1657

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 to have been taken either no longer exists or cannot be found. In these instances, proving government ownership of the property can present significant difficulties. At the outset, it is clear that "(t)o prove the corpus delicti it is not required to identify the recovered property as stolen or even to recover the stolen property." See Mora v. United States, 190 F.2d 749, 750 (5th Cir. 1951). Thus, proof of government ownership of stolen property can rest entirely on circumstantial evidence as in United States v. Donato, 269 F. 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 where the corpus delicti must be proved by circumstantial evidence is rare and presents far greater problems than the situation where the only issue is the defendant's participation in the offense. The latter situation is typical of theft of government property cases and the courts of appeals have generally 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.), cert. denied, 389 U.S. 1008 (1967). Receiving stolen property cases also frequently share a common problem of proof. In many instances, the government's proof consists largely of evidence showing that the defendant had in his possession goods which were recently stolen. The evidentiary impact of possession of recently stolen property, as a practical matter, is obvious, but the technical label for this impact has been stated in various ways. A good statement of the current status of the "rule" may 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 stolen goods is a factor from which a jury may infer that the defendant has knowingly received stolen property. In embezzlement cases certain types of circumstantial proof are admissible to establish a wrongful taking of property entrusted to the defendant. In fact, Congress has, by statute, prescribed some forms of circumstantial proof 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 is 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 burden of proving criminal intent. See Shaw v. United States, 357 F.2d 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 of the money was fixed and the payment was not made within that time. See 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 proceedings of the General Accounting Office is prima facie evidence of a balance against a person charged with embezzling public funds. See 18 U.S.C. §  3497. Another common method of proof in embezzlement cases is the net worth or cost of living technique in which the defendant's admitted income is compared with his assets and expenditures: "clearly, evidence of large expenditures or the acquisition of large unexplained sums of money, during the time charged as that which the embezzlement took place, is some evidence of such embezzlement." See Hansberry v. United States, 295 F.2d 800, 807 (9th Cir. 1961). [cited in USAM 9-66.200]