U.S. v. Rosser

• Decision Date: 05 January 1976
• Docket Number: No. 75--1252,75--1252
• Parties: UNITED STATES of America v. David C. ROSSER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 652

528 F.2d 652

174 U.S.App.D.C. 79

UNITED STATES of America v. David C. ROSSER, Appellant.

No. 75--1252.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 16, 1975.

Decided Jan. 5, 1976.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 74--178).

Frank F. Roberson, Washington, D.C. (appointed by this court), for appellant.

Hamilton P. Fox, III, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., and John A. Terry and Jason D. Kogan, Asst. U.S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

During the gasoline shortage in early 1974, appellant David C. Rosser introduced himself to the owner of a Washington, D.C. gas station as an employee of the Internal Revenue Service. In that guise, he instructed the station owner to post a sign explaining his system of allocating gas, directed that certain individuals be allowed to fill their tanks while others could not, and otherwise asserted authority over the operations of the station. After dealing with Rosser for 11 days, the station owner asked the Internal Revenue Service about him. One week later Rosser, who has never been employed by the Service, was arrested.

At his trial for falsely personating an officer or employee of the United States and acting as such, in violation of 18 U.S.C. § 912(1) (1970), ¹ Rosser moved to dismiss the indictment and for acquittal on the ground that neither the indictment nor the Government's opening statement charged that he had acted 'with intent to defraud.' ² The trial judge denied the motion, and the jury found Rosser guilty on two counts. ³ On this appeal Rosser presses his contention that Section 912 requires the Government to charge and prove intent to defraud.

I

Prior to the revision of the penal code in 1948, the offense of falsely personating an officer of the United States was defined by Section 32 of the Criminal Code, 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 (1) shall take upon himself to act as such, or (2) 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, or any corporation owned or controlled by the United States, any money, paper, document, or other valuable thing, shall be fined not more than $1,000 or imprisoned not more than three years, or both. ⁴

This provision had remained essentially unchanged since 1884. ⁵

In 1943 the Supreme Court held that 'the words 'intent to defraud,' in the context of (Section 32), do not require more than that 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.' United States v. Lepowitch, 318 U.S. 702, 704, 63 S.Ct. 914, 916, 87 L.Ed. 1091 (1943). ⁶ Subsequent to this holding, Congress revised the penal code and dropped the requirement of an 'intent to defraud' from the statute. The only explanation offered for this action was a revisers' note that '(t)he words 'with the intent to defraud the United States or any person', * * * were omitted as meaningless in view of United States v. Lapowich (sic) * * *.' ⁷ Thus 18 U.S.C. § 912 (1970) now reads:

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, and (1) acts as such, or (2) 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. ⁸

The courts are divided in their response to the 1948 revision. The Fifth Circuit holds that intent to defraud remains an element of the crime of falsely personating a federal officer or employee and must be charged in the indictment. United States v. Randolph, 5 Cir., 460 F.2d 367 (1972) (Section 912(1)); Honea v. United States, 5 Cir., 344 F.2d 798 (1965) (Section 912(2). ⁹ The Fourth, Ninth, and Second Circuits disagree. United States v. Guthrie, 4 Cir., 387 F.2d 569 (1967), cert. denied, 392 U.S. 927, 88 S.Ct. 2284, 20 L.Ed.2d 1386 (1968); United States v. Mitman, 9 Cir., 459 F.2d 451, cert. denied, 409 U.S. 863, 92 S.Ct. 154, 34 L.Ed.2d 111 (1972); United States v. Rose, 2 Cir., 500 F.2d 12 (1974), vacated on other grounds, 422 U.S. 1031--1032, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975). ¹⁰

