38 U.S.C. § 6101

Misappropriation by fiduciaries

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(a) Whoever, being a fiduciary (as defined in section 5506 of this title) for the benefit of a minor, incompetent, or other beneficiary under laws administered by the Secretary, shall lend, borrow, pledge, hypothecate, use, or exchange for other funds or property, except as authorized by law, or embezzle or in any manner misappropriate any such money or property derived therefrom in whole or in part and coming into such fiduciary’s control in any manner whatever in the execution of such fiduciary’s trust, or under color of such fiduciary’s office or service as such fiduciary, shall be fined in accordance with title 18, or imprisoned not more than five years, or both.(b) Any willful neglect or refusal to make and file proper accountings or reports concerning such money or property as required by law shall be taken to be sufficient evidence prima facie of such embezzlement or misappropriation.(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1239, § 3501; Pub. L. 99–576, title VII, § 701(82), Oct. 28, 1986, 100 Stat. 3298; renumbered § 6101, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, § 14(d)(7), June 13, 1991, 105 Stat. 286; Pub. L. 102–83, § 4(a)(1), Aug. 6, 1991, 105 Stat. 403; Pub. L. 103–446, title XII, § 1201(e)(17), Nov. 2, 1994, 108 Stat. 4686; Pub. L. 108–454, title V, § 501(c), Dec. 10, 2004, 118 Stat. 3618.)Editorial NotesAmendments

2004—Subsec. (a). Pub. L. 108–454, § 501(c), substituted “fiduciary (as defined in section 5506 of this title) for the benefit of a minor, incompetent, or other beneficiary under laws administered by the Secretary,” for “guardian, curator, conservator, committee, or person legally vested with the responsibility or care of a claimant or a claimant’s estate, or any other person having charge and custody in a fiduciary capacity of money heretofore or hereafter paid under any of the laws administered by the Secretary for the benefit of any minor, incompetent, or other beneficiary,”.

1994—Subsec. (a). Pub. L. 103–446 inserted a comma after “title 18”.

1991—Pub. L. 102–40 renumbered section 3501 of this title as this section.

Subsec. (a). Pub. L. 102–83 substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.

Pub. L. 102–54 amended subsec. (a) as in effect immediately before the enactment of Pub. L. 102–40 by substituting “in accordance with title 18” for “not more than $2,000”.

1986—Subsec. (a). Pub. L. 99–576 substituted “a claimant’s” for “his” before “estate”, and “such fiduciary’s” for “his” in three places.

Statutory Notes and Related SubsidiariesEffective Date of 2004 Amendment

Amendment by Pub. L. 108–454 effective on the first day of the seventh month beginning after Dec. 10, 2004, see section 507(a) of Pub. L. 108–454, set out as an Effective Date of 2004 Amendment note under section 5312 of this title.

Notes of Decisions

Cited in 8 cases, 1992–2009 · leading case: United States v. Manning, 526 F.3d 611 (10th Cir. 2008).

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United States v. Manning, 526 F.3d 611 (10th Cir. 2008). · cites it 2× “The government maintains that on August 21, 2003, before he was sentenced for his conviction of misappropriation *613 by a fiduciary under 38 U.S.C. § 6101 (a), Mr. Manning gave a false statement to United States Probation Officer Tony Budzinsky, who was preparing the PSR.”

United States v. Beryl Zyskind, 118 F.3d 113 (2d Cir. 1997). · cites it 2× “§ 1344 (“Count I”); misappropriation of funds held as a fiduciary, in violation of 38 U.S.C. § 6101 (“Count II”); and theft involving federal funds, in violation of 18 U.”

United States v. Howard W. Young, 955 F.2d 99 (1st Cir. 1992). “§ 3501 (a) (current version at 38 U.S.C. § 6101 (a)), which makes it a crime for a guardian .”

Segarra v. Messina, 153 F.R.D. 22 (N.D.N.Y. 1994). “The complaint alleges that this application for fees was unwarranted, was not in the best interest of the estate, was in breach of fiduciary duty and constituted over-reaching and common-law extortion in violation of 38 U.S.C. § 6101 (a). The complaint alleges that on February…”

United States v. John H. Johnson, Jr., 270 F. App'x 839 (11th Cir. 2008). · cites it 3× “38 U.S.C. § 6101 (a). “Any willful neglect or refusal to make and file proper account-ings or reports concerning such money or property as required by law shall be taken to be sufficient evidence prima facie of such embezzlement or misappropriation.”

United States v. Abbey (10th Cir. 1998). · cites it 3× “§§ 371, 1001, 2); counts 2 through 5 charged Abbey with embezzlement of VA funds ( 38 U.S.C. § 6101 , 18 U.S.C. § 2 ); counts 6 through 9 charged Abbey with making false statements ( 18 U.”

United States v. Manning, 147 F. App'x 24 (10th Cir. 2005). “Manning pleaded guilty to one count of misappropriation by a fiduciary in violation of 38 U.S.C. § 6101 (a). Applying the Guidelines, the presentence report recommended an offense level of 12 and a criminal history category of V, a combination that provides a sentencing range of…”

United States v. Manning, Jr., 305 F. App'x 518 (10th Cir. 2009). “Manning’s supervised release he was arrested for possession of drug paraphernalia.”

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