Each Receipt of Money Is Separate Offense Under 18 U.S.C. § 641

United States v. Reagan, No. 08-11006 (5th Cir. Feb. 4, 2010) (King, Barksdale, Elrod)

Ever wondered what the unit of prosecution is under the theft of public money statute, 18 U.S.C. § 641? Then read on.

Reagan was charged under 18 U.S.C. § 641 for improperly receiving $41,832 over five years in Section 8 program payments from the Dallas Housing Authority (DHA), which administers funding provided by the Department of Housing and Urban Development (HUD). The Section 8 program subsidizes rent for low income persons. Reagan jointly owned a residential property with his wife, Debra Kirvin, and, in 2002, leased this property to his wife’s mother, Leatha Kervin, a participant in the Section 8 program. One of the documents that Reagan signed and filed with the DHA to initiate Section 8 benefits included the disclaimer that “the owner (including a principal or other interested party) is not the parent, child, grandparent, sister, or brother of any member of the family.” In another document signed and filed with the DHA, Reagan similarly promised that he had “no blood, marital or other familial relationship” with the Section 8 recipient. Reagan received monthly checks from the DHA from March 2002 until September 2007, when his relationship to Leatha Kervin was discovered. Reagan was charged under § 641 with five counts of receipt of public funds, one count for each year that he received monthly Section 8 payments.

Reagan was convicted of all five counts. On appeal he argued "that the indictment was multiplicitous because although it charged five separate offenses, all 'stem[med] from a single fraudulent ac[t] in the first year.'" The Government, as you might imagine, argued that multiple counts were appropriate because Reagan violated § 641 each time he received a payment.

As multiplicity mavens know well, the the question boils down to the unit of prosecution for the offense, which depends on what the statute says.

Section 641 penalizes “[w]hoever embezzles, steals, purloins, or knowingly converts to his use or the use of another . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641. No case has been reported discussing the “allowable unit of prosecution” under § 641. Courts interpreting similarly-worded statutes, however, have concluded that each distinct taking of funds constitutes a separate violation under the statute.

Like those other statutes,

§ 641 punishes “[w]hoever embezzles, steals, purloins or knowingly converts to his use . . . any record, voucher, money, or thing of value of the United States.” 18 U.S.C. § 641 (emphases added). Accordingly, we hold that the “allowable unit of prosecution” under § 641 is each individual transaction in which government money is received, even if the transaction is part of an overarching scheme. Reagan violated § 641 each time he converted a HUD check. The five counts against Reagan therefore were not multiplicitous.

Reagan raised a couple of other challenges to his conviction, but the court declined to address them:

Reagan, who is represented by appointed counsel, does nothing beyond listing these points of error—he offers no further arguments or explanation. This is a failure to brief and constitutes waiver.

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Reagan does not provide citations to any evidence in the record to support his claim. By failing to do so, Reagan has failed to show a “sufficient evidentiary foundation” for the requested instruction and therefore cannot establish abuse of discretion. This is also a failure to brief.

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Reagan argues that “[t]he law favors cautioning jurors under such circumstances to take the testimony of the hostile, accomplice witness with a grain of salt,” but offers no further legal analysis.

Ouch.