If you don't provide any labor, you aren't entitled to any pay. So if you receive pay without having provided any labor, you're not entitled to keep it.

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2 replies
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thezone
October 27, 2009 3:40 PM
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@YouDidWhatNow?: I don't think it was ethical for him to keep the money. I'm wondering how it was theft? I think they are entitled to their money back but I would assume this would be handled through civil law not criminal law.

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Cant_stop_the_rock
October 27, 2009 3:48 PM
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@thezone:

2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.

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blash
October 27, 2009 8:28 PM
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@Cant_stop_the_rock: \"and with purpose to deprive said owner thereof.\"

Meaning, if:
1) I send you $500 by accident
2) You put it under your mattress
3) I come by afterwards and ask for it back
4) You say \"I won't give it back to you because of you and not because of me because your company was a shitty company to work for and you made my girlfriend leave me and you sell weapons to terrorists...\"

Then that's theft. But if in 4) the guy says \"sorry, I thought it was a gift so I spent it, if I had any left I'd give it back to you\" then that's not theft because he didn't mean any harm to the person who gave it to him by mistake.

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billy
October 28, 2009 4:09 PM
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@blash: But holding on to the money for years in an interest-bearing account (or otherwise, for that matter) sure does sound like it would fit the elements.

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thezone
October 27, 2009 3:59 PM
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@Cant_stop_the_rock: Thank you. Since he knew the money was being delivered by mistake it became criminal. Great find.

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treimel
October 27, 2009 4:16 PM
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@thezone:
It's worse than that-he speciofically callefd them and asked for a transfer of \"his\" money. He's a plain old thief.

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shepd
October 27, 2009 3:35 PM
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What kind of job at a telemarketers pays over $100,000 a year AFTER taxes minus the bonus?

That's ridiculous. Telemarketers in my city pay about $20k a year, sometimes $30k if you're good at selling.

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krom
October 27, 2009 7:11 PM
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@shepd: This. I'd be an obnoxious cold-calling script-reading asshole on the phone all day for that kind of money!

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morlo
October 27, 2009 4:43 PM
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@shepd: What kind of idiot who can get a 100k/year job screws up his lifetime chances of employment over a something that he knows he will get caught for

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Applekid
October 27, 2009 3:45 PM
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@shepd: I guess they never got any complaints about him and nobody that signed up under him ever canceled!

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thezone
October 27, 2009 3:38 PM
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@shepd: Avaya is a telecommunications company not a telemarketing company.

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shepd
October 27, 2009 4:25 PM
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@thezone:

Hmm, I know they made phones, I just assumed they telemarketed them as well due to the editor's statement:

Anthony accepted a job at New Jersey telemarketing company Avaya Inc.
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usa_gatekeeper
October 27, 2009 3:36 PM
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My US company reimbursed a Canadian employee for his expense reports over a long period of time .... they didn't figure out that while he was reporting expenses in Canadian Dollars, they were reimbursing him in US Dollars. [It was at an advantage to the employee at the time].

The employee never said anything so this went on for several years until he changed jobs. The company later figured it out and tried to get money back from him, but failed. I still laugh about it.

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Betsumei
October 27, 2009 3:41 PM
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@usa_gatekeeper: Was their accounting department run by the guys in charge of metric conversion at NASA?

(What, is that joke old now?)

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theblackdog
October 27, 2009 3:37 PM
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Unfortunately the article doesn't say it, but what the hell was he doing during the time he was getting the money? He had to have noticed he was getting free cash, did he ever bother to find out why?

I am guessing he didn't bother or he did and decided to take the money anyway, so yeah, it's fraud.

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GTI2.0
October 27, 2009 3:37 PM
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Avaya isn't a telemarketing company, they make telephone systems. They used to be part of AT&T and were spun off when they also spun off Lucent.

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oneliketadow
October 27, 2009 4:33 PM
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@GTI2.0: Ditto what he said. You could also call Apple, Sprint, Nokia, Motorola, Lucent, Nortel, and Cisco telemarketing companies with that logic.

