This signals that Congress did not intend “for the government to ‘own’ information the same way a private actor does.” Jessica Lutkenhaus, Note, Prosecuting Leakers the Easy Way: 18 U.S.C. § 641, 114 COLUM. L. REV. 1167, 1182-83 (2014) (hereafter “Lutkenhaus”).

On August 9, 2007, Ms. Loving pied guilty to thefi of public fisnds in violation of 18 U.S.C. §§ 641 arnd 642 before this Court. B. Offense Level Computation The calculation of the offense level was conducted 'in accordance with the November 1, 2006 edition of the U.S.S.G. The Base Offense Level for a violation of 18 U.S.C. 641 is six points, pursuant to U.S.S.G. §2B1. 1.

U.S. v Schwartz, 785 F.2d 673, 681 n. 4 (9th Cir. 1986) (and cases cited) (rejecting Chappell as binding precedent in the Ninth Circuit and concluding that that government information is a thing of value.) Id.; accord U.S. v. Kueneman, 94 F.3d 653 *1 n. 3 (9th Cir. 1996) (unreported decision); and see United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991) (agreeing with Second and Sixth Circuits that government information is a “thing of value,” and therefore its conversion and conveyance may violate 18 U.S.C. § 641). Case 2:16-cv-00889-RAJ Document 16 Filed 08/15/16 Page 18 of 26 MOTION FOR SUMMARY JUDGMENT CASE NO.

Dep’t of Corr. & Rehabilitation, No. 1:11-cv- 01629-GBC (PC), 2012 WL 1833888, at *5 (E.D. Cal. May 18, 2012) (“Whether to prosecute and what criminal charges to file or bring [under 18 U.S.C. § 641] are decisions that generally rest in the discretion of the prosecutor, not the court.”); Summers v. Marin County Recorders Office, No.

"), at Tf 2.) With : 18 U.S.C. § 641 provides for civil and criminal penalties for its violation, stating that persons who violate it "[s]hall be fined under this title or imprisoned not more than ten years, or both." ' See PL Br.

f; 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; but 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. Officials have been prosecuted under this provision for giving government reports and information to the press.65 The statute of limitations for this offense is five years,66 and would not yet have begun to run if Ashenfelter still possessed the documents he is alleged to have received.67 Therefore, Convertino has not met his burden to prove that Ashenfelter, as the alleged recipient of confidential government documents and other information, does not reasonably fear prosecution under 18 U.S.C. § 641 (or for concealing another’s commission of such an offense). 65 See U.S. v. Morison, 844 F.2d 1057 (4th Cir. 1988) (affirming conviction).

The opening paragraph of the 2011 Warrants (identical in each document) described the items to be seized. It directed that: The items to be seized are evidence, contraband, fruits, and/or instrumentalities of violations of the following offenses occurring between March 2001 and the present: (a) theft of Dept. of Defense checks in violation of 18 U.S.C. §§ 641, 1031, 1341 and 1343; (b) destruction of documents and computer files in violation of 18 U.S.C. §§ 371, 1512(b)(2)(B), 1512(c)(l) and 1519; (c) a scheme to defraud the Department of Defense and other customers in violation of 18 U.S.C. §§ 371, 641, 1031, 1341, 1343 and 1349; Case 2:14-cr-00574-PBT Document 109 Filed 12/08/15 Page 20 of 83 9 (d) a scheme to convert funds diverted from clients . . . in violation of 18 U.S.C. §§ 371, 641, 1031, 1341, 1343 and 1349; (e) a scheme to defraud pharmaceutical manufacturers in violation of and other customers [sic] 18 U.S.C. §§ 371, 641, 1031, 1341, 1343 and 1349. . . . including [listing, as examples, broad categories of items] (Grover Decl.

The defendant’s prior knowledge and criminal intent in committing each of the eight alleged criminal counts are key factual issues that the jury, as the ultimate fact finder, must ultimately resolve. The proposed Rule 404(b) evidence is clearly relevant to provide a proper context of the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident and res gestae to the charged offenses under 18 U.S.C. §§ 641, 1030(a)(2) and 1001. As such, this evidence should be deemed admissible.

For similar reasons, this information indicates that, in downloading sensitive information to her computer – whether ultimately passed to her colleague or not – Ms. Chen had converted this government material for her own personal use. See, e.g., United States v. Sparkman, 112 Fed. Appx. 358, 360 (5th Cir. 2004) (temporary conversion of government funds for own use satisfied elements of 18 U.S.C. § 641). Second, the evidence should not be barred under Rule 403.

Rather than respond to the Motion2, the government, on January 15, 2015, filed a Superseding Indictment. The Superseding Indictment contains 8 Counts: One count of theft (in violation of 18 U.S.C. §641); two counts of unauthorized access of a government computer database (in violation of 18 USC §1030(a)(2) and (c)(2)(B)(iii)); and 5 counts of false statements (in violation of 18 U.S.C. §1001(a)(2)). Although the government’s Superseding Indictment addressed the flaws with the false statement counts identified in the Motion to Dismiss by identifying with greater particularity what it contends Ms. Chen said that the government believes is false, it fails to address any of the defects identified with the other counts.