The term "embezzlement" means the unlawful taking or conversion by a
to his/her own use of the monies, funds or credits which came into that
custody or possession lawfully by virtue of his/her office or employment.
See United States v. Northway, 120 U.S. 327 (1887); FIF Manual
142. If embezzlement is charged, the conversion alleged may not be to some
party other than the embezzler himself/herself. See United States
Williams, 478 F.2d 369 (4th Cir. 1973). Rather, abstraction or
misapplication should be charged when there is a third-party beneficiary.
a jury question whether or not the defendant had sole access to the funds so
to support a charge of embezzlement. See United States v.
677 F.2d 1014, 1016 (4th Cir. 1982).|
Abstraction is the act of wrongfully taking or withdrawing monies,
funds or credits with the intent to injure or defraud the bank or some other
person, and without the bank's knowledge or consent, or that of its board of
directors, and converting them to the use of oneself or some other person or
entity other than the bank. The word "abstract" has long been a term of
simple and unambiguous meaning. See United States v.
441 F.2d 281 (10th Cir. 1971), cert. denied, 404 U.S. 843 (1971);
Norway, 120 U.S. at 335.
There has apparently been only one case which discussed
in the context of 18 U.S.C. § 656, and the court therein accepted the
definition that has applied to other criminal statutes, Archambault,
F.2d at 282. "Purloining is a species of larceny that fills the gap between
sometimes doubtful common law definition of larceny and the modern criminal
definition of larceny.þ See Id. at 283, citing, United
v. Handler, 142 F.2d 351 (2d Cir. 1944); Crabb v. Zerbst, 99 F.2d
(5th Cir. 1938).
Although "misapplication" has no precise meaning, it has been
as a willful and unlawful misuse of monies, funds or credit of the bank made
intent to injure or defraud the bank. See Hernandez v. United
States, 608 F.2d 1361 (10th Cir. 1979); United States v. Garrett,
F.2d 489, 491 (5th Cir), cert. denied, 393 U.S. 952 (1968). See
also United States v. Moraites, 456 F.2d 435, 441 (3d Cir. 1972),
cert. denied, 409 U.S. 891 (1972).
"The misapplication of funds proscribed by 18 U.S.C. § 656
when funds are distributed under a record which misrepresents the true state
the record with the intent that bank officials, bank examiners or the
Deposit Insurance Corporation will be deceived." United States v.
Twiford, 600 F.2d 1339 (10th Cir. 1979) quoting, United States v.
Kennedy, 564 F.2d 1329, 1339 (9th Cir. 1977), cert. denied, 435
A majority of the United States Supreme Court held that the Federal
Bank Robbery Act, which proscribes the "taking and carrying away" of bank
property with an intent to steal, 18 U.S.C. § 2113(b), is not limited
application to common-law larcenies and that the statute can also be applied
some instances of obtaining money under false pretenses. See Bell
United States, 462 U.S. 356 (1983). The majority carefully point out,
however, that the statute would not apply to a false pretenses case when
is no taking and carrying away.
[cited in USAM 9-40.000]