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AustinTXProgrammer
October 27, 2009 3:46 PM
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@GTI2.0: Actually they stayed part of Lucent in that spin off, and then spun off from Lucent later.

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Esquire99
October 27, 2009 3:38 PM
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It seems to me that there is a fairly clear difference between this and the situation in which you get a free toaster, magazine, etc. in the mail. For one, FTC regulations explicitly allow you to keep these \"gifts\" that are mailed to you. Here, the issue isn't a \"gift\" that you'll later be billed for, but a payroll check that he filled out paperwork to receive. Essentially, he had an active part in initiating the disbursements of the checks, and he had every reason to know they were being sent in error. Further, it's not clear but it seems they might have been direct deposited directly into his account. I suspect, though I can't say for sure, that this definitively removes it from the scope of the FTC rules. I also suspect that the fact there was at least a short prior relationship before the deposits began may have some significance.

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mythago
October 27, 2009 3:43 PM
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@Esquire99: I can't see how FTC rules would apply at all. The FTC rules are to prevent people from sending you things you didn't want and then demanding payment.

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Esquire99
October 27, 2009 3:50 PM
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@mythago:
I agree. I just didn't want to make a definitive statement without pulling and reading the FTC rule. I do find it interesting that some people think that a \"free\" toaster and $400k+ in checks/direct deposits are analogous.

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mythago
October 27, 2009 4:18 PM
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@Esquire99: Yeah, but this is the Internet. Some people think it's OK to pirate software as long as you click on the file three times chanting \"Cory Doctorow, Cory Doctorow, Cory Doctorow\".

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floraposte
October 27, 2009 3:54 PM
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@Esquire99: The Star-Ledger article gives a bigger picture that reveals the recipient was not only knowing but active: [www.nj.com]

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JohnQPublic
October 27, 2009 3:38 PM
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In a related note, you don't have to actually break anything to be charged with \"breaking and entering\".

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qwickone
October 27, 2009 7:06 PM
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@JohnQPublic: I think the \"breaking\" part refers to breaking the perimeter.

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Cant_stop_the_rock
October 27, 2009 3:50 PM
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@JohnQPublic:

If you're going to be charged with it, I guess you might as well break some stuff, right?

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ilves
October 27, 2009 3:39 PM
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Well, he definitely owes them the money back. I'm not sure about filing charges against him UNLESS they asked for it back first and he did not return it. If the company did that I think they're free and clear to file charges. He knowingly accepted money that he knew he was not supposed to receive.

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mythago
October 27, 2009 3:44 PM
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@ilves: If I steal your car, you don't have to ask me to give it back before you call the police.

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Esquire99
October 27, 2009 3:52 PM
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@mythago:
\"Police Station\"
\"Yes, someone stole my new car. They took it right from my driveway.\"
\"Sir, have you contacted the thief and politely asked him to return the car to you?\"
\"Well no, he's a thief, why would I do that?\"
\"Sir, I'm sorry, but we can't help you until you politely ask the thief to return the car.\"

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samurailynn
October 27, 2009 5:38 PM
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@Esquire99: I'll preface this by saying that I don't think the guy deserves to keep the money, but let's look at it this way...

\"Police Station\"
\"Hello - I wanted to report a theft. My next door neighbor stole my baseball and my frisbee.\"
\"Did you see them take the items?\"
\"Well, I didn't see the individual, but the items went into their fenced backyard after I tossed them in the air.\"
\"Have you tried asking your neighbor to give them back?\"
\"Well no, my neighbor is a thief, why would I do that?\"

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mythago
October 27, 2009 6:04 PM
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@samurailynn: Not following the analogy. You don't \"see\" an individual receive money from a paycheck or direct deposit into their bank account.

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samurailynn
October 29, 2009 3:29 PM
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@mythago: But the company sent him money, just as a person might throw a ball into someone else's yard. Like I said, he didn't have the right to keep the money, but it's also not his responsibility to track down the company and make sure they get their money back. I'm really just saying the company should at the very least ask for the money back before they sue/press charges.

It's quite a bit different than a person actively breaking into a car on someone else's property, hot wiring it to get it started, and then driving away with it.

