The inclusion of the phrase "thing of value" in 18 U.S.C. § 641 creates a problem regarding whether the theft of intangible property is covered by this section. At least one case has adopted the view that 18 U.S.C. § 641 applies only to "corporeal or tangible property" and refused to extend that section to the theft of services. See Chappell v. United States, 270 F.2d 274, 277 (9th Cir. 1959). But see Burnett v. United States, 222 F.2d 426 (6th Cir. 1955) (affirming a 18 U.S.C. § 641 conviction involving the theft of services).
A number of recent decisions, however, have suggested that this section includes intangible, as well as tangible losses. See United States v. Girard, 601 F.2d 69, 71 (2d Cir.), cert. denied, 444 U.S. 871 (1979) (theft of information stored in government computer); United States v. DiGilio, 538 F.2d 972 (3d Cir.), cert. denied, 429 U.S. 1038 (1976) (theft by photocopying government records). Moreover, the Ninth Circuit appears to depart from Chappell in United States v. Friedman, 445 F.2d 1076, 1087 (9th Cir.), cert. denied, 404 U.S. 958 (1971), when it approved a jury charge that information in a grand jury transcript is government property regardless of the ownership of the sheets of paper on which the information is recorded.
These later decisions appear to express the better view on this issue. The extension of 18 U.S.C. § 641 to intangible property interests is consistent with both the plain language of the statute and the judicial construction of that language. The term "thing of value" is certainly broad enough to encompass both tangible and intangible properties and, in fact, has been construed to cover intangibles. See United States v. Girard, 601 F.2d at 71 (collecting cases). Moreover, such a construction is in accord with the interpretation given 18 U.S.C. § 641 by the Supreme Court in Morissette v. United States, 342 U.S. 246 (1952). In Morissette, the Court indicated that 18 U.S.C. § 641 was drafted broadly to reach all misuse of government property. Id. at 271. A construction of this section which extends it to tangible and intangible government property is consistent with this objective.
[cited in JM 9-66.200]