In support of its position the Fifth Circuit notes that the purpose of the 1948 revision was to simplify wording but not, in general, to change the substance of the law. See Honea v. United States, supra, 344 F.2d at 801--802; United States v. Randolph, supra, 460 F.2d at 370. This view of congressional intent is supported by the revision's legislative history ¹¹ and generally accepted by the Supreme Court. ¹² From this premise the Fifth Circuit concludes that in 'the absence of a more definitive statement as to this particular section, the most unlikely meaning to assign (to the revision) is that the Revisers intended to overrule Lepowitch by re-legislation or to modify the substance of the provision.' Honea v. United States, supra, 344 F.2d at 802. It is especially unlikely 'that Congress in the course of a structural recodification intended to greatly expand the scope of the statute so as to make m(e)re foolish bravado without any intent to deceive a federal felony.' United States v. Randolph, supra, 460 F.2d at 370. To avoid applying the false personation statute to situations the court is convinced Congress did not intend to bring within the statute's scope, the Fifth Circuit insists that intent to defraud be alleged and proved in prosecutions under Section 912. The absence of an intent requirement in the 1948 revision is, in effect, treated as an inadvertent legislative error resulting from the revisers' alleged misunderstanding of Lepowitch. ¹³

The analysis of the Fourth Circuit is directly opposed to that of the Fifth. Relying on the 'accepted canon of statutory construction that where Congress has advertently changed the legislative language the change must be given effect,' the Fourth Circuit refused to consider the congressional action inadvertent because based on a possible misunderstanding of Lepowitch. United States v. Guthrie, supra, 387 F.2d at 571. Rather, that court concludes that Congress must have intended to change the meaning of the statute when it deleted a previously essential element from the definition of the crime. The Fourth Circuit believes that this understanding of Congress' purpose appropriately 'recognizes that the injury to the federal government is occasioned by masquerading and acting as a government official regardless of fraudulent intent.' Id. Both the Ninth and Second Circuits fol low Guthrie. See United States v. Mitman, supra, 459 F.2d at 453; United States v. Rose, supra, 500 F.2d at 16.

II

We agree with the Fifth Circuit that Congress did not intend to increase the scope of the false personation statute by adopting the revisers' draft of Section 912. We also agree with the Fourth Circuit that courts should be extremely hesitant to read back into the statutory definition of a crime words specifically excised by Congress. Fortunately, these conclusions are not irreconcilable.

The crime defined by Section 912(1) has two elements: falsely pretending to be an officer or employee of the United States, and acting 'as such.' If acting 'as such' is understood to mean performing an overt act that asserts, implicitly or explicitly, authority that the impersonator claims to have by virtue of the office he pretends to hold, the concerns of both the Fifth and Fourth Circuits can be accommodated. Attempting to exercise pretended authority ¹⁴ is far more offensive to the interests of the United States than is 'mere bravado.' Moreover, it seems reasonable for Congress to have concluded that virtually everyone who pretends to be an officer or employee of the United States and in some manner asserts authority by acting 'as such' seeks 'to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct.' United States v. Lepowitch, supra, 318 U.S. at 704, 63 S.Ct. at 916. ¹⁵ Thus elimination of intent to defraud as an element of the crime defined by Section 912(1) does not 'overrule Lepowitch by relegislation or * * * modify the substance of the provision.' Honea v. United States, supra, 344 F.2d at 802. ¹⁶

Our understanding of the meaning of 'acts as such' in Section 912(1) explains the revisers' use of the word 'meaningless'--after Lepowitch the intent to 'defraud' requirement is surplusage. ¹⁷ Moreover, our approach finds support in the many decisions which have found indictments inadequate for failure to allege a sufficient act. See, e.g., United States v. Harmon, 2 Cir., 496 F.2d 20 (1974); Ekberg v. United States, 1 Cir., 167 F.2d 380 (1948); United States v. Larson, 125 F.Supp. 360, 15 Alaska 256 (1954); cf. United States v. Harth, W.D.Okla., 280 F.Supp. 425 (1968). In these cases the indictments have been found defective because the act charged was the false pretense itself, ¹⁸ whereas the statute clearly requires an act and the pretense. If this requirement could be satisfied by any overt act consistent with the impersonation, the two elements defined by the statute could always be found in the same action. ¹⁹ Thus the teaching of the cases cited above is that the act that completes a violation of Section 912(1) must be something more than merely...