dissenting:
I respectfully dissent. All law students are cautioned about this kind of case in their first semester of law school — one in which hard facts make bad law. The majority of our court today establishes a precedent that places in jeopardy of criminal prosecution recipients who cash or deposit mistakenly issued government checks — -even where the payee did nothing to cause or induce the mistake. This Orwellian result is reached through judicial interpretation of 18 U.S.C. § 641 (1988), which is an important issue of first impression.1
*984Pursuant to this judicial rule a government check payable to a named individual and delivered to that payee, typically by mail, is deemed to be “government property.” It is government property, however, only if Big Brother’s computer or a negligent bureaucrat makes a mistake — otherwise, the named payee/recipient may, without fear of prosecution, cash it. Thus, all recipients of government checks, particularly those who hold unpopular posts such as members of Congress, judges, appointed criminal defense lawyers, and IRS employees, should be admonished to scrutinize very carefully each treasury check that they receive. If all or any part of the payment made by that check is a “mistake” or “error,” then that recipient is subject to prosecution under 18 U.S.C. § 641 for conversion of government property. This threat also faces the more typical recipients, including social security claimants, veterans, and federal service retirees. The majority opinion clearly states that “this case involves a situation where a recipient receives an erroneously issued check representing funds that the government never intended for the recipient.” Majority Op. at 981. Further, the majority unequivocally “hold[s] that the government at all times retained a property interest in the proceeds of the erroneously issued United States Treasury check.” Id. at 981 (emphasis in original).
The majority appears unconcerned that potentially thousands of government check recipients will be in danger of to prosecution because of computer or bureaucratic errors, the number of which we also intuitively know to be in the thousands. The majority’s response to that state of affairs is to observe that “the scope of prosecutions under section 641 strikes an appropriate balance between protection of government property and avoidance of punishing innocent conversions.” Id. at 982. Thus, the majority apparently countenances the sacrifice of the innocent converter2 on the altar of government property protection — all because some machine or civil servant erred. But the majority consoles us3 with the observation that the person receiving and cashing the check will have the right to a trial and that “the government must still prove beyond a reasonable doubt that the [recipients] acted ‘knowingly and willfully with the intent to either temporarily or permanently deprive the government of its property.’” Id. at 982 (quoting United States v. Lanier, 920 F.2d 887, 895 n. 62 (11th Cir.1991)). The “knowingly” referenced by the majority has nothing to do with knowledge of the error having occurred or the amount thereof. As presented in the majority’s opinion, the knowledge to be proved relates to the use of the government property; that is, the portion of an erroneous payment over and above the amount properly due to the recipient of the treasury check. The majority cites United States v. Lanier, 920 F.2d 887 (11th Cir.1991) for this proposition. That decision by our court plainly states: “In this circuit, to establish the requi*985site criminal intent, the government need only prove that defendants knowingly used government property for their own purposes in a manner that deprived the government of the use of the property.” Id. at 895 (emphasis added). When the recipient of a government check deposits or cashes the cheek, he has intentionally and knowingly used the property for his own purposes. Little comfort springs from the burden of proof to which the majority alludes.
Accordingly, under the majority’s construction of this statute, a typical government worker or benefits recipient is subject to successful prosecution when the government check she receives is in error and she receives even a little bit too much — not so much as to red flag the overpayment, but certainly an amount different from that received in previous checks — where the recipient knowingly uses that overpayment “for [her] own purposes in a manner that deprived thq government of the use of the property”; that is, she cashed the check. Id. at 895.
Obviously the restraint in this entire scheme is the assumption that federal prosecutors will act fairly and not seek to prosecute such a recipient who has no knowledge that an error has been made in the amount of payment that he has received and used; that is, cashed or deposited. While such confidence generally would not be misplaced, the specter raised by the result in this case is ominous. Americans ought not have to depend on the kindness and good sense of prosecutors when conducting daily affairs. Fear of the power to be unfairly prosecuted is chilling and need not be justified here; history has done that repeatedly. Common sense tells us that this result and, hence, this statutory construction should be rejected.
