On January 6, 2021, thousands of people attended President Trump’s Save America rally in Washington D.C. to support his assertions that the 2020 Election was rigged and stolen. Afterwards, many of his supporters marched down Pennsylvania Avenue to the Capitol building where a joint session of Congress was convened to certify the Electoral College vote. Many in the crowd breached the barricades surrounding the building and entered in an attempt to prevent both houses from approving Joe Biden’s victory. The ensuring riot lasted for several hours while people occupied, vandalized and stole from the building. Eventually, the Capitol was evacuated and locked down, but not before thousands of dollars in damage and five deaths occurred. Despite this attempt to disrupt the electoral process, Congress resumed session later that evening and certified the election for Joe Biden.
In the aftermath, the U.S. Attorney’s Office and the FBI began to identify and execute arrests for hundreds of people who were involved in the riots and committed criminal actions. Many perpetrators revealed their own identities by posting pictures of themselves on social media engaged in criminal activities. Among those was Adam Johnson, who became a prominent symbol of the riot when he was photographed carrying a lectern from the U.S. House of Representatives. He was arrest in Florida on January 8, 2021 and charged with, among other offenses, the theft of government property.
18 U.S.C. §641 criminalizes the theft of government property as follows:
- “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted shall be fined under this title or imprisoned not more than ten years, or both…”
- “[B]ut if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.”
- “The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
There are three essential elements that the government has to prove beyond a reasonable doubt to secure a conviction under 18 U.S.C. §641:
- First, the money or property taken belonged to the United States and had some kind of economic value at the time it was taken. It is not necessary for the government to prove that the defendant knew the property belonged to the government at the time of theft. The Ninth Circuit U.S. Court of Appeals observed the following in United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970): “It was not an essential part of the common law larceny-type offense that the thief knew who owned the property he took; it was enough that he knew it did not belong to him. The legislative history provides no support for an assumption that Congress intended in [18 U.S.C. 641] to add to the common law offenses a new requirement that a thief know who owned the property he was stealing. The reason for including the requirement that the property, in fact, belongs to the Government was to state the foundation for federal jurisdiction. A defendant’s knowledge of the jurisdictional fact is irrelevant…”.
- Second, the defendant knowingly and willfully stole or converted the money or property to the defendant’s own use or the use of another person. This can be accomplished by embezzlement, larceny by trick or even picking up the property and carrying it away. It is not necessary for the government to prove, however, that there was an actual asportation or carrying away of an item. The First Circuit U.S. Court of Appeals held in United States v. Herrera-Martinez, 525 F.3d 60 (2008) that 18 U.S.C. 641 contemplates the theft of intangibles as well as tangibles. Information is something that cannot be picked up and carried away, but it is enough of a “thing of value” as contemplated by the statute to be covered for purposes of prosecution.
- Third, the defendant did so with the intent to deprive the United States of the use or benefit of the money. The government does not have prove that the defendant intended to deprive the United States permanently of the property. In Morissette v. United States, 342 U.S. 246; 72 S.Ct. 240; 96 L.Ed.2d 288 (1952), the U.S. Supreme Court determined the following: “To steal means to take away from one in lawful possession without right with the intention to keep wrongfully. Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Money rightfully taken into one’s custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian’s own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abuses and unauthorized uses of government property that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions.” 342 U.S. at 271-272.
It is a necessary element that the item has “value”, but the definition is very broad and this value can be as little as one cent. Remember, 18 U.S.C. §641 protects “any record, voucher, money, or thing of value of the United States or any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.” The government does not have to prove the precise value to secure a conviction. However, $1,000.00 of value is the threshold that means the difference between a misdemeanor and a felony.
The statute not only punishes the actual theft or conversion of the property, but also punishes people who receives, conceals or retains the stolen property with the intention to keep it (even if that person was not the actual theft). Once again, it is not necessary for the person who receives and conceals to know that it belonged to the U.S. government as long as he or she knew it was stolen from someone or somewhere.
It is likely that some of the government property acquired by rioters at the Capitol building on January 6, 2021 will appear as “prizes” circulated to other people or even available on the internet. Do not even consider taking possession of any of these items or you can be liable for a crime! If you see or are offered these goods for sale, you should report them to the appropriate authorities. You can be sure that law enforcement is aggressively tracking down this government property and anyone who has ever had possession or knowledge of their whereabouts. Do not be implicated in federal crimes by being complicit in the concealment.
Adam Johnson and all of the other accused individuals at the Capitol on January 6, 2021 are entitled to be presumed innocent until proven guilty. They are also entitled to have a skilled criminal lawyer in their corner to aggressively protect their rights, assert every defense available, and hold the prosecutor to the legal standard of proving guilt beyond a reasonable doubt. If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.