United States v. Susan Tomsha-Miguel
2014 U.S. App. LEXIS 17238
| 9th Cir. | 2014Background
- Tomsha‑Miguel, owner of a small tax-preparation business, photocopied Congressman Dennis Cardoza’s official letterhead, drafted a letter signed as fictional aide “William G. Darton,” and faxed it to her client to assuage a tax dispute.
- The Congressman’s office identified the letter as fraudulent; the FBI investigated, and Tomsha‑Miguel admitted creating and transmitting the letter.
- A grand jury indicted her under 18 U.S.C. § 912 (impersonating a federal officer/employee). She moved to dismiss on First Amendment and indictment‑defect grounds and sought to assert lack of intent to defraud as an affirmative defense; the district court denied relief.
- At trial she moved for acquittal; the motion was denied. The jury convicted her; she received probation and community service and appealed.
- On appeal Tomsha‑Miguel challenged (1) sufficiency of the evidence (impersonation and “acted as such”), (2) prosecutor misconduct, (3) § 912’s constitutionality under the First Amendment, and (4) the indictment’s failure to allege intent to defraud / denial of the affirmative‑defense request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — impersonation element | Tomsha‑Miguel argues she didn’t impersonate a federal employee because the letter was addressed to and routed through her (c/o), so she didn’t present herself as the official | Government: forging letterhead, inventing an aide, signing the aide’s name, and sending the letter to the client are acts assuming the pretended character | Court: Evidence sufficient — creating letter on official letterhead and signing as a fictional aide supports impersonation under Lepowitch standard |
| Sufficiency — "acted as such" element | Tomsha‑Miguel: after drafting the letter she took no further acts in the aide’s persona; sending it c/o herself is not acting as the official | Government: transmitting the fraudulent letter to the client was an overt act consistent with the assumed character and intended to induce reliance | Court: Adopted Cohen/Gayle approach — any overt act consistent with assumed character suffices; transmission to client met this element |
| Prosecutorial misconduct | Tomsha‑Miguel: prosecutor’s opening/closing/rebuttal improperly appealed to community values and attacked defense counsel, prejudicing trial | Government: arguments were within advocacy bounds and focused on harm from impersonation | Court: Remarks fell within normal advocacy; no plain error and no reversal warranted |
| First Amendment — content‑based / overbreadth | Tomsha‑Miguel: § 912 is a content‑based restriction on speech that fails strict scrutiny and is overbroad (would chill parodies, theater, mock exercises) | Government: § 912 targets deceptive conduct (impersonation), protects government integrity, and is unrelated to suppressing particular viewpoints; intermediate scrutiny applies | Court: Applied intermediate scrutiny (O’Brien); held § 912 constitutional because it targets intentionally deceptive conduct and is narrowly tailored to substantial governmental interests |
| Indictment / intent to defraud / affirmative defense | Tomsha‑Miguel: indictment should have alleged intent to defraud; she should be allowed to assert lack of intent to defraud as an affirmative defense | Government: After Lepowitch and the 1948 recodification, § 912 does not require a separate intent‑to‑defraud element; intent is implicit in the conduct alleged | Court: Affirmed precedent — indictment need not plead intent to defraud; lack of intent is not a separate element and not an affirmative defense under § 912 |
Key Cases Cited
- Lepowitch v. United States, 318 U.S. 702 (Sup. Ct. 1943) (impersonation requires assuming to act in pretended character; intent to deceive is implicit)
- United States v. Alvarez, 567 U.S. 709 (2012) (plurality) (false speech doctrine; notes permissible regulation of impersonation to protect government integrity)
- United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980) (§ 912 satisfied by any overt act consistent with assumed character)
- United States v. Gayle, 967 F.2d 483 (11th Cir. 1992) (en banc) (adopting Cohen standard that holding oneself out as an agent suffices)
- United States v. Perelman, 695 F.3d 866 (9th Cir. 2012) (applying intermediate scrutiny to expressive conduct involving false military medals; treats § 912 as addressing intentionally deceptive conduct)
- United States v. O’Brien, 391 U.S. 367 (1968) (test for assessing government regulation of expressive conduct)
- Rumsfeld v. FAIR, 547 U.S. 47 (2006) (incidental burdens on speech permissible if regulation advances substantial interest less effectively achieved otherwise)
- United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (standard for reviewing sufficiency of the evidence)