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mythago
October 27, 2009 5:10 PM
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@Esquire99: There are actually places where a 911 call probably goes like that.

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mazzic1083
October 27, 2009 4:00 PM
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@Esquire99: That seems to work in most school playgrounds, maybe we should have cops be more like teachers stuck on recess duty

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diasdiem
October 27, 2009 3:40 PM
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Did he by any chance look like this?

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Thaddeus
October 27, 2009 3:41 PM
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$470,000 over five years would be 94 grand a year. Is my math right? That job paid $94K a year? For telemarketing? Someone tell me that I've overestimated.

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3 replies
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Cant_stop_the_rock
October 27, 2009 4:02 PM
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@Thaddeus:

Not telemarketing; Avaya is a telecomm company. His salary was $107k.

[www.nj.com]

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Thaddeus
October 27, 2009 4:59 PM
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@Cant_stop_the_rock: Your name is apt. You cannot be stopped. Thanks.

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JollyJumjuck
October 27, 2009 4:39 PM
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@Cant_stop_the_rock: Thanks for the link.
FTA: \"Armatys had collected nearly a half-million dollars, using the money for everyday expenses\"

Everyday expenses? Did this guy eat fois gras and get limo rides everywhere?

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leastcmplicated
October 27, 2009 3:43 PM
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I cant believe people are siding with the guy. Just because a company make a mistake doesnt entitle you to say nothing. Hows this any different than accidentally taking someone's bag at the grocery store, realizing it and doing nothing about it? He did nothing wrong? wow, thats *really* stretching it.

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Skaperen
October 27, 2009 6:21 PM
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@leastcmplicated: Asking for the money back is one thing. And maybe they did. But charging him with a crime ... tell me what the crime is ... is it a crime to receive free money?

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coren
October 27, 2009 6:51 PM
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@Skaperen: It was more that he tried to pull more money from them that he wasn't entitled to - there are links to where he asked the bank to give him more cash.

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Ratty
October 27, 2009 6:32 PM
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@Skaperen: it wasn't free money. it wa s apayroll error. And yeah, it IS a crime to knowingly take money not meant for you.

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DefineStatutory
October 27, 2009 3:45 PM
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Remember kids...if a company you don't work for gives you half a million over a coulpe of years, you should probably call someone.

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2 replies
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Skaperen
October 27, 2009 6:22 PM
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@DefineStatutory: I'll call my long lost cousin who's trying to smuggle his $21.3 million out of Nigeria.

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nbs2
October 27, 2009 3:46 PM
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Did they try to ask for the money back or did they just go straight to the lawsuit? Can't the SFC get at least that much before reporting this?

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billy
October 27, 2009 4:50 PM
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@nbs2: He wasn't sued. He was prosecuted. This article talks about how it took 11 months from discovery of the crime to do the investigation and arrest him. [www.cfo.com]

The charge was theft by deception.

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Skaperen
October 27, 2009 6:25 PM
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@billy: How is this theft? What did he steal?

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Ratty
October 27, 2009 6:33 PM
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@Skaperen: nearly a half of a million dollars. I can't fathom how you're not getting this.

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coren
October 27, 2009 6:53 PM
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@Ratty: I can't speak for anyone but myself, but it's very counterintuitive that if I'm uninvolved in the action, if something is given to me, that I could be stealing. In New jersey, the law says that him not telling the company/returning the cash is theft - in other states it might not.

Which doesn't make it ok, or morally acceptable, but I can understand why some are finding it hard to see it as theft.

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Ratty
October 27, 2009 9:58 PM
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@coren: That's the thing. it wasn't given to him. it was misplaced money that should have never been there. A gift's a gift--this wasn't a gift in any way. The man knew damn well it wasn't legitimately his money.

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coren
October 27, 2009 10:28 PM
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@Ratty: It was given to him - it wasn't intended as a gift, but they did give it to him. My work gives me a paycheck every two weeks, but it's not a gift either.

But like I said, it's not morally/ethically right what he did, just that it's easy to see why people have difficulty seeing it as theft.

