United States v. Harth, Crim. No. 67-195.

• Decision Date: 21 February 1968
• Docket Number: Crim. No. 67-195.
• Citation: 280 F. Supp. 425
• Court: U.S. District Court — Western District of Oklahoma
• Parties: UNITED STATES of America, Plaintiff, v. Joe W. HARTH, Defendant.

280 F. Supp. 425

UNITED STATES of America, Plaintiff, v. Joe W. HARTH, Defendant.

Crim. No. 67-195.

United States District Court W. D. Oklahoma.

February 21, 1968.

John Raley, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff.

Robert E. Shelton and J. Stanley Gill, Savage, Gibson, Benefield & Shelton, Oklahoma City, Okl., for defendant.

ORDER

DAUGHERTY, District Judge.

The Defendant has presented to the Court a Motion for Judgment of Acquittal and for New Trial and Motion in Arrest of Judgment. Upon careful consideration of all the matters raised by both Motions, the Court concludes that they must be denied.

Defendant contends that the indictment does not properly charge a crime under 18 U.S.C. § 912¹ in that it does not specify the overt act necessary to commission of the crime of which Defendant was convicted.²

The indictment is drawn according to the language of Form 8, 18 U.S.C. Appendix,³ omitting only the phrase relating to intent to defraud, which omission has been approved for the type of charge herein by United States v. Lepowitch, 318 U.S. 702, 63 S. Ct. 914, 87 L.Ed. 1091 (1942).⁴ See Barron & Holtzoff, Federal Practice and Procedure § 4538 comments at p. 667 of Vol. 5. The crime charged under the pertinent part of 18 U.S.C. § 912 quoted in note 1 is composed of two essential elements which must be charged in the indictment and proved at trial. These elements are (1) that Defendant falsely pretended to be an employee of the Internal Revenue Service of the United States and (2) that he did some overt act as such employee.

These elements have been quite clearly shown by the evidence offered at trial. They are also quite clearly charged by the indictment. It alleges false personation and then describes how the false personation was accomplished. It then alleges an act in accordance with the personation, and describes the actions of the Defendant constituting such overt act.

Defendant contends that the language charging the overt act merely repeats the charge of false personation. This theory was sufficient to invalidate the indictments in Baas v. United States, 25 F.2d 294 (Fifth Cir. 1928), Ekberg v. United States, 167 F.2d 380 (First Cir. 1948), and United States v. Larson, 125 F.Supp. 360, 15 Alaska 256 (1954). In all these cases the indictment was held bad because the description of the overt act alleged was a repetition of the description of the false pretense.⁵ The cases are not in point.

The language of the indictment in the Larson case is more easily misread than in the Baas and Ekberg cases (Note 4, supra). However, stating that one is an agent of the Federal Bureau of Investigation carrying on the usual duties of such agents is quite different from stating that one is an employee of the Internal Revenue Service engaged in locating the whereabouts of a named person who was a recent tenant of the person to whom the statement was addressed. In the Larson case, the court said,

"Irrespective of the basis for Form 8, it is my opinion that the statute clearly requires that if the pleader specify the act, it must be something more than mere repetition of the pretense, such as solicitation, inquiry, demand for information, or the like." 125 F. Supp. at p. 361.

To state the Court's proposition more succinctly, the indictment is defective if it states that the Defendant engaged in being something which is the pretense charged, but the indictment is good if it states that the Defendant engaged in doing something which is not the pretense itself in the pretended capacity.

Defendant's Motion in Arrest of Judgment and Motion for Judgment of Acquittal are overruled for the above reasons. The alternative Motion for New Trial is also overruled. The Court has carefully considered the fourteen items or grounds set out in the Alternative Motion and finds each to be without merit. The evidence of the Government establishes the commission of the crime charged herein by the Defendant beyond a reasonable doubt, the verdict of guilty returned by the jury is supported by the great weight of the evidence and no trial errors occurred in the case, in the judgment of the Court.

1 "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 acts as such * * *"

2 The indictment reads, "That on or about the 22nd day of June 1967, * * * JOE W. HARTH, * * * did falsely pretend to be an employee of the United States acting under the authority thereof, that is, an employee of the Internal Revenue Service of the United States...