# United States v. William A. Croft

> Court of Appeals for the Seventh Circuit · February 12, 1985 · 750 F.2d 1354

URL: https://www.frixlaw.com/law-library/cases/9472964

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. William A. CROFT, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** February 12, 1985
- **Citations:** 750 F.2d 1354
- **Precedential status:** Published
- **Opinion:** Concurrence by Dumbauld
- **Judges:** Dumbauld, Pell, Coffey
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

DUMBAULD, Senior District Judge,
concurring.
I concur solely on the basis of stare decisis. In my judgment 18 U.S.C. § 641 has been interpreted in this Circuit as covering “intentional conduct by which a person either misappropriates or obtains a wrongful advantage from government property.” U.S. v. Bailey, 734 F.2d 296, 304 (7th Cir.1984). If the quoted words were in the statute I should have no trouble at all. But as res integra I strongly doubt that they have the same meaning as the words used by Congress in 18 U.S.C. § 641 : “Whoever embezzles, steals, purloins, or knowingly converts to his use ... any record, voucher, money or thing of value of the United States” is guilty of a crime. (Italics supplied). On the interpretation of this provision generally see Morissette v. U.S., 342 U.S. 246, 272 , 72 S.Ct. 240, 254 , 96 L.Ed. 288 (1952). So substantial an extension of the conduct condemned *1368 as criminal ought ordinarily to be made only by the Congress, rather than by judicial construction.
The indictment charges defendant with wrongful and unlawful conversion of services, to wit the labor performed for defendant’s financial advantage (testing water samples) by persons paid by government funds to work on a different project (testing cattle tissues). Defendant thus obtained a wrongful advantage, indirectly, from government property, to wit the funds used to pay defendant’s helpers. But I doubt whether conversion of services is a violation of § 641, because services are not property, at least since the 13th amendment abolished slavery.
As noted in Contractor Utility Sales Co., Inc. v. Certain-Teed Corporation, (7th Cir.) 748 F.2d 1151 , the interpretation favorable to the Government in the case at bar
would seem to be a novel form of the now discredited dogma of “liberty of contract” as a property right. Roscoe Pound, Jurisprudence (1959) I, 95-96, 425. As Justice Holmes remarked on this subject: “By calling a business ‘property’ you make it seem like land ... An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct____” Truax v. Corrigan, 257 U.S. 312, 342 , 42 S.Ct. 124, 133 , 66 L.Ed. 254 (1921).
Similarly, conversion of services may constitute misconduct, wrongful activity, or breach of obligation, but not property. You cannot make it property “by calling it a thing.”
The offense charged, therefore, is not covered by the proscriptions of § 641. Under that construction of the statute, defendant’s conviction cannot stand, for it is elementary that a defendant cannot be convicted for an offense not charged in the indictment. Stirone v. United States, 361 U.S. 212, 217 , 80 S.Ct. 270, 273 , 4 L.Ed.2d 252 (1960).
However, this course of reasoning is foreclosed by the previously quoted language from Bailey , and I conform to the precedent previously established in this Circuit.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472964. Public record. Not legal advice.