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Ratty
October 27, 2009 10:51 PM
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@coren: No, it as in no way legally given to him. it was misplaced in his account. Your workplace knowingly and intentionally allows you to have a paycheque. had this company known, they wouldn't have been depositing. they were unknowingly continuing to place money into that man's bank account and the man knew exactly that he was never entitled to the cash.


It's really *not* easy to confuse the issue if you think.

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coren
October 28, 2009 12:31 AM
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@Ratty: It was legally given to him, his keeping of it was illegal - but it wouldn't be in every state, nor is it very intuitive to think \"someone gives me money, even by mistake, that's theft!\". Which is what this case boils down to (well that and his blatant attempt to draw money from whatever company account he tried to pull from)

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billy
October 28, 2009 4:02 PM
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@coren: The New Jersey ordinance he was charged with has been posted in these comments repeatedly. Theft of mislaid property comes from English common law and most (all?) states have laws against it.

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coren
October 28, 2009 4:24 PM
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@billy: I'm aware, that's why I specified.

It's still very counterintuitive to think it's stealing when you don't give back something that was given to you by mistake (and they don't ask for it back). Which isn't to say it's morally acceptable in any way, but just that it makes sense to me that people wouldn't think of it as theft.

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billy
October 28, 2009 4:05 PM
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@billy: 2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.

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floraposte
October 27, 2009 3:50 PM
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@nbs2: The SFC didn't report it--it's a wire report from the AP, which virtually all accounts of this are. The NJ Star-Ledger at least offes a little more depth: [www.nj.com]

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edosan
October 27, 2009 3:49 PM
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Wow -- whatever Avaya does, I'm assuming they do it as well as they do their payroll.

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dfens42
October 27, 2009 4:06 PM
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This is like a reverse Milton Waddams scheme, I LOVE IT!

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JGKojak
October 27, 2009 4:19 PM
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He is guilty of fraud, not \"theft\".


I would argue:
1) There is SOME mutual responsibility here. The company are a bunch of nitwits for employing/paying a guy they didn't have working for them. The guy is certainly at fault for not bringing attention to the issue.


2) The company should have filed a civil claim. Sending the guy to jail seems like it will make it HARDER for him to pay the money back.


3) He should only be responsible for half the money. The company should take the loss as having some responsibility for being idiots in the first place.

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3 replies
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billy
October 27, 2009 4:53 PM
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@JGKojak: >>>The company should have filed a civil claim. Sending the guy to jail seems like it will make it HARDER for him to pay the money back.

How do you figure? In my experience, the threat of jail time makes it MUCH easier to get the money back. Nobody wants to go to jail. People will gladly pay back their ill-gotten gains to avoid it.

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mythago
October 27, 2009 5:10 PM
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@billy: Plus, if you file the civil suit AFTER you have a criminal conviction, it's much easier to win.

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treimel
October 27, 2009 5:14 PM
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@mythago:
No need here:
restitution was part of the plea deal--having the money paid back as part of a criminal sentence is about a million times better than a lawsuit.

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mythago
October 27, 2009 6:07 PM
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@treimel: Oh, I agree. Just that if you're going to do both, it makes sense do to criminal first.

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mythago
October 27, 2009 4:33 PM
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@JGKojak: No, he is guilty of theft. \"Your victim was an idiot\" is not a defense to theft.

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ben
October 27, 2009 4:32 PM
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i wonder if he paid taxes on this money

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4 replies
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rpm773
October 27, 2009 4:46 PM
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@ben: I was wondering that myself. But here's one: Could he be held accountable for back taxes on monies received in an ill-gotten manner such as this?

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JollyJumjuck
October 27, 2009 4:44 PM
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@ben: Not likely. Someone who has the gall to fraudulently take $94K a year for \"everyday expenses\" probably doesn't bother with little things like income tax.

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[DFX] Deimos
October 27, 2009 4:46 PM
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I would have put the money in an interest bearing account and then kept the interest!

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treimel
October 27, 2009 5:15 PM
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@[DFX] Deimos:
which you would have had to disgorge either 1) as part of the restitution that he was ordered to pay in this case, or 2) sued for unjust enrichment. Honestly, courts take a very, very dim view of both the direct and indirect proceeds of crime.

