Lead Opinion
Following a jury trial in the United States District Court for the Western District of Arkansas, defendant Don Lyndall Robbins was convicted of impersonating an FBI agent in violation of 18 U.S.C. § 912.
The evidence at trial established that during late 1977 and early 1978 the defendant represented to several persons that he was an FBI agent, or a “NARC.” In order to affirm his identity as a federal officer he exhibited to some of these people, at various times, a pistol, a set of handcuffs, and an identification card with a badge.
The evidence specifically established that Robbins told his girlfriend, Cheryl Jacobs, that he was an undercover narcotics agent for the Department of Justice. He continued this impersonation, making рhone calls in front of Ms. Jacobs while pretending to use a government credit card number and carrying handcuffs and a pistol everywhere he went. On one occasion, the defendant stated to Ms. Jacobs that he had been shot at, and requested that she send some of the expended cartridges to the FBI office in Little Rock. Ms. Jacobs testified that the defendant came over the following night
On other occasions, the defendant purchased an automobile from John Harmon, and chartered an airplane from William R. Patterson, stating to each that he was a narcotics agent. Patterson testified that he saw handcuffs on the defendant at one time. Later, the defendant opened a checking account at a bank in Hot Springs, representing that he was employed by the Department of Justice.
In January of 1978, the defendant entered Denim & Duds, a Hot Springs business establishment, and in response to a question from the owner, Bill Baswell, he represented that he was an FBI agent and showed Baswell a badge and identification card. A day or two later, the defendant entered Denim & Duds and Baswell saw that he was wearing a shoulder holster containing a revolver and also saw a pair of handcuffs. The defendant did not arrest anyone, look for business records, ask any official questions, or handcuff anyone. Baswell stated that all of the transactions he had with the defendant were personal. Nevertheless, he became suspicious and called the FBI to check on the defendant’s identity, and Robbins was arrested.
Prior to the trial, counsel for defense moved to dismiss the indictment for failing to state facts sufficient to allege an offense under 18 U.S.C. § 912. The motion was denied, but the argument was raised again in the defendant’s motion for a directed verdict, which claimed that the prosecution had failed to prove an offense under the statute. Following the denial of this motion, Robbins’ attorney declined to offer any evidence on behalf of his client.
I. Sufficiency of the Indictment and Proof
Appellant first argues that the motions for dismissal and directed verdict should have been granted because the indictment and evidence failed to allege or establish any acts which would constitute a crime against the United States under 18 U.S.C. § 912. We disagree.
18 U.S.C. § 912 sets out two distinct crimes: the first, where one “pretends to be an officer or employee acting under authority of the United States * * * and acts as such,” and the second, where one “in such pretended charаcter demands or obtains any money, paper, document, or thing of value * * We are dealing here with the first offense (hereinafter referred to as section 912(1)) which has as its two elements the impersonation of an officer and acting as such. An indictment under section 912(1) must allege, therefore, facts sufficient to constitute an “act” within the meaning of the statute. United States v. Harmon,
One of the appellant’s аssignments of error is that the indictment failed to allege an “intent to defraud.” This approach is followed by the Fifth Circuit, and is based on that court’s interpretation of a change in the language of the statute, which came about with the revision of the penal code in 1948. The offense of impersonating a federal officer prior to 1948 was contained in 18 U.S.C. § 76 (1946):
*691 Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the'Government thereof, or under the authority of any corporation owned dr controlled by the United States, and shall take upon himself to act as such * *3
In United States v. Randolph,
We question the wisdom of requiring that an indictment allege an “intent to deceive” when the reviser’s note to the stat-' utory change indicated that the words were rendered “meaningless” by a decision of the United States Supreme Court. Other courts which have considered the question follow the “accepted canon of statutory construction that where Congress has advertently changed the legislative language the change must be given effect.” United States v. Guthrie,
While the weight of authority goes аgainst the rationale of the Fifth Circuit in Randolph, supra, it remains unclear what properly should be contained in an allegation of a criminal offense under the second element of section 912(1). United States v. Rosser,
The Rosser approach helps to explain the reviser’s comment to the 1948 revision of the penal code, wherein it was stated that Lepowitch had rendered the “intent to defraud” requirement “meaningless.” More important, however, is the fact that the language in Lepowitch puts some substance into the “acts as such” element, requiring reliance on the impersonator’s assertion of authority, without resorting to the language that Congress left out of the revised penal code.
The appellant asserts that our adoption of the Rosser approach would require us to reverse the district court’s denial of the motion to dismiss and the motion for directed verdict. It is argued that Robbins impersonated an FBI agent but did not “act as such” by asserting the authority of an FBI agent. Thus, the indictment did not allege any assertion of an agent’s authority and the prosecution failed to prove the same. We disagree with both conclusions.
In United States v. Hamilton,
I don’t think that any citizen of the type that Mrs. Martin was, and her husband, would ever have tolerated a citizen under the circumstances * * * that day in her home, this afternoon or the subsequent day, tо be going through her house with a gun on his person and visible to other people. * * * I don’t think that is exactly a case of idle boasting, * * * claiming he is an Agent of the Federal Bureau of Investigation. Here’s a man that is carrying a gun, and he is a mature man.
