Protection of Government PropertyProtection Of
Records and Documents
The taking of a public record or document is prohibited by 18
§ 641. The destruction of such records may be reached under 18 U.S.C.
1361. In both instances, however, proving a $100 loss, the prerequisite to
felony conviction, may be difficult. Thus, neither of these statutes
protects government records.|
The necessary measure of protection for government documents and
records is provided by 18 U.S.C. § 2071. Section 2071(a) contains a
prohibition against destruction of government records or attempts to destroy
records. This section provides that whoever: willfully and unlawfully;
removes, mutilates, obliterates or destroys; or attempts to conceal, remove,
mutilate, obliterate or destroy; or carries away with intent to conceal,
mutilate, obliterate or destroy; any record, proceeding, map, book, paper,
document or other thing deposited in any public office may be punished by
imprisonment for three years, a $2, 000 fine, or both.
There are several important aspects to this offense. First, it is
specific intent crime. This means that the defendant must act intentionally
knowledge that he is violating the law. See United States v.
Simpson, 460 F.2d 515, 518 (9th Cir. 1972). Moreover, one case has
that this specific intent requires that the defendant know that the
involved are public records. See United States v. DeGroat, 30
764, 765 (E.D.Mich. 1887).
The acts proscribed by this section are defined broadly.
three types of conduct are prohibited by 18 U.S.C. § 2071(a). These
concealment, removal, mutilation, obliteration or destruction of records;
attempt to commit these proscribed acts; and (3) carrying away any record
the intent to conceal, remove, mutilate or destroy it. It should be noted
all of these acts involve either misappropriation of or damage to public
This has led one court to conclude that the mere photocopying of these
does not violate 18 U.S.C. § 2071. See United States v.
Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972).
Subsection (b) of 18 U.S.C. § 2071 contains a similar
specifically directed at custodians of public records. Any custodian of a
record who "willfully and unlawfully conceals, removes, mutilates,
falsifies, or destroys (any record) shall be fined not more than $2,000 or
imprisoned not more than three years, or both; and shall forfeit his office
be disqualified from holding any office under the United States." While the
range of acts proscribed by this subsection is somewhat narrower than
(a), it does provide the additional penalty of forfeiture of position with
Title 18 contains two other provisions, of somewhat narrower
application, which relate to public records. Section 285 prohibits the
unauthorized taking, use and attempted use of any document, record or file
relating to a claim against the United States for purposes of procuring
of that claim. Section 1506 prohibits the theft, alteration or
any record or process in any court of the United States. Both of these
are punishable by a $5,000 fine or imprisonment for five years.
[cited in USAM 9-66.400]