867. Withholding of Recorded Information—18 U.S.C. § 152(9)

Subsection (9) of Section 152 prohibits the fraudulent withholding of any recorded information--i.e., books, documents, records, and papers--related to the property or the financial affairs of the debtor. The recorded information must be withheld from a custodian, trustee, United States Trustee, United States Marshal, or other officer of the court. This subsection only applies if the withholding of information occurs after the bankruptcy petition is filed--i.e., the commencement of the bankruptcy case.

Subsection (9) provides:

The elements that must be proved are:

1. that a bankruptcy proceeding existed;
2. that the defendant withheld from the trustee entitled to its possession, books, documents, records, or papers;
3. that such documents related to the property or financial affairs of the debtor; and
4. that the defendant withheld the documents knowingly and fraudulently.

Devitt & Blackmar, 2 Federal Jury Practice and Instructions, §§  48.14 & 48.15 (1990 Supplement)(deleted in later editions).

A debtor's basic duty to cooperate with the trustee is set forth in 11 U.S.C. § 521(3). Anyone who has property of the bankruptcy estate or exempt property of the debtor is required by 11 U.S.C. § 542(a) to deliver it to the trustee and to account for the property.

[cited in JM 9-41.001]