Appeal from judgment of the United States District Court for the Eastern District of New York, Jacob J. Mishler, Chief Judge, without a jury, convicting appellant of violating 18 U.S.C. § 912 by falsely personating an Army member and obtaining a loan from the Army Emergency Relief. Held, since false federal personation was necessary to obtain loan, statute was applicable. Judgment affirmed.
Kaufman, Chief Judge, Oakes and Gurfein, Circuit Judges.
This appeal involves one not so simple question concerning the construction of the statute, 18 U.S.C. § 912, relating to impersonation of a federal officer, a statute that has been in the books with only certain minor modifications since 1884. Act of 1884, ch. 26, 23 Stat. 11. On a stipulation of facts the appellant was tried in the United States District Court for the Eastern District of New York, Jacob J. Mishler, Chief Judge, without a jury. Appellant was convicted of falsely personating an employee of the United States and in such pretended character demanding and obtaining a sum of money -- a loan of $200 from Army Emergency Relief -- under the statute. He appeals from his sentence of three years' probation, the execution of which was stayed pending appeal.
The stipulated facts were that appellant identified himself as a current member of the United States Army, 552d Engineers, Fort Knox, Kentucky, by obtaining first a request for leave form from the Headquarters Company of the United States Army Chaplain School and then a temporary ID card from the Identification Section on the basis of a representation that his wallet with his identification had been stolen. He had obtained papers from the New York City Police Department indicating that he had lost his wallet. He then applied to Army Emergency Relief, claiming that he was on leave, had been robbed and needed $200 to pay his hotel bills and return to Kentucky. While monies of the Army Emergency Relief are not United States Government funds, only active duty and retired military personnel and their dependents are entitled to them. Army Emergency Relief gave Etheridge a loan of $200 in the form of a check which he cashed. He shortly thereafter obtained a permanent identification card and proceeded to the Base Finance Office and received $65 partial pay. On his second trip to the Finance Office he was found out and surrendered. Throughout these events he was not a member of the United States Army.
18 U.S.C. § 912 provides 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.
Appellant, while conceding that through his false personation or pretense he did obtain a thing of value, claims that he did not "assume or pretend to be . . . acting under the authority of the United States or any department, agency, or officer thereof . . .. Rather, he argues he was not purporting to act on behalf of the Government; he was acting only on behalf of himself. To interpret the act otherwise, his argument runs, would be to render the clause "acting under the authority of the United States" unnecessary in that it would have been sufficient for the statute simply to have said "whoever falsely assumes or pretends to be an officer or an employee of the United States . .." His argument at least in the abstract derives support from two reported cases, United States v. York, 202 F. Supp. 275 (E.D. Va. 1962), and United States v. Grewe, 242 F. Supp. 826 (W.D. Mo. 1965), and one unreported one, United States v. Martin, No. 31902-CD (S.D. Cal. July 15, 1963). He argues further that there is a Department of Justice "administrative practice" as set forth in Memo No. 784, dated August 31, 1973 (hereinafter Department of Justice Memo), from the Assistant Attorney General in charge of the Criminal Division to all United States Attorneys, that "unless the subject has also pretended to be acting under color of Federal authority or expressly or implicitly suggested that the valuable thing demanded or obtained was necessary for the performance of his official duty," id. at 16, the Department's policy is not to initiate prosecution where all that the impersonator has done is apply for credit, register for lodging or cash a personal check. In the light of our recent United States v. D'Amato, 507 F.2d 26 (2d Cir. 1974), slip op. at 575, 577 (false statement statute, 18 U.S.C. § 1001), it is argued that while this "policy" does not control the question of statutory construction it does partake of an administrative or prosecutorial interpretation as to the application of the statute.
We deal with the post-argument "administrative practice" contention first. In United States v. D'Amato, supra, we noted that no case had ever held the false statement statute, 18 U.S.C. § 1001, applicable in private civil litigation. The absence of cases under the statute, essentially unchanged since 1934, was treated as an administrative interpretation of its applicability. Here, however, we have an administrative memo responding to two district court cases, United States v. Grewe, supra, and United States v. York, supra (although no court of appeals case). The Departmental Policy announced in the memo we read to be just that -- policy limited to the facts of those two cases. We therefore turn to an examination of the statute, its history and the decided cases in an effort to determine its applicability to the case at hand.