While we are persuaded that the Rosser approach most accurately states the elements of a section 912(1) offense, we conclude that even under these standards the prosecution, by showing that Robbins carried a gun and handcuffs and did so in cashing a check and carrying on his business, alleged and proved acts sufficient to comply with the “acts as such” requirement of the statute.
II. Evidence of Other Similar Acts
The appellant also argues that the jury was prejudiced by the testimony of Cheryl Jacobs, John Harmon and William R. Patterson, because each of these witnesses referred to other crimes, wrongs or acts which were not alleged in the indictment. Normally, such evidence is inadmissible. Rules 404(b) and 403 Federal Rules of Evidence prohibit the introduction of such evidence unless it falls within one of the well-recognized exceptions to the rule, and unless its probative value outweighs its prejudicial effect.
At the outset, it should be pointed out that we remain unconvinced — as Judge Harris was unconvinced — that all of the testimony in question refers to other crimes, wrongs or acts which were not alleged in the indictment. Appellant urges us to interpret the indictment as charging Don Robbins only with the events at Denim & Duds.
An examination of the evidence demonstrates that some of the disputed testimony was offered to show only that Robbins identified himself as an agent of the FBI. No overt acts were mentioned, for example, in John Harmon’s testimony about the defendant’s purchase of an automobile. Cheryl Jacobs testified that the defendant carried on a pattern of impersonation throughout the period in which they were dating and in which they eventually became engaged. She stated that during this time Robbins always carried a gun, and was doing so whenever they visited Denim & Duds together. Most of her testimony either verified the testimony of Bill Baswell or concerned her personal relationship with Robbins. The only objection to her testimony came in response to her account of the evening on which Robbins came tо her apartment, bloody and ragged, claiming he had just beaten a person who had fired a gun at him the night before. He was carrying a bloodied roll of pennies which he said was in his fist during the altercation. This testimony seems primarily directed toward establishing a pattern of impersonation by way of Don Robbins’ boasting, rather than referring to overt acts in carrying out the impersonation.
William Patterson testified that the defendant identified himself as a NARC, and on one occasion showed him a set of handcuffs. Robbins never actually identified himself as a federally employed NARC, however, which is essential to the charge of impersonating a federal officer. To this extent, it would seem that the events referred to in Mr. Patterson’s testimony are outside of the scope of the indictment, and could be considered other “crimes, wrongs or acts.”
Despite the fact that portions of the disputed evidence are not related to the specific charges in the indictment, the testimony is nevertheless admissible under the exceptions stated in Rule 404(b), Federal Rules of Evidence. Furthermore, in view of the nature and scope of the testimony, and the cautionary instructions of the trial judge, we would be hard pressed to hold, under Rule 403, Federal Rules of Evidence, that the prejudicial effect of the evidence outweighed its probative value.
The rules for the admission of other crimes evidence are well established, and the court recently set out the requirements which must be met:
(1) a material issue on which other crimes evidence may be admissiblе has been raised, e. g., United States v. Drury,582 F.2d 1181 , 1184 (8th Cir. 1978); United States v. Maestas,554 F.2d 834 , 837 (8th Cir.), cert. denied,431 U.S. 972 ,97 S.Ct. 2936 ,53 L.Ed.2d 1070 (1977); (2) the proffered evidence is relevant to that issue, ibid.-, (3) the evidence of the other crimes is clear and convincing, e. g., United States v. Cobb,588 F.2d 607 , 612 (8th Cir. 1978), cert. denied,470 U.S. 947 ,99 S.Ct. 1426 ,59 L.Ed.2d 636 (1979); United States v. Drury, supra,582 F.2d at 1184 ; United States v. Davis,551 F.2d 233 , 234 (8th Cir.), cert. denied,431 U.S. 923 ,97 S.Ct. 2197 ,53 L.Ed.2d 237 (1977). In addition, to be admissible on such issues as intent, knowledge or plan, the other crimes evidence must relate to wrongdoing “similar in kind and reasonably close in time to the charge at trial.” United States v. Drury, supra,582 F.2d at 1184 . See, e. g., United States v. Little,562 F.2d 578 , 581 (8th Cir. 1977); United States v. Jardan,552 F.2d 216 , 219 (8th Cir.), cert. denied,433 U.S. 912 ,97 S.Ct. 2982 ,53 L.Ed.2d 1097 (1977). Finally,*694 evidence otherwise admissible under Rule 404(b) may be excluded under Fed.R. Evid. 403, “if its probative value is substantially outweighed by the danger of unfair prejudice * * *
United States v. Frederickson,
In the present case, most of the testimony is relevant to the material issues involved in proving the first element of an offense under 18 U.S.C. § 912(1). Furthermore, the testimony is clear and convincing, insofar as it establishes a pattern or plan of impersonation of a federal officer or official. Finally, by virtue of the fact that the evidence shows a scheme of impersonation identical tо that mentioned in the indictment and took place within a two-month period, it is obvious that the testimony was similar in kind and reasonably close in time to the charge at trial.
