867
Withholding of Recorded Information18 U.S.C. §
152(9)
|
Subsection (9) of Section 152 prohibits the fraudulent withholding
of
any recorded information--i.e., books, documents, records, and
papers--related
to the property or the financial affairs of the debtor. The recorded
information
must be withheld from a custodian, trustee, United States Trustee, United
States
Marshal, or other officer of the court. This subsection only applies if the
withholding of information occurs after the bankruptcy petition is
filed--i.e.,
the commencement of the bankruptcy case.
Subsection (9) provides:
A person who...after the filing of a case under title 11,
knowingly and fraudulently withholds from a custodian, trustee, marshal, or
other
officer of the court or a United States Trustee entitled to its possession,
any
recorded information (including books, documents, records, and papers)
relating
to the property or financial affairs of a debtor, shall be fined...,
imprisoned..., or both.
The elements that must be proved are:
- that a bankruptcy proceeding existed;
- that the defendant withheld from the trustee entitled to its
possession, books, documents, records, or papers;
- that such documents related to the property or financial affairs of the
debtor; and
- that the defendant withheld the documents knowingly and fraudulently.
Devitt & Blackmar, 2 Federal Jury Practice and Instructions,
§§
48.14 & 48.15 (1990 Supplement)(deleted in later editions).
A debtor's basic duty to cooperate with the trustee is set forth in
11
U.S.C. § 521(3). Anyone who has property of the bankruptcy estate or
exempt
property of the debtor is required by 11 U.S.C. § 542(a) to deliver it
to the
trustee and to account for the property.
[cited in USAM 9-41.001] | |