United States v. Leggett

• Decision Date: 19 December 1962
• Docket Number: No. 8611.,8611.
• Citation: 312 F.2d 566
• Parties: UNITED STATES of America, Appellee, v. Clarence Gene LEGGETT, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

312 F.2d 566 (1962)

UNITED STATES of America, Appellee, v. Clarence Gene LEGGETT, Appellant.

No. 8611.

United States Court of Appeals Fourth Circuit.

Argued September 28, 1962.

Decided December 19, 1962.

COPYRIGHT MATERIAL OMITTED

Daniel R. Dixon, Raleigh, N. C., for appellant.

Alton T. Cummings, Asst. U. S. Atty. (Robert H. Cowen, U. S. Atty., on brief), for appellee.

Before BRYAN and BELL, Circuit Judges, and JOHN PAUL, District Judge.

JOHN PAUL, District Judge.

The appellant is here on appeal from a conviction for violation of Sect. 912 of Title 18 U.S.C., which is as follows:

"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, 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."

At the trial the appellant insisted on representing himself and specifically declined the offer of the court to appoint counsel. As usually occurs when a layman undertakes to act as his own counsel, the record discloses much immaterial and irrelevant testimony and pointless argument presented by the appellant. He did, however, question the action of the court in several respects which he assigns as error. In this court he has been represented by counsel of his own choosing.

The first assignment of error relates to the indictment, which is in the following language:

"The Grand Jury charges:

"That on or about the 20th day of September, 1961, in the Eastern District of North Carolina, CLARENCE GENE LEGGETT, alias Clarence Eugene Leggett, alias Gene Leggett, did falsely assume or pretend to be an officer acting under the authority of the Federal Bureau of Investigation and acted as such, to wit, on the above date CLARENCE GENE LEGGETT, alias Clarence Eugene Leggett, alias Gene Leggett, represented himself to be a Special Agent of the Federal Bureau of Investigation, stationed at Raleigh, North Carolina, and in such assumed or pretended character demanded and obtained registration cards of the Sea Oatel, Nags Head, North Carolina, in violation of the provisions of Title 18, U. S. Code, Section 912."

Prior to his arraignment the appellant filed a motion to dismiss the indictment, which was denied. While this motion set out several grounds, only one of these is insisted upon in this court. It is as follows:

"The said indictment is self-contradictory and ambiguous in that it alleges certain facts therein to be one offense when said allegations constitute and comprise two offenses as a matter of law."

It is asserted that the statute (18 U. S.C. 912) defines two separate offenses and that the indictment is violative of the established principle embodied in Rule 8(a) of the Rules of Criminal Procedure, to the effect that where a defendant is charged with two or more offenses they must be set forth in separate counts. It is urged that the court should have dismissed the indictment or, at least, have required the Government to elect on which offense it would proceed to trial.

We are of opinion that the contention of appellant is well taken and that there was error in the denial of appellant's motion. It is well settled that the statute in question defines two separate offenses. The statute is not a recent one. It has been several times amended, but only to clarify or simplify its language or extend its scope. In the case of United States v. Barnow (1915), 239 U.S. 74, 75, 36 S.Ct. 19, 60 L.Ed. 155, the Supreme Court, dealing with what was then Sect. 32 of the Criminal Code of 1909, made it clear that that predecessor of the present statute set out two separate offenses. Numerous cases have repeated and emphasized this holding. As said by Judge Phillips in Elliott v. Hudspeth (C.C.A. 10), 110 F.2d, 389, 390:

"The statute defines two separate and distinct offenses, one, the assuming and pretending to be an officer or employee acting under the authority of the United States and taking it upon himself to act as such, the other, in such pretended character, demanding or obtaining any money, paper, document, or other valuable thing." See also Graham v. Squier (C.C.A.9), 145 F.2d 348; Shepherd v. United States (C.C.A.10), 191 F. 2d 682, 683; Kane v. United States (C.C.A.8), 120 F.2d 990, 993; Pierce v. United States (C.C.A.6), 86 F.2d 949, 951; United States v. Taylor (D.C.8), 108 F. 621; United States v. Carr, D.C., 194 F.Supp. 144.

