United States v. Larson, KB-1646.
| Decision Date | 12 November 1954 |
| Docket Number | No. KB-1646.,KB-1646. |
| Parties | UNITED STATES of America, Plaintiff, v. John D. LARSON, Defendant. |
| Court | U.S. District Court — District of Alaska |
Theodore E. Munson, U. S. Atty., Juneau, Alaska, Henry J. Camarot, Asst. U. S. Atty., Washington, D. C., for plaintiff.
Floyd Davidson, Ketchikan, Alaska, for defendant.
The defendant has moved to dismiss on the ground that the indictment does not state an offense under 18 U.S.C.A. § 912. Each count of the indictment charges that the defendant impersonated an officer of the United States "and falsely took upon himself to act as such, in that he falsely stated to (a named person) that he was a special agent of the Federal Bureau of Investigation engaged in the investigation of a criminal violation." It is clear that had each count of the indictment ended with the clause "and falsely took upon himself to act as such" it would have been invulnerable, but by further alleging that he falsely stated to a person named "that he was a special agent of the Federal Bureau of Investigation engaged in the investigation of a criminal violation" all that was accomplished is a mere repetition of the false representation.
The statute requires that to be guilty, one must not only falsely assume or pretend to be an officer but also must "act as such." So the precise question presented is whether one who falsely assumes or pretends to be an officer "acts as such" when he repeats such false representation.
In United States v. Barnow, 239 U.S. 74, 36 S.Ct. 19, 60 L.Ed. 155, three of the counts were practically identical with those in the instant indictment, in that after alleging the false pretense it was further alleged that the defendant took upon himself to act as such, in that he falsely represented himself to be an officer. But the question there considered was whether the officer impersonated had to be in existence. The fact that the Court in adversely disposing of this contention found no fault with the indictment is no authority for the proposition that one so framed is sufficient. Had the precise question been raised or considered it is reasonable to infer that the counts referred to would have been found fatally defective, for the Court said, 239 U.S. at page 77, 36 S.Ct. at page 21, that the statute "requires something beyond the false pretense with intent to defraud; there must be some act in keeping with the pretense." In Lamar v. U. S., 241 U.S. 103, 36 S.Ct. 535, 60 L.Ed. 912, it was argued that the indictment was defective because it was not charged that in pretending to be an officer the accused did an...
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