Purpose and Intent to Deprive

Purpose and Intent to Deprive

Receiving requires a mental state about what happens to the goods, and that state is separate from knowing the goods are stolen. Section 223.6(1) of the Model Penal Code supplies it in two parts. The defendant must purposely receive, retain, or dispose of the property, which makes the receiving itself a matter of purpose and leaves no room for an accidental handling of stolen goods. The offense also does not reach a person who receives, retains, or disposes of the property with purpose to restore it to the owner.¹ The common law approaches the same idea from the other direction. Where the Code asks whether the defendant had a purpose to restore, the common law asks affirmatively whether the receiver intended to permanently deprive the owner of the property, as it does for the other theft crimes from which receiving descends.²

The element exists because of what receiving is punished for. A receiver who takes stolen goods meaning to keep, use, or resell them helps make sure the owner never gets them back, and that outcome is the harm that makes receiving a theft offense. A receiver who takes the same goods in order to return them works against that harm. The two receivers are alike on every earlier element, since both know the goods are stolen, so the knowledge requirement cannot tell them apart. Knowledge does not settle purpose, and only the receiver's aim toward the owner separates a culpable receiver from one who is acting to undo the theft. That is why the Code writes the restore-to-owner exception into the definition of the offense itself.

A second reason concerns how courts read statutes built from the old theft crimes. In Morissette v. United States the defendant gathered spent bomb casings that had lain for years on a former Air Force bombing range, had them flattened at a salvage yard, and sold them as scrap for about $84, and he said he believed the casings had been abandoned.³ The trial court told the jury that taking the casings made him guilty whatever he believed. The Supreme Court held that the statute's silence about intent did not remove intent as an element, because state courts had consistently kept the requirement of intent in larceny-type offenses, and a legislature that borrows a term from the common law takes on the ideas that came with it.⁴ The incentive reasoning is the more instructive part. Dispensing with a guilty mind would ease the prosecution's path to conviction and strip the defendant of whatever protection an innocent purpose gave at common law.⁵ Morissette construed a federal conversion statute, so it does not decide a receiving case by itself, but its reasoning supports reading a purpose requirement into any statute drawn from the common law of theft. The defendant's honest belief that the casings were abandoned returns in the section on claim of right.

Because the two formulations usually give the same answer, an analysis can use either one as long as it reaches both halves: a purposeful receipt, retention, or disposal, and the absence of any purpose to return the goods. The harder questions arise at the margins, when the receiver's aim is neither plainly to keep the goods nor plainly to return them. The next section takes up intent to deprive, including how courts treat those borderline purposes, and the section after it takes up the restore-to-owner exception.

Intent to Deprive the Owner

The common-law version of receiving states the mental element affirmatively: the receiver must acquire the stolen property knowing it was stolen and intend to permanently deprive the owner of it. The Code's receiving provision frames the same element through purpose and through the exception for purpose to restore, and it leaves the word "deprive" to the Code's general definitions.⁷ Either way, the question here is what kind of plan for the goods amounts to an intent to take them from the owner. The word "permanently" is what raises the hard cases, because a receiver whose plans fall short of keeping the goods forever is not obviously harmless. Receiving requires the same intent that the other theft crimes require, so the larceny cases give the clearest guidance. The larceny examples below are analogies that show how the intent concept is applied, and none of them comes from a receiving statute.

The reason the line falls where it does becomes clear once the purpose of the element is stated. What injures an owner is the risk of never recovering the property, and the receiver's plan for the goods determines that risk. A receiver who intends to resell the goods sends them into circulation where the owner will not find them, and a receiver who intends to keep them leaves the owner with nothing to reclaim. A receiver who intends to hold the goods briefly and hand them back, and who can actually do so, leaves the owner with a short delay and little else. The element therefore looks to the plan itself, so a receiver who feels sympathy for the owner is still culpable if the plan leaves the owner exposed to permanent loss. Because the plan exists only in the receiver's head, factfinders read it from conduct, and the doctrine below tells them which plans count.

Larceny doctrine supplies the baseline for the borrowing cases. A taker who intends to return the very same item within a short time has usually not committed larceny, because the owner's loss is temporary.⁸ In United States v. Trinder, a federal district court applied that reasoning to boys who took a government automobile for a joy ride fully intending to return it. The car ended up wrecked against a telephone pole, yet the court dismissed the complaint because stealing, as the statute adopted it from the common law, imports an intent to permanently deprive the owner.⁹ The borrowing idea has limits that matter as much as the baseline. The plan to return must be unconditional and objectively realistic: a taker who intends to run another's car in a demolition derby, or to wager another's cash on a horse, is reckless about whether the property can ever be given back, and the law treats that recklessness as enough even though the taker's stated aim was to return it.¹⁰ An objectively plausible plan protects the taker when an unforeseen accident prevents the return. The trap is treating any stated plan to return the goods as a defense, because the plan has to be both genuine and realistic.

