United States v. Tomsha-Miguel

• Decision Date: 04 September 2014
• Docket Number: No. 13–10342.,13–10342.
• Citation: 766 F.3d 1041
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Susan TOMSHA–MIGUEL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

766 F.3d 1041

UNITED STATES of America, Plaintiff–Appellee,

v.Susan TOMSHA–MIGUEL, Defendant–Appellant.

No. 13–10342.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 14, 2014.

Filed Sept. 4, 2014.

Heather Williams, Federal Public Defender, and Jeremy S. Kroger, Assistant Federal Public Defender (argued), Fresno, CA, for Defendant–Appellant.

Edward P. Sullivan, Trial Attorney, United States Department of Justice (argued), Mythili Raman, Acting Assistant Attorney General, Jack. L. Smith, Section Chief Counsel–Public Integrity Section, Barak Cohen, Trial Attorney, Public Integrity Section for the United States Department of Justice; Washington D.C., for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:12–cr–00153–LJO–SKO–1.

Before: SUSAN P. GRABER, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge W. Fletcher.

OPINION

PAEZ, Circuit Judge:

Susan Tomsha–Miguel (“Tomsha–Miguel”) is the proprietor of a small tax services business in Atwater, California. In early 2011, in an attempt to assuage the concerns of one of her long-time clients, Tomsha–Miguel prepared a letter responding to her client's tax problems using the formal letterhead of a United States Representative. Tomsha–Miguel then signed the letter on behalf of a fictional congressional aide and faxed the letter to the client from her fax machine. Her misguided actions were ultimately discovered when the client sought additional information concerning the letter from the congressman's office, and she was subsequently charged, and ultimately convicted, of impersonating an officer or employee of the United States in violation of 18 U.S.C. § 912.

In this appeal, Tomsha–Miguel challenges her conviction on several grounds. She contends that there was insufficient evidence to convict her under § 912 because the government did not show that she committed an act consistent with the assumed impersonation. Additionally, she argues that prosecutorial misconduct occurred during trial and that the statute as written is an unconstitutional restriction on free speech. Finally, Tomsha–Miguel argues that the district court erred in denying her motion to dismiss the indictment for failure to allege intent to defraud and in denying her request to raise an affirmative defense of a lack of intent to defraud. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

The evidence at trial established that Tomsha–Miguel owned a small business in Atwater, California, where she provided bookkeeping and tax services to local businesses.¹ In early 2011, one of Tomsha–Miguel's clients, Juan Garcia (“Garcia”) sought her assistance in resolving a tax dispute with the Internal Revenue Service (“IRS”). In March 2011, Tomsha–Miguel contacted former Congressman Dennis A. Cardoza's office and requested that the Congressman contact the IRS on behalf of Garcia to resolve the dispute. Congressman Cardoza's office offered to assist, but asked that Garcia complete a privacy release form. The Congressman's office promptly faxed the form, which was printed below Congressman Cardoza's official letterhead, to Tomsha–Miguel.

Tomsha–Miguel did not return the release form. Instead, she photocopied Congressman Cardoza's letterhead onto a letter that she drafted, and signed, under the fictional name of William G. Darton, “Aide to Congressman Dennis A. Cardoza.” The letter was addressed as follows:

April 7, 2011

Sundown RV Center, LLC

Juan H. Garcia, Managing Member

c/o Susan R. Tomsha–Miguel, EA

Fax: 209–357–0663

Re: IRS situation

Dear Ms. Tomsha–Miguel,

The letter proceeded to explain that Garcia's tax dispute was under investigation by the Philadelphia Campus Director of the Taxpayer Advocate Services and, although the Director was in Washington, D.C., upon his return to Philadelphia, it would be the office's “number one priority.” Tomsha–Miguel faxed the fraudulent letter to Garcia.

In April 2011, Garcia contacted Congressman Cardoza's office seeking information concerning the letter he had received. After obtaining a copy of the letter, Congressman Cardoza's office informed Garcia that the letter was fraudulent. They then contacted the Federal Bureau of Investigation (“FBI”). The FBI interviewed Tomsha–Miguel about her involvement with the letter. Although she initially claimed that she had received the letter from Congressman Cardoza's office, she later admitted to photocopying the letterhead and drafting and signing the letter herself.

