U.S. v. Emerson, 94-5710
| Decision Date | 10 February 1995 |
| Docket Number | No. 94-5710,94-5710 |
| Citation | 47 F.3d 1171 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Dwight EMERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: NORRIS and DAUGHTREY, Circuit Judges, and FEIKENS, District Judge. *
The defendant, Dwight Emerson, was convicted in the district court of impersonating a government agent, in violation of 18 U.S.C. Sec. 912. After being sentenced to 36 months of probation, he appealed his conviction, claiming insufficient evidence to support the jury's verdict and error in the admission of certain evidence at trial. We find no reversible error and affirm.
This case began when the defendant approached the victim, Schuyler Anderson, to inquire about the possibility of contracting with Anderson to clean boats at Anderson's Louisville marine repair facility. After three days of negotiations, Anderson rejected Emerson's offer. According to Anderson, Emerson became extremely angry, went to his car, and pulled out a breast-pocket billfold and brochure. He shoved these items (one of which appeared to be marked as FBI identification) at Anderson, told Anderson that he was an FBI agent, said that he was going to "take [Anderson] downtown" for questioning, and insisted that Anderson get in the car. Emerson did not use the word "arrest" and, at some point, mentioned that "he would give [Anderson] lunch while [they] were downtown." Anderson testified, however, that Emerson's proposal did not come across as an invitation to "a friendly lunch engagement." He refused to get in the car, and Emerson finally left.
At a one-day jury trial, Anderson testified about these events. He also stated that after Emerson left, he called the local FBI office and was told that Emerson was not an FBI agent. FBI Special Agent David Craddock also testified that Emerson was not an FBI agent. Furthermore, Craddock stated that when Emerson arrived at the FBI office for questioning, he brought his passport and an FBI brochure listing himself as an FBI contact. At that time, the passport did not have the red letters "FBI" on it, as Anderson indicated the credentials Emerson presented to him as official identification did. Later, after Craddock's interview with Emerson, Craddock asked Emerson's parents to send him these two items and they complied.
Months after the indictment was issued and four days before trial, Emerson moved the court to suppress the passport and the brochure, alleging that they were illegally seized from his car. However, before trial, the government explained that it got the two items from his parents, and the matter was not pursued further. Both items were introduced at trial. Based on all of this evidence, the jury convicted Emerson.
On appeal, the defendant first claims that he was convicted on the basis of insufficient evidence, because the government failed to prove each element of the statute under which he was convicted. Under 18 U.S.C. Sec. 912,
[w]hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both.
Emerson contends that the government failed to prove that he "act[ed] as such", because it allegedly did not prove that he performed an overt act asserting the authority that he claimed to have as an FBI agent. He cites several cases analyzing the element of Sec. 912. Primarily, he relies on United States v. Larson, 125 F.Supp. 360 (D.Alaska 1954), in which the court dismissed an indictment alleging that Larson pretended to be an FBI agent investigating a crime, finding that the defendant's statement that he was investigating a crime was a "mere repetition of the false representation". The defendant also relies upon United States v. York, 202 F.Supp. 275 (E.D.Va. 1962), an opinion refusing to hold a woman responsible under the statute for falsely stating on her credit application that she was employed by the FBI. The York court found that because she did not pretend to act "under the authority of the United States government" when buying clothes and applying for credit, she was within the law.
Relying upon these cases, Emerson has presented two bases for dismissal of the impersonation charge on appeal. First, he argues that his demand that Anderson come with him "downtown" and his reference to lunch were "mere repetition of the false representation itself" and, thus, inadequate as a separate overt act. Moreover, citing York, he insists that because his demands on Anderson were not part of an FBI agent's duties, he was not pretending to act under federal authority. Rather, he claims, his activity should have been viewed as similar to York's application for credit. In arguing this claim, Emerson notes that Craddock testified that his FBI responsibilities included recruiting new FBI agents, speaking at schools, investigating criminal activity, and arresting people. Because Emerson insists that he did not exercise any of these responsibilities, he argues that he did not pretend to act "under the authority of the United States", as is necessary under the statute.
We are convinced from our review of the record that Emerson's conviction was based upon sufficient evidence. The government proved that the defendant impersonated an officer of the United States by presenting bogus FBI identification and then acted upon this impersonation by ordering Anderson into a car. Although cases differ with regard to the amount of independence that the overt act must have from the defendant's original act of impersonation, a review of the cases indicates that the defendant's activity in this case qualifies under any standard as sufficient.
For example, the Second Circuit has let stand the conviction of a defendant who carried a gun and then stated that he was an FBI agent. The court noted that 18 U.S.C. Sec. 912 requires "a false claim of federal authority going above and beyond mere bravado" and held that the defendant's conduct met this standard. United States v. Wells, 893 F.2d 535 (2d Cir. 1990). In United States v. Parker, 699 F.2d 177 (4th Cir.), cert. denied, 464 U.S. 836 (1983), the court found that a defendant had violated the statute by telling a firewood seller that the defendant was an I.R.S. agent who was investigating the seller. In United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980), the "act" became subsumed in the "pretense". That case involved a defendant who falsely signed in at a federal penitentiary under the name of an Assistant United States...
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