U.S. v. Robbins

• Decision Date: 28 December 1979
• Docket Number: No. 79-1403,79-1403
• Citation: 55 A.L.R.Fed. 481,613 F.2d 688
• Parties: , 5 Fed. R. Evid. Serv. 329 UNITED STATES of America, Appellee, v. Don Lyndall ROBBINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 688

613 F.2d 688

55 A.L.R.Fed. 481, 5 Fed. R. Evid. Serv. 329

UNITED STATES of America, Appellee, v. Don Lyndall ROBBINS, Appellant.

No. 79-1403.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1979.

Decided Nov. 29, 1979.

Rehearing Denied Dec. 28, 1979.

John W. Parkerson, Glover, Sanders & Parkerson, Hot Springs, Ark., for appellant.

Floyd Clardy, III, Asst. U. S. Atty., Fort Smith, Ark. (argued) and Larry R. McCord, U. S. Atty., Fort Smith, Ark., on brief, for appellee.

Before HEANEY and ROSS, Circuit Judges, and LARSON, ^* Senior District Judge.

ROSS, Circuit Judge.

Following a jury trial in the United States District Court for the Western District of Arkansas, defendant Don Lyndall Robbins was convicted of impersonating an FBI agent in violation of 18 U.S.C. § 912. ¹ The defendant appeals, alleging first that the indictment and evidence failed to establish facts sufficient to constitute an offense against the United States under the statute and, second, that testimony concerning other crimes, wrongs or acts was admitted into evidence contrary to Federal Rules of Evidence 404(b) and 403.

The evidence at trial established that during late 1977 and early 1978 the defendant represented to several persons that he was an FBI agent, or a "NARC." In order to affirm his identity as a federal officer he exhibited to some of these people, at various times, a pistol, a set of handcuffs, and an identification card with a badge.

The evidence specifically established that Robbins told his girlfriend, Cheryl Jacobs, that he was an undercover narcotics agent for the Department of Justice. He continued this impersonation, making phone calls in front of Ms. Jacobs while pretending to use a government credit card number and carrying handcuffs and a pistol everywhere he went. On one occasion, the defendant stated to Ms. Jacobs that he had been shot at, and requested that she send some of the expended cartridges to the FBI office in Little Rock. Ms. Jacobs testified that the defendant came over the following night with his shirt torn and with blood all over himself, explaining that he had beaten up his assailant, who was supposedly being held in the county sheriff's office.

On other occasions, the defendant purchased an automobile from John Harmon, and chartered an airplane from William R. Patterson, stating to each that he was a narcotics agent. Patterson testified that he saw handcuffs on the defendant at one time. Later, the defendant opened a checking account at a bank in Hot Springs, representing that he was employed by the Department of Justice.

In January of 1978, the defendant entered Denim & Duds, a Hot Springs business establishment, and in response to a question from the owner, Bill Baswell, he represented that he was an FBI agent and showed Baswell a badge and identification card. A day or two later, the defendant entered Denim & Duds and Baswell saw that he was wearing a shoulder holster containing a revolver and also saw a pair of handcuffs. The defendant did not arrest anyone, look for business records, ask any official questions, or handcuff anyone. Baswell stated that all of the transactions he had with the defendant were personal. Nevertheless, he became suspicious and called the FBI to check on the defendant's identity, and Robbins was arrested.

Prior to the trial, counsel for defense moved to dismiss the indictment for failing to state facts sufficient to allege an offense under 18 U.S.C. § 912. The motion was denied, but the argument was raised again in the defendant's motion for a directed verdict, which claimed that the prosecution had failed to prove an offense under the statute. Following the denial of this motion, Robbins' attorney declined to offer any evidence on behalf of his client.

I. Sufficiency of the Indictment and Proof

Appellant first argues that the motions for dismissal and directed verdict should have been granted because the indictment and evidence failed to allege or establish any acts which would constitute a crime against the United States under 18 U.S.C. § 912. We disagree.

18 U.S.C. § 912 sets out two distinct crimes: the first, where one "pretends to be an officer or employee acting under authority of the United States * * * And acts as such," and the second, where one "in such pretended character demands or obtains any money, paper, document, or thing of value * * *." We are dealing here with the first offense (hereinafter referred to as section 912(1)) which has as its two elements the impersonation of an officer And acting as such. An indictment under section 912(1) must allege, therefore, facts sufficient to constitute an "act" within the meaning of the statute. United States v. Harmon, 496 F.2d 20 (2d Cir. 1974); United States v. Hamilton, 276 F.2d 96, 98 (7th Cir. 1960); Ekberg v. United States, 167 F.2d 380, 387 (1st Cir. 1948). The appellant claims that the "acts as such" element has neither been alleged sufficiently in the indictment, ² nor proved.