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mythago
October 27, 2009 5:11 PM
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@[DFX] Deimos: And then you would have been guilty of theft too!

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PrimeMovr
October 27, 2009 4:57 PM
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Eee's a witch, burn him!!

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pittpanther
October 27, 2009 5:16 PM
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I wonder if the IRS is paying attention. Did he pay taxes on this (extra) income?

What an idiot. If he didn't want to return the money, he should have placed every extra penny into a separate account - if Avaya ever came a'calling, he could easily say \"Here's all your money.\"

He never should have touched the retirement account. He should have considered that to be \"lost money\" - a cost of doing business...

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mythago
October 27, 2009 8:18 PM
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@pittpanther: Or he should have called them and said \"Hey, you guys are still sending me money.\"

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jswilson64
October 27, 2009 5:38 PM
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@pittpanther: Hmm, if he had, would he be getting that money back now, since he didn't actually earn it or get to keep it?

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Orv
October 27, 2009 6:48 PM
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@jswilson64: Good question. I suppose he could file amended returns for the years he paid taxes on the money.

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pittpanther
October 27, 2009 6:51 PM
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@Orv: But this is getting pretty ugly, because if he DID pay taxes, he paid using the illegally-gained income. So most likely, he would need to file to get the money back, but it will all go to Avaya.

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sevenwhitehorses
October 27, 2009 5:52 PM
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one does not always loose in accepting a check. i friend of mine was the vp of a large bank in hawaii and he related a time a check was sent out to someone. the letter was mistakenly put into a PO box of another person with the same name but different box number. the bank tried to get the money back but the court found in favor of the individual who cashed the check.

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Mr.Duke
October 27, 2009 6:13 PM
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This story sounds phony. That being said, Anthony is a criminal. He knew he had no business getting that money. One phone call to the company would have ended the fraud. ... this story is similar to the guy that continued to accept his dead mother's social security checks. He never called the social security dept. to say his mother died. ... after the few years, social security figured out the scam and the crook is serving time in jail.

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Malicious A
October 27, 2009 6:53 PM
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lol. this reminds me of the time about a year ago that i switched job codes. We were able to see our pay stubs, before the checks came out so I checked it. And about fell out of my chair when I noticed they were going to pay me $36,000. The funniest part was, they didn't include both weeks in the paycheck. so that was for one week.

First thing the next morning, I was on the phone with payroll telling them to cancel the check and I actually had to explain to them why $36,000 was wrong.

i knew that taking the money would have been WRONG. This guy clearly knew he was receiving the money and shouldn't have taken it. he knew he was wrong or he wouldn't have plead guilty. After all, pleading guilty is an admission of guilt. funny how that works.

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2 replies
October 27, 2009 7:03 PM
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I can see how he got himself in trouble by pleading GUILTY, but I don't see how this is THEFT at all.
Unless, that is, he wasn't an \"at will\" employee, and had a contract saying they would pay him only if he provided his time/service, but even then said contract would/should have been void once the company and he had agreed that he wouldn't be working.

I mean, any unsolicited items sent to you are by law yours to keep. And being that electronic deposits are merely an extension of mailed checks, why unsolicited deposits are considered THEFT is beyond me.
I mean, if that's the case then anyone that uses PayPal or ING or another service that deposits <$1 as a verification method would be liable, right?

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2 replies
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billy
October 28, 2009 4:06 PM
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@2 replies by: 2C:20-6. Theft of property lost, mislaid, or delivered by mistake
A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, knowing the identity of the owner and with purpose to deprive said owner thereof, he converts the property to his own use.

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coren
October 28, 2009 12:33 AM
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@2 replies by: Well for two reasons. In New Jersey, because he knew they didn't intend to pay him, he did commit theft - that's the law there. Whereas \"gifts\" by mail are intended to be yours, then they try to sneakily make you pay.

Also he tried to take money from some retirement account

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pinkbunnyslippers
October 27, 2009 7:12 PM
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$470,000/55 months = $8,575 net pay per month.


Anyone know if Avaya is hiring?

