Honea v. United States, 19339.

• Decision Date: 21 July 1965
• Docket Number: No. 19339.,19339.
• Citation: 344 F.2d 798
• Parties: Forrest Etheridge HONEA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

344 F.2d 798 (1965)

Forrest Etheridge HONEA, Appellant, v. UNITED STATES of America, Appellee.

No. 19339.

United States Court of Appeals Fifth Circuit.

April 28, 1965.

Rehearing Denied July 21, 1965.

COPYRIGHT MATERIAL OMITTED

William O. Braecklein, Dallas, Tex., for appellant.

Robert B. Ward, Asst. U. S. Atty., Dallas, Tex., for appellee.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge:

In this appeal by Honea from his conviction and sentence of three years plus a fine of $1,000 under an indictment charging a violation of 18 U.S.C.A. § 912,¹ we reach only one issue — the sufficiency of the indictment to charge the offense. Answering in the negative, the case must be reversed and we need go no further.

The indictment was worded:

"* * * on or about March 15, 1961, * * * Forrest Etheridge Honea, hereinafter called defendant, which said defendant was not then and there an officer or employee acting under authority of the United States of America, did unlawfully, knowingly, and feloniously, falsely assume to be an employee under the authority of the United States of America, to wit, an employee of the Central Intelligence Agency, an agency of the United States of America, and in such pretended character, and with full knowledge that the same was false, the said defendant did obtain money, to wit, the sum of $4,000 in cash, from Nellie Oriene May Dunn."²

By a timely pretrial motion to dismiss, F.R.Crim.P. 12(b)(2), Honea urged that the indictment was "fatally defective" because it failed "to allege that the defendant did the acts with intent to defraud either the United States or any person." The motion was denied.³

At the trial, the evidence revealed that over a period of about two months, Honea, an adventurous rogue, had, under an assumed name and identity first as a retired Colonel which was later embellished by his claim of being a CIA agent, courted and married a young widow, Mrs. Dunn, who among her other attractions had $4,000 from the sale of the equity in her home and $20,000 from her recently deceased husband's life insurance. Being given to sudden and unexplained sorties about the country which seemed to upset Mrs. Dunn and her married couple friends who took quite an interest in this whirlwind courtship, Honea, when confronted with his apparent inattentiveness toward his intended, made up the bit about being a CIA agent. The yarn had nothing to do with money. Then came the marriage — a result in which a CIA's status was not a catalyst. After the marriage she voluntarily let him have $4,000 on the occasion specified in the indictment and consigned his note for $10,000 on another (not alleged) — in each instance the money being advanced to assist Honea in some purported CIA venture. During this same period of time Honea splendidly provisioned Mrs. Dunn, housing her in fine hotels, and lavishly wining, dining, and gifting her — including a new Pontiac. At Honea's arrest, he returned to her a substantial portion of the money taken from her.

The question before the Court really has two parts: (a) is intent to defraud an essential element for an offense under the part 2 of § 912, and (b) if so, is this indictment fatally defective for failure to include such an allegation.

Our attention is immediately directed to the fact that in its present recodified form § 912 does not in express words require an intent to defraud, and that words to that effect were deleted from the former version of the statute⁴ in the 1948 Revision of the Criminal Code. Thus the answer to (a) depends on a painstaking examination of the available resources to determine the intent of the Revisers and, by imputation, Congress, in eliminating this language.

We know as a general matter that, with few exceptions, the 1948 revision was not intended to effect substantive changes in federal criminal law.⁵

With particular reference to § 912, note 1, supra, the Revisor's Note shows that former § 123 was merged into it, thereby eliminating the separate offense and different punishment for false impersonation of a revenue officer. As appears from a comparison of former § 76 with § 912 (see notes 4 and 1, supra), much unneeded verbiage was commendably excised from the statute. And then the Revisers make the key and cryptic statement that "The words `with the intent to defraud the United States or any person', contained in section 76 of Title 18, U.S.C., 1940 ed., were omitted as meaningless in view of United States v. Lapowich Lepowitch 1943, 318 U.S. 702, 63 S.Ct. 914, 87 L.Ed. 1091." The citation is obviously to Lepowitch and apparently refers to the following statement in that opinion:

"We hold that the words `intent to defraud\' in the context of this statute, do not require more than the defendants have, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct."⁶

While we may have some doubt that this really renders the fraudulent intent requirement "meaningless," as the Revisers expressed it, their reaction to that effect is an understandable one.