Government counsel while not denying that the statute defines two separate offenses still insists that the indictment here comprises only one. The contention appears to be that the indictment is saved from duplicity by the use of the phrase "to-wit" which follows the words "acted as such"; with the result that the second clause of the indictment is merely a recital of what the appellant did while "acting as such" officer. Or, in other words, that the second clause merely sets out the particular act necessary to establish that the defendant "acted as such" officer.

The fault in this argument is that it assumes that an indictment charging a defendant under the first clause of the statute is insufficient unless it sets out the particular things which the defendant did and which constituted the "acting as such officer." In fact, counsel for the Government argues that it is necessary to allege what he calls the "overt acts" in order to show the respects in which the defendant "acted as such" officer, and which in this case were acts condemned in the second part of the statute. The argument is unsound. On the contrary, it is well settled 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. See the cases hereinbefore cited. In this connection counsel cites the cases of United States v. Lepowitch, 318 U.S. 702, 63 S.Ct. 914, 87 L.Ed. 1091, and Ekberg v. United States, 1 Cir., 167 F.2d 380, both of which were multiple count indictments, and neither of which supports the Government's contention.

The Lepowitch case, in a brief opinion, deals with a matter foreign to that presented here. The Ekberg case involved a three-count indictment and in discussing this case the Government brief states:

"The first count was under the first clause of the statute but was defective in failing to allege an overt act under the pretended character."

Counsel have grievously misunderstood what this case held. The count in question, after alleging that the pretended officer "acted as such", then went on to add "in that" he committed certain particular acts. In other words, the indictment undertook to allege what counsel term the "overt acts" which constituted the `acting as such officer." The court held the count bad, not because of failure to allege any "overt act" as counsel assert, but because the particular acts alleged under the "in that" clause were not such as to show that the pretended officer had "acted as such," and because, as the court said, by reason of the "in that" clause the count "failed to charge any offense at all." The significance of this decision in the instant case is the fact that the court pointed out that if the count had alleged only that the pretended officer "acted as such" it would have been good. The court said:

"If the pleader had left out the final `in that\' clause, the count would sufficiently have stated an offense under the first clause of Sect. 76."

What the Government has done in drawing this indictment is to set out the complete offense defined in the first clause of the statute and then adding allegations showing commission of the offense defined in the second clause. Or otherwise stated, the Government has alleged that the appellant committed the first offense named in the statute, "that is to say" that he committed the second and separate offense which the statute forbids. We cannot agree that the use of the phrase "to-wit" merges into one two offenses which admittedly are separate and distinct.

In the case of United States v. Taylor (D.C.Mo.) 108 F. 621, decided in 1900 under a predecessor statute of the present one, the indictment was in a single count which charged that the defendant falsely represented himself to be an officer of the United States and did "act as such" and in such pretended character "did demand and receive" the sum of $10.00. The indictment which was held bad for duplicity was similar to that in the instant case except that the latter, in joining the two offenses, substitutes the word "to-wit" in the place of "and." We do not think that this rescues the indictment from invalidity. The statute defines two separate offenses and the defendant was entitled to know for which he was being prosecuted, not only that he might be prepared to defend the charge but for protection against a future prosecution for one or the other of the offenses.

The facts in the case, hereinafter to be recited, show that the Government's case rested on testimony that Leggett, by representing himself to be an agent of the Federal Bureau of Investigation, had obtained a registration card at a motel — an offense defined in the second clause of the statute. Yet the judgment entered in the case adjudges that the defendant is guilty of representing himself to be an officer of the F. B. I. and "acted as such"; with no mention of obtaining the registration card or anything else. The judgment recites conviction for one offense while the testimony shows commission of another; and a grave question arises as to whether the appellant cannot in the future be prosecuted for the second offense on which the judgment is now silent but which was the one shown by the testimony.

The evidence presented by the Government as to the alleged offense was embodied in the testimony of a Mr. Burros, who testified in substance as follows: That he (Bur...