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1005

Embezzlement

In Moore v. United States, 160 U.S. 268, 269 (1895), the Supreme Court defined embezzlement in the following terms:

    Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in that the original taking was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking.

To prove the crime of embezzlement under 18 U.S.C. §  666(a)(1)(A) the United States must establish the following specific elements in addition to the general elements:

  1. there was a trust or fiduciary relationship between the defendant and the private organization or State or local government agency;

  2. the property came into the possession or care of the defendant by virtue of his/her employment;

  3. the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his/her own use; and

  4. the defendant acted with the intent to deprive the owner of the use of this property.

See United States v. Powell, 294 F. Supp. 1353, 1355 (E.D.Va. 1968), aff'd, 413 F.2d 1037 (4th Cir. 1968); United States v. Dupee, 569 F.2d 1061 (9th Cir. 1978).

The requirement that the defendant act with the intent to deprive the owner of his property makes embezzlement a specific intent crime. See United States v. May, 625 F.2d 186, 189-90 (8th Cir. 1980). It should be noted, however, that the intent required to violate the law is not an intent to deprive another of his/her property permanently. Therefore, even if an individual intends to return the property, his/her actions are still illegal. In short, restoration of the property illegally taken is no defense to embezzlement. See Powell, supra at 1355.

[cited in USAM 9-46.100]