Concept

The Act of Receiving

Receiving stolen goods

The Act of Receiving

The conduct element asks what the defendant did with the goods, and the Model Penal Code answers with three verbs: the defendant must purposely receive, retain, or dispose of the property.¹ The first verb carries its own definition. Receiving means acquiring possession, control, or title, or lending on the security of the property, so the term reaches a physical hold on the goods, a legal right over them, and a financial stake in them.² The other two verbs reach conduct that comes after the moment of acquisition. This section therefore divides the element into two parts, getting the goods and keeping or moving them on, and each part has its own rule.

The drafting is wide for a functional reason. A person can keep stolen goods from their owner, and keep the thief's market open, without ever holding the goods. A fence who tells a thief to leave the merchandise at a designated drop-off point, who takes title on paper while the goods sit in someone else's warehouse, or who advances cash against the goods has furthered the same harm as the buyer who carries them home. If the offense required manual possession, a fence could arrange every transaction by phone and never be a receiver, so the definition names control, title, and lending in order to close that gap. The second and third verbs follow the same logic. A person who learns the truth after an innocent purchase can still keep the goods from the owner, and a person who passes them along gives the thief a new outlet.

Because the Code states the mental requirement alongside each verb, the same defendant can fall outside the offense when acquiring the goods and inside it later when keeping them.³ That is why the conduct element is better taught as a set of moments than as a single event. The first sub-section below takes up how a defendant receives, and the second takes up retention and disposal.

Acquiring Possession or Control

The Model Penal Code defines receiving as acquiring possession, control, or title, or lending on the security of the property, and the four routes share one underlying question: did the defendant obtain power over the goods?⁵ Possession is the most familiar route, and it plainly covers a person who takes the goods in hand. It also reaches constructive possession, meaning that the person does not hold the goods at the moment but has the right to hold them and the means to get them, like the holder of a key to a storeroom or safe deposit box.⁶ Control stretches further, to a defendant who directs what happens to the goods without ever touching them. Because the Code states the routes as alternatives, proof of any one of them satisfies the act element.

The definition is built around power instead of handling because of how stolen goods actually move. A middleman who tells a thief where to leave the merchandise, or who arranges for the goods to go straight to a customer, profits from the theft and keeps the owner from recovering the property just as surely as a buyer who carries the goods home. If the offense required physical contact, a careful fence could run every deal by telephone and never qualify as a receiver. Defining receiving by control closes that gap, and the same test explains each of the outcomes below.

The designation of the place carries the analysis in that scene, because it shows that the defendant, and not the thief, now holds the power over the goods. The common-law offense reaches the same facts. Manual possession is enough but is not required, and it is also receiving when a thief places the goods in a spot the defendant has designated, or when the defendant, for profit, arranges for the thief to sell the goods to a third person.

Title and lending extend the idea from physical goods to legal and financial interests. A person acquires title by taking ownership on paper, as a buyer does who accepts a bill of sale for goods that stay in the thief's warehouse, and the Code lists title as a form of receiving without regard to where the goods physically sit.⁷ A pawnbroker who lends money on the security of a watch the pawnbroker knows is stolen has likewise received it, because the Code names lending on the security of the property as a form of receiving.⁸ The inclusion has a functional reason. Taking the watch as collateral gives the lender an interest in it, and the loan lets the thief turn the watch into cash, so the lender takes part in converting the theft into proceeds.

The definition also marks where the element stops. Receiving requires an acquisition, and a defendant who is merely around stolen goods has not performed the act. Students lose this issue when they treat presence near stolen goods as receiving, because that skips the question the Code asks, which is whether the defendant obtained possession, control, title, or a security interest.

Exam Analysis Steps

Because the test turns on power over the goods and not on the physical details of the transfer, it is best run as a short series of questions that moves from the plainest form of acquisition to the more indirect ones. The steps are these:

Ask whether the defendant took the goods into hand, which establishes actual possession.
If not, ask whether the defendant had the right and the means to hold the goods or to direct what became of them, as when a thief leaves them at a spot the defendant chose or sells them to a buyer the defendant lined up for profit.
Ask whether the defendant took title to the goods or lent money on their security.
If every answer is no, conclude that the defendant did not receive the goods, and turn to whether the defendant later retained or disposed of them.

