Pierce v. United States v. 14 8212 17, 1941

• Decision Date: 08 December 1941
• Docket Number: No. 36,36
• Citation: 314 U.S. 306,62 S.Ct. 237,86 L.Ed. 226
• Parties: PIERCE v. UNITED STATES. Argued Nov. 14—17, 1941
• Court: U.S. Supreme Court

314 U.S. 306

62 S.Ct. 237

86 L.Ed. 226

PIERCE

v UNITED STATES.

No. 36.

Argued Nov. 14—17, 1941.

Decided Dec. 8, 1941.

Mr. L. E. Gwinn, of Memphis, Tenn., for petitioner.

Mr. Wendell Berge, Asst. Atty. Gen., for respondent.

Mr. Justice REED delivered the opinion of the Court.

Petitioner was convicted under an indictment charging violation of Section 32 of the Criminal Code. At the time of the alleged offense it read as follows:

'Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, any money, paper, document, or other valuable thing, shall be fined not more than $1,000 or imprisoned not more than three years, or both.' 35 Stat. 1095, 18 U.S.C. § 76, 18 U.S.C.A. § 76.

The conviction was affirmed, 6 Cir., 115 F.2d 399, and certiorari granted, 313 U.S. 552, 61 S.Ct. 841, 85 L.Ed. 1516, on account of petitioner's heretofore undecided contention of manifest error in the trial court's refusal of an instruction that the statute did not include within its scope false personation of officers of employees of a government corporation, i.e., the Tennessee Valley Authority (TVA).

The section has been upon the statute books since April 18, 1884. 23 Stat. 11. It was passed because of reports to Congress by the Pension Office of fraudulent practices affecting pension claimants. There is nothing in the legislative history which throws any light on the problem posed.¹ Nor do we find any fruitful comments in the various reports preliminary to the enactment of the Criminal Code which adopted the original language without significant change.² Subsequently to the acts forming the basis of the respective counts of the indictment, the section was amended to include pretending to be an officer or employee 'of any corporation owned or controlled by the United States.' Feb. 28, 1938, c. 37, 52 Stat. 82.

The counts of the indictment which were submitted to the jury charged the defendant with falsely pretending to be an officer 'of the United States, to wit, (a representative) of the Government selling T.V.A. Units' then and there taking upon himself to act as such officer with intent to defraud separate individuals named in the counts or with obtaining from the named individuals stated sums of money with intent to defraud. The indictment states crimes under the statute.

On the trial it was stipulated that petitioner was not at any time an agent, employee or representative of the Government or any department thereof or of the TVA. It was shown that TVA was a government corporation and that it issued no stock or units for sale. The evidence further showed petitioner was editor and vice president of a newspaper, the Huntsville (Alabama) Daily Register, and that the representations occurred during 'a community publicity advertising' campaign. He carried a letter from his paper introducing and identifying him as engaged in getting out 'the Muscle Shoals series of page newspaper advertisements,' and carried a bundle of the old issues of the paper as demonstrations of the publicity assistance to be given the TVA. The TVA units were participations in the cost of the page advertisements in the Daily Register, telling of the TVA benefits to the community, which cost the victims of the alleged swindle $10 each. Those who purchased by cash or check received on the spot receipts of the Daily Register signed by petitioner for the advertising cost paid. The wide publicity obtained from the construction of the TVA flood and power project had prepared the way for easy acceptance of the scheme by the credulous. Some subscribers to the units who felt they had been duped by the salesman testified to the circumstances of their fleecing on the occasions specified in the indictment. Their evidence showed to the satisfaction of the jury that Pierce, taking upon himself to act as a government employee, said or gave them the impression that he represented the Government, that the Government was contributing to the cost of the advertising for the development of TVA and that, as one witness phrased it, the purpose was 'Just the advancement of TVA in our country.' Another witness testified 'it never dawned on me that it was a personally owned newspaper.'

All the counts included a charge of impersonation of a representative of the United States 'selling TVA units.' The evidence as to some was that Pierce said he represented TVA; as to others it was that he represented the Government selling TVA or TVA units. In no instance is there testimony that Pierce represented himself as an employee or officer of the United States unconnected with the public enterprise of the TVA at Muscle Shoals. The instructions followed the charges and evidence. They made clear that the charges against Pierce were for false impersonation by assuming to act as an officer or employee of the United States with fraudulent intent and not simply for obtaining money by false pretenses or false claim of stimulating the Tennessee Valley development. The instructions repeated with many variations the thought that Pierce must have actually and intentionally represented himself or assumed to be an officer of the United States, acting under its authority. References were made to TVA. It was said defendant was selling or attempting to sell TVA units. It was further pointed out that the mention of TVA in the copies of the Daily Register which were exhibited 'by the defendant to any person, from whom funds were solicited, and in the sales talks made by him, to such person should not be considered by you as evidence of a false claim or pretense of Federal Authority on the part of the defendant, Pierce, unless you further find and are satisfied from the proof, beyond a reasonable doubt, that such reference to TVA, in either the newspapers or sales talks, were made by the defendant with the intent of producing a belief on the part of the person from whom funds were solicited that he, the defendant Pierce, was acting as an officer or employee of the Federal Government.'

There was a refusal by the trial court, however, to give the following instruction:

'At the request of the defendant, the Court further instructs the jury that the Tennessee Valley Authority, commonly designated as TVA, although an instrumentality of the Federal Government, is a corporate entity, separate and distinct from the Federal Government itself, and the officers and employees of that corporation are not within the scope of the Statute on which the indictment in this case is based. Consequently, any claim or representation by the defendant, if you find that such claim or representation was made, that he was representing the TVA, or was connected with the TVA as an officer or employee, would not constitute the false impersonation of an officer or employee of the United States Government or any department thereof, TVA officers and employees not being officers and employees of the Federal Government of some department thereof, within the meaning of the Statute which the defendant is alleged to have violated in the several counts of the indictment.'

Nor do we find any comparable statement which was given. In this refusal we find material error.

So closely entwined were the TVA and the Government [The United States] in the instructions and the evidence on the various counts that any jury might well have thought a pretense that Pierce was an employee or officer of the TVA violated the statute and have voted for conviction for that reason. This, however, in our view, is incorrect, and constitutes prejudicial error. Cf. Warszower v. United States, 312 U.S. 342, 61 S.Ct. 603, 85 L.Ed. 876; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232. The statute in effect at the time of the commission of the alleged offenses did not speak of pretenses of acting under authority of corporations owned or controlled by the United States. It was passed in 1884 before the United States owned or controlled corporations operating hotels, boat lines or generating plants. The amendments, subsequent to the occasions fixed by the indictment, extended its scope first to the Home Owners' Loan Corporation, 49 Stat. 298, 12 U.S.C.A. § 1467(e), and later to all corporations owned or controlled by the United States, 52 Stat. 82.³ These legislative extensions of the scope of the act were in accord with the growing importance of the administrative corporation, but...