Proof Problems in Section 641 Prosecutions
Prosecutions under 18 U.S.C. § 641 encounter several recurring
problems of proof. For example, in some cases the property which is alleged
have been taken either no longer exists or cannot be found. In these
proving government ownership of the property can present significant
At the outset, it is clear that "(t)o prove the corpus delicti it
not required to identify the recovered property as stolen or even to recover
stolen property." See Mora v. United States, 190 F.2d 749,
(5th Cir. 1951). Thus, proof of government ownership of stolen property can
entirely on circumstantial evidence as in United States v. Donato,
Supp. 921 (E.D.Pa.), aff'd, 379 F.2d 288 (3d Cir. 1967). See
Teel v. United States, 407 F.2d 604 (8th Cir. 1969). The situation
the corpus delicti must be proved by circumstantial evidence
rare and presents far greater problems than the situation where the only
is the defendant's participation in the offense. The latter situation is
of theft of government property cases and the courts of appeals have
upheld convictions based only on circumstantial evidence. See
United States v. Parks, 384 F.2d 714 (4th Cir. 1967);
O'Malley v. United States, 378 F.2d 401 (1st Cir.),
denied, 389 U.S. 1008 (1967).
Receiving stolen property cases also frequently share a common
of proof. In many instances, the government's proof consists largely of
showing that the defendant had in his possession goods which were recently
stolen. The evidentiary impact of possession of recently stolen property,
practical matter, is obvious, but the technical label for this impact has
stated in various ways. A good statement of the current status of the
be found in Aron v. United States, 382 F.2d 965, 971 (9th Cir. 1967).
See also United States v. Fench, 470 F.2d 1234 (D.C. Cir.),
cert. denied, 410 U.S. 909 (1972). Thus, possession of recently
goods is a factor from which a jury may infer that the defendant has
received stolen property.
In embezzlement cases certain types of circumstantial proof are
admissible to establish a wrongful taking of property entrusted to the
In fact, Congress has, by statute, prescribed some forms of circumstantial
in these cases. Under 18 U.S.C. § 3487, a refusal to pay the General
Accounting Office by a person charged with the safe-keeping of public money
prima facie evidence of embezzlement. The effect of this statute is
merely to restate the principle that the corpus delicti may be proved by
circumstantial evidence, and it does not relieve the prosecution of the
of proving criminal intent. See Shaw v. United States, 357
949, 958 (Ct.Cl. 1966). The necessity of proving a formal demand for an
accounting and a refusal to account is eliminated when the time for payment
the money was fixed and the payment was not made within that time.
Taylor v. United States, 320 F.2d 843, 850 (9th Cir. 1963), cert.
denied, 376 U.S. 916 (1964). A transcript from the books and
the General Accounting Office is prima facie evidence of a balance against a
person charged with embezzling public funds. See 18 U.S.C. §
Another common method of proof in embezzlement cases is the net
or cost of living technique in which the defendant's admitted income is
with his assets and expenditures: "clearly, evidence of large expenditures
acquisition of large unexplained sums of money, during the time charged as
which the embezzlement took place, is some evidence of such embezzlement."
See Hansberry v. United States, 295 F.2d 800, 807 (9th Cir.
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