U.S. v. Rose, 1010

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation500 F.2d 12
Docket NumberNo. 1010,D,1010
PartiesUNITED STATES of America, Appellee, v. Cecil Grafton ROSE, Defendant-Appellant. ocket 73-2760.
Decision Date10 July 1974

Michael B. Mukasey, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty. for the S.D.N.Y., and S. Andrew Schaffer, Asst. U.S. Atty., on the brief), for appellee.

E. Thomas Boyle, St. James, N.Y. (William J. Gallagher, The Legal Aid Society, Fed. Defender Service Unit, New York City, on the brief), for defendant-appellant.

Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge. *

LUMBARD, Circuit Judge:

Cecil Grafton Rose appeals from a judgment of conviction entered after a three-day trial before Judge Brieant and a jury in the Southern District of New York. An indictment filed July 13, 1973 charged Rose in three counts with impersonating a federal officer and in such pretended character obtaining money and other things of value in violation of 18 U.S.C. 912. Following dismissal of the first count because of a material variance between the government's proof and its bill of particulars, the jury on October 25, 1973 found Rose guilty as charged on counts two and three. On November 30, Judge Brieant sentenced Rose to concurrent prison terms of one year and a day on each count.

On appeal Rose claims that his convictions must be reversed because the indictment did not allege an essential element of the crime and because the prosecutor on cross-examination of Rose asked several questions that constituted improper comment upon his Fifth Amendment right to remain silent following arrest. We affirm.

I.

The government's evidence showed that on September 22, 1972 Harold Hines, a Brooklyn building superintendent and a Costa Rican immigrant, went to the office of the Immigration and Naturalization Service (INS) at 20 West Broadway in Manhattan to obtain a visa extension for his cousin, Evalina Adassa Craig. At the time he was carrying Craig's Costa Rican passport. Immigration authorities told him to mail the passport together with a ten-dollar extension fee. As Hines was leaving the building he was approached by Rose, who told him that the INS was going to deport him for failing to obtain an extension visa. Hines said that it was his cousin's visa, not his, that was in difficulty. Rose showed Hines a badge and said that he was a secret detective with the INS and could help Hines. He said that he knew a lawyer in New Jersey who could get the extension visa. Rose said that it would cost $500 and arranged to visit Hines' home that night to obtain part of the money. Hines gave Rose, who used the name Slim Johnson, his cousin's passport.

At the meeting Hines gave Rose $250. Rose called the next day and Hines agreed to meet him on September 25 near the INS office and give him $210. On September 25 Hines withdrew the money from the bank and gave it to Rose. On September 29 Rose called again and asked for $50 more. A meeting was arranged for that afternoon. Apparently suspicious at this point, Hines called a friend and then the INS. Rose kept the appointment and was arrested by INS officers. A search incident to arrest revealed a badge and Craig's passport.

Rose took the stand on his own behalf. He claimed that he had met Hines in the course of looking for an apartment. When Hines told him about this cousin's difficulty in getting a visa extension, he had offered to help Hines get the visa extension in return for Hines' offering him the first vacant apartment in Hines' building. At a meeting that night Mrs. Hines gave him Craig's passport. After cancelling one appointment, he agreed to meet Hines on September 29 in front of the INS office. He said that he was shocked when he was arrested, that he told the officers he would not try to flee and that he asked what was wrong. He testified that he found the badge at a subway stop and had kept it for the purpose of scaring children who caused trouble in the record store where he worked. He denied ever flashing it at Hines or claiming to be a federal officer.

On cross-examination Rose said that Hines might have seen the badge when he took out some used airline tickets to identify himself. Rose was questioned about the statements he made at the time of arrest including his protestations of surprise. Rose had offered no explanation of why he was meeting Hines in front of the INS office. The relevant portions of the examination of Rose have been reproduced in the margin. 1

II.

It was enough that the indictment charged Rose with falsely assuming and pretending to be a detective of the Immigration and Naturalization Service, an officer and employee acting under authority of the United States, and that in such character he demanded and obtained money. It was not necessary to charge that the crime was committed with intent to defraud.