Perhaps of greater concern is what kind of legislative response to Lepowitch, if any, was intended by the deletion of the words "intent to defraud". In view of the general purpose of the revision and the absence of a more definitive statement as to this particular section, the most unlikely meaning to assign is that the Revisers intended to overrule Lepowitch by re-legislation or to modify the substance of the provision. The Revisers' rather terse explanation suggests that their intent was — as is frequently done in codification-revision efforts of this kind — to make the statutory wording conform to authoritative judicial construction, and to carry forward, by a simplified and streamlined wording of the statute, the Lepowitch statement of what facts would make out a violation of the offense involved in that case.

With this construction, it is important to analyze carefully the Lepowitch case. As we have previously noted, § 912 as well as its predecessor contains two separate offenses (as bracketed in note 1, supra), 1 false impersonation and acting as such, and 2 false impersonation and demanding or obtaining property. Our case is under 2, Lepowitch under 1 as the Supreme Court so carefully pointed out. In Lepowitch the defendants were charged with impersonating FBI officers and with an attempt to elicit information from an individual in such capacity. The trial court sustained a demurrer to the indictment, raising the legal question whether the facts asserted came within the statute, an issue of statutory construction. Although the indictment contained a second count based on part 2 of § 76 — obtaining a valuable thing — the Government did not ask for review of this aspect of the trial Judge's ruling. 318 U.S. at 703, n. 2, 63 S.Ct. 914.

Since it is the classic posture of courts to hear argument and having heard to answer responsively, we are assisted by noting from the Lawyer's Edition summary of argument the way the Lepowitch appeal was put to the Supreme Court by the lawyers. The defendants' position was that intent to defraud meant intent to deprive another of money or property (a "valuable thing") — thus lumping together parts 1 and 2 of the statute. It followed from this that there could be no conviction for obtaining, by deceitful false impersonation, information or papers having no value to the giver. This construction would have effectively knocked out one of the vital interests which the statute seeks to protect, namely, the dignity, prestige and importance of federal office. See United States v. Barnow, 1915, 239 U.S. 74, 78, 36 S.Ct. 19, 60 L.Ed. 155. Thus it was important for the Government to distinguish the two offenses, and to make it clear that the first kind of offense — 1 acting as a federal officer — could be committed without an intent to wrongfully deprive another of his property.

In reversing the District Court, the Supreme Court agreed with the Government and made it clear that its definitional statement that intent to defraud means intent to change the course of conduct was applicable only to the type 1 offense.

"The first 1 clause of this statute, the only one under consideration here, defines one offense; the second 2 clause defines another. While more than mere deceitful attempt to affect the course of action of another is required under the second 2 clause of the statute, which speaks of an intent to obtain a `valuable thing\', the very absence of these words of limitation in the first 1 portion of the act persuade us that under it, a person may be defrauded although he parts with something of no measurable value at all such as information." 318 U.S. at 704-705, 63 S.Ct. at 916. (Emphasis supplied.)

Viewed in this light, it is obvious that the Supreme Court was not concerned with the quality or intensity of the evil which characterized the false impersonator's intent, but rather with the object upon which that intent was focused, i. e., whether the intent had to be to obtain a thing of value, or whether an intent to change the course of someone's conduct would do. Thus the Supreme Court put no gloss on the fraudulent intent requirement where the prosecution is against one who 2 "demands or obtains" the property of another.

In § 76 the introductory words "intent to defraud" applied to both offenses 1 and 2 (see note 4, supra). In the quest for simplification, the Revisers apparently felt that the statute could be restructured by omitting the...