This case is not about whether Hale and McRee can lawfully keep the money paid to them by mistake. They cannot. The government is not without clear statutory authority to recapture funds erroneously paid to recipients. Under 26 U.S.C. § 7405 the government could have pursued Hale and McRee to recover the erroneously issued refund. Moreover, Hale and McRee were arguably criminally prosecutable under 18 U.S.C. § 2232 for attempting to conceal the proceeds of the erroneously issued check. The majority interprets section 641 principally upon a declaration of policy that seeks to close statutory gaps. In actuality, the majority uses section 641 duplicitously to serve the functions already performed by sections 2232 and 7405. However, where construction of a criminal statute is involved, the Supreme Court has cautioned:
Even were the statutory language ... ambiguous, longstanding principles of lenity, which demand resolution of ambiguities in criminal statutes in favor of the defendant, Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 913-914, 55 L.Ed.2d 70 (1978) (applying rule of lenity to federal statute that would enhance penalty), preclude our resolution of the ambiguity against petitioner on the basis of general declarations of policy in the statute and legislative history. See Crandon v. United States, 494 U.S. [152], [160], 110 S.Ct. 997, 1002, 108 L.Ed.2d 132 (1990) (“Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text”).
Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990). In the instant case the venerable rule of lenity has been disregarded.
While 18 U.S.C. § 641 may be construed in appropriate situations “to avoid gaps and loopholes between offenses,” Majority Op. at 11, the construction placed upon this statute by the majority unnecessarily exposes a multitude of innocent government check recipients to the risk of criminal prosecution (including the expense, embarrassment, unwanted publicity and its attendant hardships that accompany even acquittals). This statutory construction establishes a precedent that defies common sense and violates the well-established rule of lenity.
For these reasons I am unable to join in this judgment or the analysis used to support it.
. While there are any number of cases in which government checks are stolen or otherwise misappropriated, or where government funds designated for particular purposes are misused, there appears to be no case of a government check being cashed by the named payee serving as grounds for a prosecution under section 641. See, e.g., Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (the government property was spent bomb casings on a military bombing range); United States v. Hope, 901 F.2d 1013 (11th Cir.1990) (treasury checks were funds for use in community development projects payable to an organization), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991); United States v. Richardson, 755 F.2d 685 (8th Cir.1985) (dealt with a purloined treasury check); United States v. Spear, 734 F.2d 1 (8th Cir.1984) (social security checks for defendants’ deceased mother converted by children after direct deposit); United States v. Santiago, *984729 F.2d 38 (1st Cir.1984) (involved stolen social security benefits checks); United States v. Carr, 706 F.2d 1108 (11th Cir.1983) (the "government property” at issue was stolen savings bonds); United States v. O’Kelley, 701 F.2d 758 (8th Cir.) (focused upon stolen social security benefits checks), cert. denied, 464 U.S. 838, 104 S.Ct. 128, 78 L.Ed.2d 124 (1983); United States v. McIntosh, 655 F.2d 80 (5th Cir.1981) (grant transferred to closing attorney by Farmer's Home Administration to satisfy grantee's debts), cert. denied, 455 U.S. 948, 102 S.Ct. 1450, 71 L.Ed.2d 662 (1982); United States v. Forcellati, 610 F.2d 25 (1st Cir.1979) (involved a stolen treasury check), cert. denied, 445 U.S. 944, 100 S.Ct. 1342, 63 L.Ed.2d 778 (1980); and United States v. Rowen, 594 F.2d 98 (5th Cir.) (government funds transferred to a college but embezzled by an employee), cert. denied, 444 U.S. 834, 100 S.Ct. 67, 62 L.Ed.2d 44 (1979).
. "Conversion” is defined as "[a]n unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights. Any unauthorized act which deprives an owner of his property permanently or for an indefinite time. Unauthorized and wrongful exercise of dominion and control over another’s personal property, to exclusion of or inconsistent with rights of owner.” Black's Law Dictionary 332 (6th Ed.1991).
. I say "us” because I, like my judicial colleagues, also receive periodic treasury checks, both for salary and for travel and lodging reimbursement. It is rare, even with a pay check, that the total remains constant from month to month. Changes in deductions of all sorts (medical, FICA, pension, savings plan, credit union, etc.) occur regularly. Each change presents an opportunity for error.