The indictment here charged:

On or about the dates indicated in Counts 1 through 3 hereof, in the Southern District of New York, Cecil Grafton Rose, the defendant, unlawfully, wilfully and knowingly did falsely assume and pretend to be an officer and employee acting under the authority of the United States and a department, agency and officer thereof, to wit, a detective of the United States Immigration and Naturalization Service, and in such pretended character demanded and obtained money, papers, documents and things of value in the approximate amounts indicated in Counts 1 through 3 hereof:

                                            Amount
                Count         Date         Obtained
                  1    September 22, 1972  $250.00
                  2    September 25, 1972   210.00
                  3    September 29, 1972     --
                

The language of the indictment tracks the language of part (2) of 18 U.S.C 912, which deals with two distinct offenses: 2

Whoever 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, (1) and acts as such, (2) 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.

The predecessor of 912, 18 U.S.C. 76 (1940), codifying Act of March 4, 1909, ch. 321, 32, 35 Stat. 1100, as amended by Act of Feb. 28, 1938, ch. 37, 52 Stat. 83, required an additional element in the crime, that there be 'intent to defraud the United States or any person.' 3 Rose claims that, even though this language was dropped from the statute when it was revised in 1948, intent to defraud is still an essential element of the crime and must be alleged in the indictment.

The Fifth Circuit supports Rose's position, United States v. Randolph, 460 F.2d 367 (5th Cir. 1972) (case involving part (1) offense); Honea v. United States, 344 F,2d 798 (5th Cir. 1965) (case involving part (2) offense), while the Fourth and Ninth Circuits support the contrary position, United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967), cert. denied, 392 U.S. 927, 88 S.Ct. 2284, 20 L.Ed.2d 1386 (1968) (case involving part (1) offense); United States v. Mitman, 459 F.2d 451 (9th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 111 (1972) (case involving part (2) offense). See also United States v. Harth, 280 F.Supp. 425, 426 n. 4 (W.D.Okl.1968); United States v. Carr, 194 F.Supp. 144, 145 n. 1 (N.D.Cal.1961); United States v. Meeker, 110 F.Supp. 743, 14 Alaska 249 (D.Alaska 1953).

The requirement that there be an 'intent to defraud' was dropped in the 1948 revision of the Criminal Code. The only explanation for the deletion came in the Reviser's Note: 'The words 'with the intent to defraud the United States or any person' contained in said section 76 of title 18, U.S.C., 1940 ed., were omitted as meaningless in view of United States v. Lapowich, (Lepowitch, 318 U.S. 702 (1943)), 63 S.Ct. 914 (87 L.Ed. 1727).' In Lepowitch, the Supreme Court was concerned with an indictment that charged defendants with impersonating FBI agents in violation of part (1) of the former 18 U.S.C. 76. Defendants argued that the 'intent to defraud' requirement, which applied to both parts (1) and (2), meant that for them to be guilty they would have to have intended to deprive someone of something valuable. Since part (2) already provided as a separate offense demanding or obtaining things of value in a pretended capacity, this interpretation would have rendered part (1) meaningless. The Court stated: 'We hold 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.' 318 U.S. at 704, 63 S.Ct. at 916.

Initially, Rose argues that our decision in United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), indicates agreement with the Fifth circuit position. We do not agree. It is true that in that case we said. 'The statute plainly prohibits any false assumption or pretense of office or employment under the authority of the United States in any department or office in the government when done with intent to defraud and accompanied by any of the specified acts in the pretended character.' 176 F.2d at 379. But it seems likely that the offenses in that case arose under the old 76 rather than 912, for the court cited both provisions. In any event, we were not concerned with how the 1948 revision had changed the elements of the offense and did not determine the issue before us. Indeed, only recently we declined to rule on this very point in deciding United States v. Harmon, 496 F.2d 20 (2d Cir. 1974), at 21. 4

The leading case supporting Rose's argument is Honea v. United States, supra. There the defendant was charged with gaining money from his bride on the pretext that he was a CIA agent and needed the money for a CIA venture, when, of course, he had no connection with...

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