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1655. Protection Of Government Property -- Element -- Intent

Proof of criminal intent is part of every prosecution under 18 U.S.C. § 641. See Morissette v. United States, 342 U.S. 246 (1952). However, as noted, there is no single intent requirement for the offenses included under 18 U.S.C. § 641.

There are several recurring common questions of intent which arise in 18 U.S.C. § 641 prosecutions. The first question involves whether temporary misappropriation of government property falls within the sanctions of this section. The answer to this question turns on the nature of the offense charged. Section 641 incorporates several distinct offenses. One of these offenses, larceny, requires an intent to permanently deprive another of his property. See Ailsworth v. United States, 448 F.2d 439, 442 (9th Cir. 1971). In contrast several other offenses encompassed by this section, such as embezzlement and knowing conversion of property, simply require temporary misappropriation of property. See Morissette v. United States, 342 U.S. at 246 (knowing conversion); United States v. Powell, 294 F. Supp. 1353 (E.D.Va.), aff'd, 413 F.2d 1037 (4th Cir. 1968) (embezzlement). Therefore, 18 U.S.C. § 641 can reach temporary misappropriation of government property under either an embezzlement or knowing conversion theory of prosecution.

A second recurring question involves whether the intent requirement of 18 U.S.C. § 641 demands that a defendant know that the property belongs to the United States. Although the United States Court of Appeals for the Tenth Circuit at one time held that knowledge of government ownership was an element of this offense; see Findley v. United States, 362 F.2d 921 (10th Cir. 1966), it has since abandoned this position. See United States v. Speir, 564 F.2d 934, 938 (10th Cir. 1977) (en banc), cert. denied, 435 U.S. 927 (1978). Other Circuits have adopted this view and held that a defendant need not know that it is government property which he is taking. See, e.g., United States v. Crutchley, 502 F.2d 1195 (3d Cir. 1974); United States v. Boyd, 446 F.2d 1267 (5th Cir. 1971); Baker v. United States, 429 F.2d 1278 (9th Cir.), cert. denied, 400 U.S. 957 (1970); United States v. Howey, 427 F.2d 1017 (9th Cir. 1970).

[cited in JM 9-66.200]

Updated January 17, 2020