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1661

Protection of Government Property—Embezzlement of Public Funds

In addition, there are a series of sections prohibiting misuse or theft of public funds. See 18 U.S.C. §§ 643, 644, 648, 649, 650, 651, 652, and 653. The coverage of these sections is summarized below:

  1. 18 U.S.C. § 643 provides that any officer, employee or agent of the United States who receives money which he is not authorized to retain as salary and fails to account for it as provided by law is guilty of embezzlement.

  2. 18 U.S.C. § 644 prohibits persons who are not authorized depositaries of public money from knowingly receiving any such money or using, transferring, converting, appropriating or applying such money for any purpose not prescribed by law.

  3. 18 U.S.C. § 648 forbids custodians of public funds from loaning, using, or converting those funds, or depositing or exchanging them, except as authorized by law.

  4. 18 U.S.C. § 649 provides that any person who possesses or controls money belonging to the United States and fails to deposit it when required to do so is guilty of embezzlement.

  5. 18 U.S.C. § 650 applies to the Treasurer of the United States or any public depositary and provides that if these officials fail to keep safely all money deposited with them, they have violated the law. One case has suggested that this section is violated when a depositary of government money negligently loses these funds. See Shaw v. United States, 357 F.2d 949, 957-58 (Ct.Cl. 1966). The better view on this question, however, seems to be that some criminal intent must be proven as part of a prosecution under this section. See Morissette v. United States, 342 U.S. 246, 266-67 (1952).

  6. 18 U.S.C. § 651 relates to the disbursement of public funds and prohibits disbursing officers from falsely certifying full payment of government obligations.

  7. 18 U.S.C. § 652 also relates to the disbursement of government funds. This section prohibits disbursing officers from disbursing a sum less than that required by law.

  8. 18 U.S.C. § 653 prohibits any other misuse of government funds by disbursing officers including: (1) converting, loaning or depositing these moneys except as authorized by law; and (2) withdrawing, transferring or applying these funds without authority.

  9. Finally, 18 U.S.C. § 654 forbids government employees from wrongfully converting the property of others which they receive in the course of their employment.

Penalties for violations of these sections are similar to the penalties prescribed under 18 U.S.C. §§ 634-647. If the value of the property is $100 or less, a defendant is subject to one year imprisonment, a $1,000 fine, or both. When the value of the property exceeds $100, the defendant may be sentenced to ten years imprisonment, a fine equal to the amount of the property taken, or both. In the case of a violation of 18 U.S.C. § 651 or §  652, the maximum fine may equal twice the value of the property taken.

Most of these sections involve situations in which 18 U.S.C. §  641 would be equally applicable. Note, however, that the penalties provided by 18 U.S.C. § 641 differ from the penalties provided for in 18 U.S.C. §§  643 - 654. Violations of 18 U.S.C. § 641 are punishable by ten years imprisonment and/or a $10,000 fine. In contrast, 18 U.S.C. §§ 643 - 654 provide for a maximum penalty of ten years imprisonment and/or a fine equal to the amount taken, or double that amount. Thus, in a given case, the defendant could be subject to a greater or lesser fine, depending upon the statute used. Because of this difference in the penalties provided by these statutes, defendants who fall within these specific sections generally should be prosecuted under the specific statute rather than 18 U.S.C. § 641.

[cited in USAM 9-66.300]