Failure to remit withheld wages for health insurance premiums can lead to several serious consequences for the plan fiduciaries. The criminal prosecution of this conduct typically occurs under 18 U.S.C. 664.
The elements of a Section 664 embezzlement claim include: (1) the unauthorized; (2) taking or appropriation; (3) of union benefit plan funds; (4) with specific criminal intent. In order to have specific criminal intent, the criminal act must have been willful, which means an act done with a fraudulent intent or bad purpose or an evil motive. (See United States v. Andreen, 628 F.2d 1236, 1240-41 (9th Cir.1980))