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Criminal Resource Manual

1638. Embezzlement Of Government Property -- 18 U.S.C. § 641

In Moore v. United States, 160 U.S. 268, 269 (1895), the Supreme Court defined embezzlement in the following terms:

Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking.

There are six elements to the crime of embezzlement, as defined in 18 U.S.C. § 641. These are: (1) a trust or fiduciary relationship between the defendant and the property owner; (2) the property taken falls within the statute; i.e., it must be government property (see this Manual at 1643 for a discussion of the types of property which fall within this section); (3) the property came into the possession or care of the defendant by virtue of his employment; (4) the property belonged to another, in this case the United States; (5) the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his own use; and (6) the defendant acted with the intent to deprive the owner of the use of this property. See United States v. Dupee, 569 F.2d 1061 (9th Cir. 1978); United States v. Powell, 294 F. Supp. 1353, 1355 (E.D.Va.), aff'd, 413 F.2d 1037 (4th Cir. 1968).

The requirement that the defendant act with the intent to deprive the owner of his property makes embezzlement a specific intent crime. See United States v. May, 625 F.2d 186, 189-90 (8th Cir. 1980). It should be noted, however, that the intent required to violate the law is not an intent to deprive another of his property permanently. Therefore, even if an individual intends to return the property, his actions are still criminal. In short, restitution is no defense to embezzlement. See United States v. Powell, 294 F. Supp. at 1355.

[cited in USAM 9-66.200]