One of the appellant's assignments of error is that the indictment failed to allege an "intent to defraud." This approach is followed by the Fifth Circuit, and is based on that court's interpretation of a change in the language of the statute, which came about with the revision of the penal code in 1948. The offense of impersonating a federal officer prior to 1948 was contained in 18 U.S.C. § 76 (1946):

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, or under the authority of any corporation owned or controlled by the United States, and shall take upon himself to act as such * * *. ³

In United States v. Randolph, 460 F.2d 367 (5th Cir. 1972), the court found it unlikely that Congress would "expand the scope of the statute so as to make more (sic) foolish bravado without any intent to deceive a federal felony." Id. at 370. Thus, the Fifth Circuit requires that "intent to defraud" still be alleged in the indictment, despite the fact that the language was dropped from the statute.

We question the wisdom of requiring that an indictment allege an "intent to deceive" when the reviser's note to the statutory change indicated that the words were rendered "meaningless" by a decision of the United States Supreme Court. Other courts which have considered the question follow the "accepted canon of statutory construction that where Congress has advertently changed the legislative language the change must be given effect." United States v. Guthrie, 387 F.2d 569, 571 (4th Cir. 1967). See United States v. Rose, 500 F.2d 12, 16-17 (2d Cir. 1974). See also United States v. Mitman, 459 F.2d 451, 453 (9th Cir.), Cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 111 (1972).

While the weight of authority goes against the rationale of the Fifth Circuit in Randolph, supra, it remains unclear what properly should be contained in an allegation of a criminal offense under the second element of section 912(1). United States v. Rosser, 174 U.S.App.D.C. 79, 528 F.2d 652 (D.C.Cir.1976) represents a sound attempt to reconcile these two interpretations of the 1948 revision. Under the Rosser approach, the Fifth Circuit's concern that an expansion of the statute might elevate "mere foolish bravado" to criminal status could be relieved by using the language of United States v. Lepowitch, 318 U.S. 702, 63 S.Ct. 914, 87 L.Ed. 1091 (1943) for the second element of the offense. ⁴ Thus, to "act as such" would be the equivalent of causing "the deceived person to follow some course he would not have pursued but for the deceitful conduct." The Fourth, Ninth and Second Circuits would be accommodated by virtue of the elimination of the "intent to defraud" requirement. Rosser, supra, 174 U.S.App.D.C. at 83, 528 F.2d at 656.

The Rosser approach helps to explain the reviser's comment to the 1948 revision of the penal code, wherein it was stated that Lepowitch had rendered the "intent to defraud" requirement "meaningless." More important, however, is the fact that the language in Lepowitch puts some substance into the "acts as such" element, requiring reliance on the impersonator's assertion of authority, without resorting to the language that Congress left out of the revised penal code.

The appellant asserts that our adoption of the Rosser approach would require us to reverse the district court's denial of the motion to dismiss and the motion for directed verdict. It is argued that Robbins impersonated an FBI agent but did not "act as such" by asserting the authority of an FBI agent. Thus, the indictment did not allege any assertion of an agent's authority and the prosecution failed to prove the same. We disagree with both conclusions.

In United States v. Hamilton, 276 F.2d 96 (7th Cir. 1960), the defendant was convicted under section 912(1) for impersonating an FBI agent. He rented a room in a boarding house, claiming he was an FBI agent, and on subsequent occasions, he wore a gun around the house. The court upheld his conviction, and quoted the comments of the district judge:

I don't think that any citizen of the type that Mrs. Martin was, and her husband, would ever have tolerated a citizen under the circumstances * * * that day in her home, this afternoon or the subsequent day, to be going through her house with a gun on his person and visible to other people. * * * I don't think that is exactly a case of idle boasting, * * * claiming he is an Agent of the Federal Bureau of Investigation. Here's a man that is carrying a gun, and he is a mature man.

276 F.2d at 98. In the present case, we have a more obvious scheme of impersonation of a federal officer and assertion of that officer's authority. The carrying of a pistol, handcuffs, identification card and a badge go beyond "mere bravado." These actions are integral parts of...