The Code's definition of "deprive" sorts these cases along similar lines. It covers withholding property from another permanently or for so extended a period as to appropriate a major portion of its economic value, withholding with intent to restore only upon payment of a reward or other compensation, and disposing of the property so as to make it unlikely that the owner will recover it.¹¹ Each clause describes a plan that leaves the owner exposed to loss. A return conditioned on a reward turns the owner's own property into something the owner must buy back, and larceny doctrine reaches the same result when a taker would return the property only if the owner pays.¹² Disposal covers the receiver who passes the goods along to a buyer, because an owner who must locate the goods in a stranger's hands is unlikely to succeed. The extended-period clause measures a temporary holding by the economic value it consumes. In State v. Bautista, a Hawaii decision under a theft statute worded much like this definition, the court reversed a first-degree theft conviction for want of sufficient evidence of significant deprivation, where the defendant paid for a new truck with a check that bounced and returned it after a weekend with 592 miles on the odometer.¹³ Bautista is a theft case that illustrates the measuring question, and it does not decide how a receiving statute treats a weekend's use.

Beneath all of this lies a general principle about mental states in theft-type statutes. In Morissette the defendant sold spent bomb casings as scrap and said he believed they had been abandoned, and the Court held that the statute's silence about intent did not remove intent as an element, because common-law crimes such as larceny required proof of a specific intent to deprive the owner and Congress, by borrowing the common-law terms, adopted the ideas that came with them.¹⁴ Morissette construed a federal conversion statute, so it is authority for the principle and does not settle any particular borderline purpose. Its effect in a receiving prosecution is that intent to deprive is an element the prosecution must prove, and the bare fact that the defendant handled stolen goods does not supply it.

Direct evidence of the receiver's plan is rare, so the factfinder usually reads it from what the receiver did with the goods: resale, concealment, a demand for payment, or a prompt return. When a defendant claims to have meant to return the goods, evidence that the defendant handled other goods the same way is relevant to rebut the claim, much as evidence of other thefts of rented cars bears on a defendant's assertion that the car at issue would have been returned.¹⁵ That evidence carries more weight when the defendant actively contests intent, although the line between proving intent and proving propensity is fine, and the trial judge must still weigh its probative value against the risk of unfair prejudice.¹⁶

Purpose to Restore

The Code's receiving provision ends with an exception, purpose to restore, that takes one kind of knowing handler out of the offense. A person who receives, retains, or disposes of property known or believed to be stolen is not guilty if the handling is done with purpose to restore the property to the owner.²¹ The clause sits inside the receiving provision itself, which sets it apart from the claim-of-right defenses that § 223.1(3) lists separately and that the next section takes up.²² Its work is easiest to see on the people the other elements would catch. An officer who seizes stolen goods from a thief, or a friend who takes a stolen bracelet from the thief in order to carry it back to its owner, purposely acquires possession and knows the goods are stolen. Because every earlier element is met, only the aim behind the handling can separate those two from a culpable receiver.

The line falls at aim for a practical reason. The people best placed to get stolen goods back to their owners are the people who come upon those goods in a thief's hands, and a rule that made taking custody a crime would teach them to walk away and leave the goods with the thief. The exception removes that risk at the source. A handler who works to undo the theft stays outside the offense, while a handler whose conduct helps keep the owner from the goods stays inside it. That is the same harm-based reasoning behind the purpose element generally, applied to the one aim that reverses the harm instead of continuing it.

Two parts of the phrase carry the weight, and each does its own job. The word purpose ties the exception to the handler's aim at the time of the act charged, and because the clause modifies receiving, retaining, and disposing alike, the aim has to accompany whichever act the prosecution relies on. The words to the owner fix the destination. Restoration occurs only when the goods are put back within the reach of the person they were taken from, so a handler who sends them anywhere else has not restored them, whatever the handler later calls the plan.

The professional-conduct rules for lawyers give a worked picture of what the destination requirement looks like. When a client delivers goods that the lawyer learns were stolen from someone else, the lawyer is expected to see that the goods are either presented to law enforcement or restored to the rightful owner, and restoration can even be accomplished anonymously.²³ The lawyer may not hand the goods back to the client who took them, because that returns them to the thief, and returning stolen goods to the thief could itself amount to criminal misconduct.²⁴ Rule 1.15(d) adds that a lawyer who holds another's property, where the other's ownership is undisputed, must promptly deliver it, and the lawyer may not conceal or keep stolen documents to the disadvantage of the person they were taken from.²⁵ These are duties of the legal profession and serve here only as an illustration, since the criminal exception has its own text. The two bodies of rules draw the same line because both ask what becomes of the goods: they go back to the owner, or they stay with the thief.

The second limit concerns the terms of the return. A handler who will give the goods back to the owner only upon payment of a reward has not restored anything yet; the owner must buy back what was already the owner's. The receiving text does not mention payment in so many words, but the Code defines depriving a person of property to include withholding it with intent to restore only upon payment of a reward or other compensation.²⁶ Larceny doctrine reaches the same result, since a plan to return the property only if the owner pays defeats the borrowing defense.²⁷ The violin buyer in the previous section shows the contrast: demanding $1,500 for the violin is a plan to deprive, while delivering it with no demand is a plan to restore. Until payment is made, the owner is as deprived as before.

On exam facts, the receiver's statement that the goods were going back is only the beginning of the analysis. The questions are to whom the goods were going and on what terms. Returning goods to the person who stole them keeps the owner without the property, and so does a return conditioned on a payment from the owner. Only a plan that puts the goods in the owner's hands, at the time of the act charged, brings the handler within the exception.