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econobiker
October 28, 2009 7:09 PM
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@pinkbunnyslippers: Probably have reshuffled their accounting department already...

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Gracegottcha
October 27, 2009 7:18 PM
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Maybe he could have kept all of the money in the bank and returned it when they caught on, keeping the interest. That would be some pretty good interest I guess.

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coren
October 28, 2009 12:34 AM
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@Gracegottcha: IANAL, but that'd be illegally gotten gains and would go to the company too, or would be seized by some law enforcement agency

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Wang_Chung_Tonight
October 27, 2009 8:36 PM
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I'm going to drop a twenty in a misc men's room and note the serial number. then when someone uses it I'm going to sue them. Thanks for the plan!

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MyPetFly
October 27, 2009 8:37 PM
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Anybody else here thinking of George Costanza and his non-existent job?

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scoosdad
October 28, 2009 4:10 AM
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@MyPetFly: The Penske file! (Useless Trivia: second reference to that episode on Consumerist this week.)

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nstonep
October 27, 2009 10:09 PM
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They should've caught this in YEAR 1. Though most of avaya's services are akin to independent contractor work. Dude is a moron for keeping the money; it's not like it was 5 bucks a month, it was about 75k a year. He should go to jail.

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Ronin-Democrat
October 28, 2009 12:26 AM
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since they had his account info and likely had his social number he accepted and went to the job at least one day.

My question is, did he pay taxes on the income.

He should have gotten a better lawyer and had it knocked down to a civil case with a confidentiality agreement and give them 50% of the money back.....

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econobiker
October 28, 2009 7:11 PM
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@Ronin-Democrat: He probably was paying taxes on the money if he had filled out all of the paperwork enough to have 401k IRA type deductions.

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coren
October 28, 2009 12:35 AM
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@Ronin-Democrat: Not necessarily - at my last job (for the state) I filled all that stuff out before I started (h ad the option to do so after, but chose to do it beforehand when I had the time).

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Carlee
October 28, 2009 1:41 AM
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The guy shouldn't have kept the money, but that is one messed up company. Don't they have some kind of timekeeping system tied with their payroll system so that people don't just get paid willy-nilly?

A bunch of comments ago, there was a discussion about whether keeping a book on your shelf without reading it would count as theft, as opposed to reading the book. I guess there may be a distinction, because what if you find an item and hold on to it, waiting for someone to claim it? Like a lost-and-found? You shouldn't be charged with being in possession of a stolen item, even if the item was stolen from the original owner. So \"intent\" is probably part of the definition - if you pretend to be an employee (as this guy did, when he tried to cash in retirement or whatnot), then it would be a crime.

But if the money was direct deposited, and he never touched any of it, he could claim that he didn't know. Sure, might sound dumb that you didn't notice that much extra money, but at least it would be a possible (though not probable) defense.

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econobiker
October 28, 2009 7:21 PM
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@Carlee: If you have a stolen item you can be charged with its possession unless you can prove that it was frauduently sold to you. Even if you can prove that you did not know the item was stolen you still lose it to the original owner.


Case in point people who purchase VIN cloned vehicles which are found out. Typically these people purchase the vehicles fair and square, the titles are legit but the vehicle has fake VIN's made up and applied on it. The people lose the money they gave to the seller (even if that seller didn't know it was cloned which is sometimes what happens when a dealer sells a clone VIN car) and lose the vehicle in lue of being prosecuted for posession of a stolen vehicle.


This has even happened in the case of vehicles stolen decades before - several cases involving 1960's to early 1970's Corvettes and at least one 1960's Mustang ended up this way. Even though these vehicles passed through multple owners the terminal final owner loses the vehicle to the original owner from whom it was stolen.

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econobiker
October 28, 2009 7:25 PM
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Question: If, prior to the investigation, this guy had sent a notice informing the company that he had quit and separated from the company would have they ever figured the problem out?


It looked like he got greedy by trying to access his retirement account for an early withdrawl which triggered the investigation.


With a documented letter to HR that he was separating from them he could have probably cashed out his retirement account with no problem though the free money train would have ended...

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