In May 2012, a grand jury indicted Tomsha–Miguel on one count of 18 U.S.C. § 912, impersonating an officer or employee of the United States. Tomsha–Miguel filed a motion to dismiss the indictment on the grounds that: (1) § 912 was facially invalid because it violated the First Amendment, and (2) the indictment failed to allege the requisite element of intent to defraud. The district court denied the motion and the case proceeded to trial before a jury. At trial, Tomsha–Miguel sought leave to raise the affirmative defense of lack of intent to defraud, but was denied. After the close of evidence, Tomsha–Miguel moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. The court denied the motion. The jury subsequently returned a verdict of guilty, after which the court sentenced Tomsha–Miguel to one year of probation and fifty hours of community service. Tomsha–Miguel timely appealed.

II.

A.

We turn first to Tomsha–Miguel's argument that the evidence presented by the government at trial was insufficient to support her conviction under § 912.² In considering a challenge to the sufficiency of the evidence, “we are obliged to construe the evidence ‘in the light most favorable to the prosecution,’ and only then determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Nevils, 598 F.3d at 1161 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Section 912 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 office thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

The statute thus sets forth two distinct offenses; the first where the defendant “assumes or pretends to be an officer or employee acting under the authority of the United States ... and acts as such,” and the second where the defendant “in such pretended character demands or obtains any money, paper, document, or thing of value.” 18 U.S.C. § 912; see also United States v. Mitman, 459 F.2d 451, 453 (9th Cir.1972); Ninth Circuit Model Jury Instructions 8.50. Tomsha–Miguel was convicted of the first crime, which has two elements: the impersonation of an officer or employee and acting “as such.” Tomsha–Miguel argues that the government wholly failed to prove either of these elements. She first contends that her conduct does not satisfy the first element because the forged letter was prepared “in care of” Tomsha–Miguel and “a person cannot pretend to herself that she is a federal employee.”

Impersonation occurs when any person “assume[s] to act in the pretended character” of a government official. United States v. Lepowitch, 318 U.S. 702, 704, 63 S.Ct. 914, 87 L.Ed. 1091 (1943) (internal quotation marks omitted). “The most general allegation of impersonation of a governmentofficial” is sufficient under § 912. Id. Here, Tomsha–Miguel crafted a fraudulent letter when she prepared it on behalf of “William G. Darton,” the fictional “Aide to Congressman Dennis A. Cardoza;” signed the letter on behalf of the fictional aide; and copied the official letterhead of Congressman Cardoza's office into the letter. The substance of the letter also related steps that the Congressman's office had purportedly taken on behalf of Tomsha–Miguel's client. In light of these facts, a jury could reasonably conclude that these actions constituted an effort to “assume to act in the pretended character” and amounted to impersonation of a federal officer or employee.

B.

Tomsha–Miguel also argues that, even if the jury could find that her actions met the impersonation element under the first part of § 912, the government failed to present sufficient evidence to show that she “acted as such,” as further required by the statute. According to Tomsha–Miguel, after fabricating the letter from William G. Darton, she took no further action on behalf of the fictional aide. This is so, she argues, because although Garcia was the addressee, the letter was addressed to herself (“Dear Ms. Tomsha–Miguel”) and was sent to Garcia in care of (“c/o”) herself. Further, after preparing the letter, she faxed the letter to Garcia as if she were sharing with her client a letter that she had received from the Congressman's office. Tomsha–Miguel contends that these facts are insufficient to satisfy the “acting as such” element of § 912.

We have not previously addressed the precise issue presented by this case. Our sister circuits, however, have generally agreed that § 912 requires only that the government show “any overt act consistent with the assumed character.” United States v. Cohen, 631 F.2d 1223, 1224 (5th Cir.1980). Although a defendant must engage in actions that go beyond “mere bravado,” United States v. Robbins, 613 F.2d 688, 692 (8th Cir.1979), it is sufficient to show that the defendant “falsely assumed and pretended” and committed an act in keeping with that assumed character, Cohen, 631 F.2d at 1224; see also United States v. Gayle, 967 F.2d 483, 487 (11th Cir.1992) (en banc) (adopting the Cohen standard). Thus, in Cohen, the Fifth Circuit held that an indictment alleging that Cohen...