Pierce v. United States

• Decision Date: 16 December 1936
• Docket Number: No. 7342.,7342.
• Citation: 86 F.2d 949
• Parties: PIERCE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

86 F.2d 949 (1936)

PIERCE et al. v. UNITED STATES.

No. 7342.

Circuit Court of Appeals, Sixth Circuit.

December 16, 1936.

L. E. Gwinn and Edgar Webster, both of Memphis, Tenn., for appellants.

R. G. Draper, of Memphis, Tenn. (William McClanahan and Joseph M. Bearman, both of Memphis, Tenn., on the brief), for the United States.

Before SIMONS and ALLEN, Circuit Judges, and LEDERLE, District Judge.

SIMONS, Circuit Judge.

Convicted on seventeen counts of an indictment, each charging either false impersonation of federal officers or fraudulently obtaining money in the pretended character of such officers, in violation of section 32 of the Criminal Code (18 U.S.C. A. § 76), the appellants challenge the sufficiency of the indictment, assail the evidence as too vague and insubstantial to support a verdict, and complain of an unfair trial.

It was the theory of the government that the accused, capitalizing the great interest that the farmers of Western Tennessee had manifested in the objectives of the Tennessee Valley Authority, which was to bring to their farms cheap light and power and other advantages, represented themselves as government officials selling "T. V. A. stock" or "T. V. A. units." The defense was that the accused were engaged in a legitimate advertising campaign, selling advertising space in a country newspaper published in Huntsville, Ala., the purpose of the advertising being to promote and insure the success of the Tennessee Valley Project and to encourage the extension of its operations in the western counties. The jury accepted the government's view as to the purport of the alleged representations, and the accused were convicted on all counts of the indictment except two charging substantive offenses and a third charging conspiracy. Pierce was sentenced to a term of twelve years in a federal penitentiary and fined $8,500. Roach was sentenced to a term of five years and fined $3,400.

Section 32 of the Criminal Code, being section 76, tit. 18, U.S.C. (18 U.S.C. A. § 76), reads: "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." That the statute creates and describes two separate and distinct offenses has long been settled. One consists of falsely assuming or pretending to be an officer or employee under the authority of the United States and the taking upon one's self to act as such with intent to defraud, and the other consists of a false assumption or pretense with intent to defraud, and in such pretended character demanding or obtaining money from any person or from the United States. United States v. Barnow, 239 U.S. 74, 36 S.Ct. 19, 21, 60 L.Ed. 155; Lamar v. United States, 241 U.S. 103, 36 S.Ct. 535, 539, 60 L.Ed. 912.

The counts of the indictment are in series, the even-numbered counts each charging the first offense described in the statute, and the odd-numbered counts, exclusive of the first, charging the second. It is the contention of the appellants that none of the counts sufficiently charges an offense under the law. It is unnecessary to set forth their text. It is enough to say that each responds to the tests applied by the court in United States v. Barnow, supra, to the indictment there involved, and contains all of the elements of the offense charged there found to meet requirements. Applicable also to the appellant's contention is what was said in Lamar v. United States, supra: "It is, moreover, to be observed that there is not the slightest suggestion that there was a want of knowledge of the crime which was charged or of any surprise concerning the same, nor is there any intimation that any request was made for a bill of particulars concerning the details of the offense charged. Under this situation we think that the case is clearly covered by § 1025, Revised Statutes 18 U.S.C.A. § 556." This court has said: "The certainty required in an indictment is only such as will fairly inform the defendant of the crime intended to be alleged, so as to enable him to prepare for defense and so as to make the judgment a complete defense to a second prosecution for the same offense." Bettman v. United States, 224 F. 819, 826 (C.C.A. 6). Such certainty is here present. While the phrase "T. V. A. units" might, in another environment, have required some explanation, perhaps in this none was necessary. At least none was requested in the mode provided.

Another contention is that the Tennessee Valley Authority Act of 1933 (48 Stat. 58 16 U.S.C.A. § 831 et seq) creates a corporation that is an entity, separate and distinct from the Federal Government, and that its employees are not officers or agents of the United States within the purview of section 32. United States v. Strang, 254 U.S. 491, 41 S.Ct. 165, 65 L.Ed. 368, and United States ex rel. Skinner & Eddy Corp. v. McCarl, 275 U.S. 1, 48 S.Ct. 12, 72 L.Ed. 131. The holding in the above cases is that the Emergency Fleet Corporation was not a department of the government. The authorities are, however, inapplicable. The allegations of the indictment are broader than the contention implies, and to the allegations the proofs respond. The defendants were not charged with representing themselves as agents or employees of the Tennessee Valley Authority. They are charged with having assumed or pretended to be representatives of the government.

Government witnesses testified that Pierce in the presence of Roach, and with his apparent though tacit approval, claimed to be a representative of the government selling "T. V. A. units," or "stock in the T. V. A.," or an "interest" therein, and that the government would match any contribution made by citizens of the community. Undoubtedly there was confusion in much of this testimony, and many contradictions, but we must reject the contention that it is intrinsically destitute of probative value as the basis of a finding of false impersonation. We have declared too often to require citation that we will not consider the weight of evidence or the credibility of witnesses, and no logical reason is suggested why verbal declarations may not constitute a false pretending or impersonation equally with the exhibition of a counterfeited badge or a false certificate of authority. Likewise must be rejected the contention that the representations if made were too absurd and irrational to constitute a false pretense, and that to come within the statute they must be such as would be calculated to deceive persons of ordinary intelligence in the absence of a showing that they were addressed to illiterates or those of subnormal mental capacity. We find nothing in the statute that confines its prohibitions to those representations or pretenses which are sufficiently convincing to deceive only those least gullible. Indeed, the purpose of the statute is broader than mere protection of the credulous. As was said in United States v. Barnow, supra: "In order that the vast and complicated operations of the government of the United States shall be carried on successfully and with a minimum of friction and obstruction, it is important — or, at least, Congress reasonably might so consider it — not only that the authority of the governmental officers and employees be respected in particular cases, but that a spirit of respect and good will for the government and its officers shall generally prevail. And what could more directly impair this spirit than to permit unauthorized and unscrupulous persons to go about the country falsely assuming, for fraudulent purposes, to be entitled to the respect and credit due to an officer of the government? It is the false pretense of Federal authority that is the mischief to be cured."

Of more serious import is the complaint that the trial was not fairly conducted, and that conviction was had otherwise than in accordance with the law and the evidence, for: "A trial...