Section 1361 protects “any property” of the United States or an agency or department thereof, or any property being manufactured or constructed for the United States or an agency or department thereof, from willful depredation or attempted depredation. “Depredation” has been characterized as the act of plundering, robbing, pillaging or laying waste. United States v. Jenkins, 554 F.2d 783, 786 (6th Cir. 1977); cf. Deal v. United States, 274 U.S. 277, 283 (1927) (“depredation” defined in context of postal statute). This section prohibits actual physical damage or destruction of both real and personal property, but mere adverse possession of that property without physical harm is insufficient to violate the law. United States v. Jenkins, supra, 554 F.2d at 785. Section 1361 is a specific intent crime, see United States v. Jones, 607 F.2d 269, 273-74 (9th Cir. 1979), cert. denied, 444 U.S. 1085 (1980), and the government must prove that the defendant acted willfully; that is intentionally, with knowledge that he/she is violating a law. United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). The government is not required to prove that defendant knew the property belonged to the government, because government ownership is “merely a ‘jurisdictional fact’.” United States v. LaPorta, 46 F.3d 152, 158 (2d Cir. 1994), quoting United States v. Feola, 420 U.S. 671 (1975). In fact, title or possession by the United States is not a necessary element of this offense, if the property in question was being made for the United States. The government must present evidence establishing value of damage. United States v. Seaman, 18 F.3d 649, 651 (9th Cir. 1994).
The penalties for violations of this section are tied to the extent of the property damage. As amended on September 13, 1994, if the damage exceeds $100, the defendant is subject to a fine of up to $250,000, ten years imprisonment, or both. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 330016, 108 Stat. 1796, 2146-47 (1994). When property damage does not exceed $100, the offense is a misdemeanor punishable by a fine of up to $100,000, one year imprisonment, or both. See 18 U.S.C. §§ 3559(a), 3571.
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