§ 752.3 Which offenses qualify as “Covered Offenses” under section 205(d)?

(a)

Categories of Covered Offenses.

The conviction or program entry must be for a criminal offense involving dishonesty or breach of trust.

(1) The term

criminal offense involving dishonesty

—

(i) Means an offense under which an individual, directly or indirectly—

(A) Cheats or defrauds; or

(B) Wrongfully takes property belonging to another in violation of a criminal statute;

(ii) Includes an offense that Federal, state, or local law defines as dishonest, or for which dishonesty is an element of the offense; and

(iii) Does not include—

(A) A misdemeanor criminal offense committed more than 1 year before the date on which an individual files a consent application, excluding any period of incarceration; or

(B) An offense involving the possession of controlled substances. At a minimum, this exclusion applies to criminal offenses involving the simple possession of a controlled substance and possession with intent to distribute a controlled substance. This exclusion may also apply to other drug-related offenses depending on the statutory elements of the offenses or from court determinations that the statutory provisions of the offenses do not involve dishonesty or breach of trust as noted in paragraph (b) of this section. Potential applicants may contact their appropriate NCUA field office if they have questions about whether their offenses are covered under section 205(d).

(iv) The term

offense committed

in paragraph (a)(1)(iii)(A) of this section means the last date of the underlying misconduct. In instances with multiple offenses,

offense committed

means the last date of any of the underlying offenses.

(2) The term

breach of trust

means a wrongful act, use, misappropriation, or omission with respect to any property or fund that has been committed to a person in a fiduciary or official capacity, or the misuse of one's official or fiduciary position to engage in a wrongful act, use, misappropriation, or omission.

le offenses,

offense committed

means the last date of any of the underlying offenses.

(2) The term

breach of trust

means a wrongful act, use, misappropriation, or omission with respect to any property or fund that has been committed to a person in a fiduciary or official capacity, or the misuse of one's official or fiduciary position to engage in a wrongful act, use, misappropriation, or omission.

(b)

Elements of the offense.

Whether a crime involves dishonesty or breach of trust will be determined from the statutory elements of the offense itself or from court determinations that the statutory provisions of the offense involve dishonesty or breach of trust.

(c)

Certain older offenses excluded

—(1)

Exclusions for certain older offenses.

Section 205(d) does not apply to an offense if—

(i) It has been 7 years or more since the offense occurred; or

(ii) The individual was incarcerated with respect to the offense, and it has been 5 years or more since the individual was released from incarceration.

(iii) The term

offense occurred

means the last date of the underlying misconduct. In instances with multiple Covered Offenses,

offense occurred

means the last date of any of the underlying offenses.

(2)

Offenses committed by individuals 21 years of age or younger.

For individuals who committed an offense when they were 21 years of age or younger, section 205(d) does not apply to the offense if it has been more than 30 months since the sentencing occurred. The term

sentencing occurred

means the date on which a court imposed the sentence (as indicated by the date on the court's sentencing order), not the date on which all conditions of sentencing were completed.

(3)

Limitation.

This paragraph (c) does not apply to an offense described under 12 U.S.C. 1785(d)(2).

ot apply to the offense if it has been more than 30 months since the sentencing occurred. The term

sentencing occurred

means the date on which a court imposed the sentence (as indicated by the date on the court's sentencing order), not the date on which all conditions of sentencing were completed.

(3)

Limitation.

This paragraph (c) does not apply to an offense described under 12 U.S.C. 1785(d)(2).

(d)

Foreign convictions.

Individuals who are convicted of, or enter into a pretrial diversion program for, a criminal offense involving dishonesty or breach of trust in any foreign jurisdiction are subject to section 205(d), unless the offense is otherwise excluded by this subpart.