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Theft by Deception is a Continuous Offense

March 7, 2014 | Posted In Criminal Law

Last month, the New Jersey Supreme Court issued a ruling that makes theft by deception a continuing offense, and can be sentenced as such in court. Determining that theft by deception can be a long-term criminal plan, the Supreme Court justices effectively redefined this type of criminal activity, criminal attorneys in New Jersey say. 

In 2005, Joseph Diorio was convicted for his part in an elaborate plot to swindle almost $2 million from produce wholesalers, in a planned bankruptcy, or “bust out” scheme. Along with two other men, David Menadier and Michael Fava, Diorio created Packed Fresh Produce Inc, in 1999, and used the business to place increasingly large produce orders with local wholesalers. When the company sold the produce they received, they repeatedly never paid the wholesalers. In less than a year, the company had stolen nearly $2 million in produce, with no intent to pay back their providers. After the last order was shipped in January of 2000, Diorio owed payment for a year’s worth of produce by January 27th, 2000. 

In the ensuing investigation, Diorio was arrested and charged with theft by deception and money laundering. Diorio was given a 22-year aggregate sentence, and ordered to pay back $1,983,281 to the wholesalers he had defrauded. On appeal, Diorio claimed that the statute of limitations had expired on both the theft by deception and the money laundering, based on the date that Packed Fresh stopped doing business in January of 2000. All criminal charges had to be filed within five years, and he argued that the date was missed by a matter of days. 

Although the state Supreme Court did overturn the conviction for theft by deception and the 7-year-prison sentence that was assessed, based on the accuracy of Diorio’s claim about the statute of limitations, they established a different timeline for the money laundering charges, finding that checks were still drawn from the fraudulent company’s account as late as March of 2000. Diorio’s fifteen-year sentence for those charges was not overturned. 

In their ruling on Diorio’s appeal, the state Supreme Court judges established the continuing nature of a theft by deception charge, and of money laundering that is done as part of the deception. Diorio’s theft by deception, in ordering produce from a variety of wholesale providers, and then failing to pay for the goods, was a continuing criminal act, spanning several months, and “generat[ing] harm that continues uninterrupted until the course of conduct ceases,” the judges wrote. 

“Theft by deception is not always an isolated event but may actually be a complex scheme involving many persons or business and play out over the course of many days, weeks, months, or even years,” Judge Mary Cuff wrote for the court’s ruling. In Diorio’s scheme, he set up a false company to steal products and earn profits off the stolen goods over an extended period of time. Even though his conviction was overturned because of the missed statute of limitations, New Jersey criminal attorneys say that the determination of long-term theft will have an impact on theft by deception cases in the future.

At New Jersey law firm Helmer, Conley, and Kasselman, PA, our criminal attorneys represent anyone who has been charged with ongoing criminal activity, including theft by deception and illegal monetary handling. Contact an HCK attorney today for a consultation about your case. 

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