United States v. Guthrie, 11360

• Decision Date: 04 December 1967
• Docket Number: 11368.,No. 11360,11360
• Citation: 387 F.2d 569
• Parties: UNITED STATES of America, Appellee, v. Gerald Ronald GUTHRIE, Appellant. UNITED STATES of America, Appellee, v. Albert Otis HADEN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

387 F.2d 569 (1967)

UNITED STATES of America, Appellee, v. Gerald Ronald GUTHRIE, Appellant.

UNITED STATES of America, Appellee, v. Albert Otis HADEN, Appellant.

Nos. 11360, 11368.

United States Court of Appeals Fourth Circuit.

Argued November 6, 1967.

Decided December 4, 1967.

Nelson M. Casstevens, Jr., Yadkinville, N. C. (A. A. Bailey, Charlotte, N. C., on brief) for appellant Guthrie.

Louis A. Bledsoe, Jr., Charlotte, N. C. (Court-appointed counsel) and C. Ralph Kinsey, Jr., Charlotte, N. C. (Berry & Bledsoe, Charlotte, N. C., on brief) for appellant Haden.

Wm. Medford, U. S. Atty., (William M. Styles, Asheville, N. C., on brief) for appellee.

Before SOBELOFF, BRYAN and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

The legal sufficiency of an indictment for violating 18 U.S.C. § 912 is the primary issue raised by defendant-appellants Haden and Guthrie. That section provides:

"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."¹

The evidence showed that Haden, flashing a badge, identifying himself as "Mr. Hunter" and posing as a federal bank examiner, visited Fred Stegall and informed him that an investigation had unveiled that someone at the local bank had misused funds in Stegall's savings account. Ostensibly to aid in the discovery of the embezzler's identity, Haden proposed that Stegall withdraw the balance standing to his credit and turn it over to Haden who promised to redeposit it secretly. In accordance with the arrangement, a "Mr. Williams" (actually defendant Guthrie) appeared at Stegall's home with an official-looking badge, similar to Haden's to pick up the money. He was handed a dummy package and was then arrested by FBI agents who had hidden themselves in the home and observed the transaction.

Haden, on the witness stand, freely admitted that he had engaged in a scheme to defraud Stegall. In fact, he testified that he came to Charlotte to find a victim and selected Stegall because he lived in a nice-looking, well-maintained house. He advanced the brazen defense, however, that he did not represent himself as a federal bank examiner because he well knew from his extensive encounters with the federal law that this course would be dangerous. He admitted representing himself as a bank examiner, but one employed by the State of North Carolina, not by any federal agency.² Guthrie elected not to take the stand. Both were convicted and prosecute this appeal.

The challenged indictment is as follows:

"* * * on or about November 2, 1966, * * * GERALD RONALD GUTHRIE and ALBERT OTIS HADEN did falsely pretend to be officers and employees of the United States acting under the authority thereof, that is, Federal bank examiners, and did falsely take upon themselves to act as such, in violation of 18 U.S.C. 912."

The defect the defendants ascribe to the indictment is that it fails to allege expressly that the defendants acted with "intent to defraud."

The question for decision is whether, though the statute is silent as to fraudulent intent, a requirement to allege this must be read into part 1 of § 912.

As defined in that part of the section, the essential elements of the crime of impersonating a federal official are (a) falsely assuming or pretending to be the official, and (b) "acting as such." We are aware that the statute, as originally drafted, expressly required an "intent to defraud either the United States or any person."³ But the section was revised and codified in 1948 and in its new form the words of intent were deliberately discarded. The Reviser's note states that "the words `with the intent to defraud * * *' 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, 63 S.Ct. 914, 87 L.Ed. 1091 (1943)." Regardless of whether the amendment was in fact necessitated by the Supreme Court's holding in Lepowitch, Congress accepted the Reviser's view that it was and accordingly the phrase was excised.

It is an accepted canon of statutory construction that where Congress has advertently changed the legislative language the change must be given effect. This is particularly true when the revision was precipitated by a specific Supreme Court interpretation.

The defendants now ask the court to restore the phrase that was intentionally omitted. So to hold would be contrary to the apparent intent of Congress. It cannot not be assumed in these circumstances that Congress deleted an element theretofore regarded as essential without intending to affect the meaning of the statute. While Judge Holtzoff, who assisted in the Revision, declared in the preface of Title 18 U.S.C.A., Vol. 1, p. v, that "in general, with few exceptions, the Code does not attempt to change existing law," the Reviser's note compels the conclusion that this alteration of § 912 constitutes one of the "few exceptions."

We hold, therefore, that "intent to defraud" is no longer an element of a charge under part 1 of § 912, although, of course, the presence of an intent to defraud may be a consideration in determining the gravity of the offense. While it has been stated that "an indictment * * * for a statutory offense * * * may ordinarily be laid in the language of the statute, unless the statute omits an essential element of the offense or includes it only by implication * * *," 4 Barron, Federal Practice and Procedure § 1914 and 1964 Supp. § 1914 (Wright ed.), this cannot avail the present defendants, concluding as we do, that a fraudulent intent is not an essential element. It follows that it need not be alleged in the indictment. While there is very little authority elsewhere on this specific question, our own circuit recently concluded, though only by way of dictum, that "an indictment which alleges that the pretended officer `acted as such' is complete and sufficiently states the first of the two separate offenses defined by the statute." United States v. Leggett, 312 F.2d 566, 569 (4 Cir. 1962). In our view, this conclusion accords with the design of Congress "to protect * * * the dignity, prestige and importance of federal office." Honea v. United States, 344 F.2d 798, 802 (5th Cir. 1965). It recognizes that the injury to the federal government is occasioned by masquerading and acting as a government official regardless of fraudulent intent.

The rule is that an indictment is sufficient if it clearly sets forth the essential elements of the offense sought to be charged. "The true test * * * is * * * whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may...