Retaining and Disposing

The Code's definition of receiving captures the moment of acquisition, but the offense does not stop there. The same provision reaches a person who purposely retains or disposes of movable property of another, knowing it has been stolen or believing it probably stolen.¹⁰ Each verb is a form of the conduct element in its own right, so the prosecution can rest on whichever one the evidence shows. Retaining means keeping the goods, and in particular keeping them from the owner. Disposing means passing them on, by sale or any other transfer, so that the goods move farther from the person they were taken from. Because the knowledge or belief requirement attaches to all three verbs, the defendant's state of mind is tested separately at each act the defendant performs.¹¹

The reason for the extra verbs is timing. An offense limited to acquisition would examine the defendant's mind at a single instant, the moment of purchase or delivery. Anyone who took the goods innocently could learn the truth the next day and then keep them, hide them, or resell them with no consequence, even though the owner is just as far from recovering the property as if the buyer had known all along. Adding retention and disposal means the question of knowledge is asked again at every later act. The reseller is covered for a related reason: a person who passes known stolen goods along gives the thief a fresh outlet and keeps the market for stolen property moving.

Hypothetical Illustration

A contractor accepts a delivery of ten power generators from a supplier and pays the invoice in good faith. The acceptance is not receiving under the Code, because the contractor had no knowledge or belief that the generators were stolen when they arrived. A month later a detective tells the contractor that the generators came from a stolen shipment, and the contractor, now persuaded that this is probably true, keeps six of them and sells four online. Keeping the six is retaining and selling the four is disposing, and in both acts the contractor holds the required awareness and is not acting to give the goods back to the owner.

Change one fact and the answer flips. A second contractor receives the same generators from the same supplier, never hears of any theft, and has no reason to suspect one. That contractor uses them for years and eventually sells a few. The conduct looks identical, but the knowledge or belief element is never met, so neither the retention nor the sales are theft by receiving.

The pair shows which fact carries the analysis. Keeping or selling goods is ordinary behavior, and it becomes the offense only when the defendant purposely does it while knowing or believing the goods are stolen. The first contractor commits no offense at the moment of acquisition and commits one afterward, which is the gap the added verbs were drafted to fill.¹²

Real charging decisions show the two kinds of conduct appearing as separate accusations. In Huddleston v. United States the defendant faced one federal count of selling stolen goods in interstate commerce and a second federal count of possessing stolen property in interstate commerce, both arising from a stolen trailerload of more than 32,000 blank Memorex videocassette tapes.¹³ The jury convicted on the possession count only, so a verdict on holding the goods was returned without a verdict on selling them.¹⁴ Those counts arose under federal statutes and not under the Code, so the case illustrates how prosecutors split holding from selling and does not apply the Code's wording. It also shows where such cases are usually fought. There was no dispute that the tapes were stolen, and the only material issue at trial was whether the defendant knew it.¹⁵ The Supreme Court's holding concerned how a trial judge screens other-acts evidence offered to prove that knowledge, and that subject returns when this chapter reaches proof of the mental element.

Retention can be an offense even for someone who played no part in the theft and has a respectable reason for holding the goods. A lawyer to whom a client delivers stolen property is the clearest example. A lawyer who learns that the property was stolen has no more right than anyone else to keep it, and is obliged to see that it is either presented to law enforcement or restored to the rightful owner.¹⁶ Handing it back to the client who took it is no safe harbor, because that transfer puts the goods back in the thief's hands, and professional authorities treat it as potential misconduct in itself.¹⁷ The Code's wording leads to the same place. The only excuse it states for dealing with goods the actor knows are stolen is purpose to restore them to the owner, an exception taught in a later section, and the thief is not the owner.¹⁸ A hand-back to the thief is therefore a disposal with knowledge that falls outside the exception. The professional rules point the same direction, since a lawyer who receives property in which a third person has an interest must promptly notify that person and deliver the property to them.¹⁹

Students lose this issue when they treat innocent acquisition as the end of the analysis. An innocent beginning means only that the act of receiving was not an offense, and it says nothing about what the defendant does after the truth arrives. The reverse mistake is just as costly: a defendant who learns the truth later does not become a receiver retroactively, and the earlier acquisition stays outside the offense. Each act is judged by what the defendant knew or believed when performing it.