A predecessor to this statute was § 32 of the Criminal Code of March 4, 1909, ch. 321, § 32, 35 Stat. 1088, 1095. In United States v. Barnow, 239 U.S. 74, 60 L. Ed. 155, 36 S. Ct. 19 (1915), it was held to prohibit two separate offenses: one, falsely assuming or pretending to be an officer or employee acting under the authority of the United States or any department or officer of the Government, and taking upon oneself to act as such, in other words, false pretense plus an overt act; two, "falsely assuming or pretending to be an officer or employe[e], etc., and in such pretended character demanding or obtaining" from anyone or from the Government any money, etc., or other valuable thing. Id. at 75. The Court held that the statute stated an offense even though the person charged was falsely personating a suppositious employee of the Government who never existed in fact or whose class never existed. In so holding, the Court through Mr. Justice Pitney upheld the authority of Congress to enact the statute on the basis that it was important that the "spirit of respect and goodwill for the government and its officers sh[ould] generally prevail." Id. at 78. Barnow held that since it is "the false pretense of Federal authority that is the mischief to be cured" it mattered not whether the pretender named an existing or nonexisting office or officer. Id. at 78.
In Lamar v. United States, 241 U.S. 103, 60 L. Ed. 912, 36 S. Ct. 535 (1916), the charge was one of falsely assuming and pretending to be a member of Congress with the intent to defraud certain named individuals; the defendant, Lamar, was alleged to have taken upon himself to act as such member of Congress. It does not appear whether Lamar represented that he was acting on behalf of the United States or whether he obtained something of value as a congressman acting in his personal capacity since there is no published district court decision and neither the court of appeals, 227 F. 1019, nor the Supreme Court recites the facts. One gathers from the appellant's argument, however, 241 U.S. at 104, that it was not charged or proven that the defendant pretended to act "under the authority of the United States." The Solicitor General argued that "It is not necessary that defendant's pretense be to act lawfully under the authority of the United States." 241 U.S. at 106. The Solicitor General cited Littell v. United States, 169 F. 620 (9th Cir. 1909), and United States v. Ballard, 118 F. 757 (W.D. Mo. 1902), in addition to Barnow.
Lamar stands for rejection of the contention that "no offense was stated since it was not charged that in pretending to be an officer the accused did an act which he would have been authorized to do under the authority of the United States had he possessed the official capacity which he assumed to have." 241 U.S. at 113-14. The Court held that the doing in the falsely assumed role of any overt act, whether it would have been legally authorized had the assumed capacity existed or not, was prohibited by the statute because the "words 'acting under the authority of the United States' are words designating the character of the officer or employee whose personation the clause prohibits . . . [not words] applied only as limiting and defining the character of the overt act from which criminality is to arise . . .." 241 U.S. at 114 (emphasis added). The Court goes on to say that its construction of "acting under the authority of the United States" is impelled by virtue of the fact that in clause 2 "there is no reexpression of the prohibition against assuming or pretending contained in the first clause except as that prohibition is carried over and made applicable to the second by the words 'or shall in such pretended character demand,' etc." 241 U.S. at 215. The Court significantly goes on to say that
as it is obvious that the acts made absolutely criminal by the second clause are acts which may or may not have been accomplished as the result of exerting in the pretended capacity an authority which there would have been a lawful right to exert if the character had been real and not assumed, it results not only that the conflict which we have indicated would arise from adopting the construction claimed, but the error of such contention as applied to the first clause is conclusively demonstrated."
241 U.S. at 115 (emphasis added). Thus the Court construes clause 2, the "or in such pretended character" clause here in question, as prohibiting acts which may or may not have been accomplished as the result of exerting in the pretended capacity the authority of the United States or of a department or officer thereof. Without necessarily being a direct decision, Lamar at the very least, we think, gives us a strong indication that the clause "acting under the authority of the United States" goes solely to designate the character of the officer or employee and not to limit or define the character of the overt act ...