Counsel for the appellant argues that the introduction of the testimony into evidence is prohibited under the rule set forth in United States v. Fierson,
While we do not necessarily agree with this rationale, we are faced with a much different situation here. Although intent was never a disputed issue at the trial,
As this court recently stated:
While it is generally impropеr to admit evidence of a defendant’s criminal acts not charged in the indictment, “evidence of other crimes may be presented when ‘they are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged’ ” United States v. Miller,508 F.2d 444 , 448-49 (7th Cir. 1974).
United States v. Derring,
Our final task is to consider the probative value of the evidence as opposed to its possible prejudicial effect. As this court stated in United States v. Maestas,
*695 Fed.R.Evid. 403 authorizes the district court to exclude such evidence, even though relevant, “if its probative value is substantially outweighed by the danger of unfair prejudice . . . Our task is to assess the relevancy and the probative value of the challenged evidence; if it meets the requirements of Rule 404(b) we may not reverse the ruling of the District Court unless we also find'thаt the prejudice from admitting the evidence substantially outweighed its probative value. In making that evaluation, we must give great deference to the district judge, who saw and heard the evidence. United States v. Nichols,534 F.2d 202 (9th Cir. 1976); United States v. Gocke,507 F.2d 820 , 824 (8th Cir. 1974), cert. denied,420 U.S. 979 ,95 S.Ct. 1407 ,43 L.Ed.2d 660 (1975); United States v. Skillman,442 F.2d 542 , 551-52 (8th Cir.), cert. denied,404 U.S. 833 ,92 S.Ct. 82 ,30 L.Ed.2d 63 (1971).
Id. at 836. During the trial, Judge Harris explained to the jury that the testimony of Patterson and Harmon was admitted only to show motive, intent, plans, knowledge and identity, but was not admitted to show that the defendant acted in conformity with the character traits referred to by the witnesses. Furthermore, the same admonition was repeatеd in the judge’s instructions to the jury.
Accordingly, we affirm the decision of the district court.
Notes
. 18 U.S.C. § 912 provides that:
Whoever falsely assumes or pretends to be an officer or employee acting under 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 not more than $1,000 nor imprisoned more than three years, or both.
. The indictment for Count II reads as follows:
That on or about the 17th day of January, 1978, in the Western District of Arkansas, Hot Springs Division, DON LYNDALL ROBBINS did falsely pretend to be an employee of the United States, acting under the authority thereof, that is, an employee of the Federal Bureau of Investigation of the United States Government, and did falsely take upon himself to act as such, in that he falsely stated to Bill Baswell that he was an employee of the United States Government, Department of Justice, Federal Bureau of Investigation, and did display a badge and a picture in an ID folder, a set of handcuffs, and a pistol, all in violation of Section 912, Title 18, United States Code.
(Count I of the indictment was dismissed on the prosecution’s motion.)
. United States v. Lepowitch,
. See note 3, supra.
. In this respect we differ with the dicta set forth in United States v. Rosser, supra,
. Rule 404(b) reads as follows:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person • in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 403 reads as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. The trial record shows that Judge Harris initially responded to appellant’s objection by stating that the indictment is “not limited to what happened at Denim and Duds. It’s a charge as tо the impersonating of an F.B.I. agent, and the fact that he did it in accordance with what is alleged in the indictment by mak
. The defense presented no evidence whatsoever. Counsel for the defense did not dispute intent, but rather challenged only the sufficiency of the indictment and the admission of the testimony into evidence.
. See Carter v. United States,
. United States v. Calvert,
. The Advisоry Committee Note to Fed.R. Evid. 403 provides that “[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.” See United States v. Maestas,
Dissenting Opinion
dissenting.
I dissent. The government has neither alleged nor proved that the defendant “acted” as a federal officer within the meaning of 18 U.S.C. § 912. The majority concedes that the first offense in that section “has as its two elements the impersonation of an officer and acting as such.” (Emphasis included.) The Court finds that the second element is satisfied because “[t]he carrying of a pistol, handcuffs, identification card and a badge go beyond ‘mere bravado.’ These actions are integral parts of the official routine of an FBI agent.”
I do not agree that donning the costume of a federal officer constitutes an “act” sufficient to satisfy the second element of the offense. Dressing as an FBI agent is a part of the false pretense, not a separate overt act as a federal officer. As the Court of Appeals for the District of Columbia said in United States v. Rosser,
In my view, Congress intended § 912 to proscribe more serious conduct than that involved in this case. The “acts as such” element of § 912 should be found to be satisfied only if there has been an attempt to “exercise pretended authority,” the real mischief Congress . intended to prohibit. See United States v. Rosser, supra
The majority suggests that overt acts by the defendant may be inferred from the reactions of those around the defendant. “[W]e are convinced,” the court states, “that the evidence showed that the people who tolerated [the carrying of a pistol, handcuffs, identification card and a badge]
In addition, a review of the record reveals a second ground requiring reversal of the defendant’s conviction. In his final argument, one of the prosecutors, James Gutensohn, made a number of remarks that could only have been intended to appeal to the prejudices of the jury. For example, Gutensohn stated:
[LJadies and gentlemen of the jury, the hour is growing late. You’ve been here for several hours today, all brought on by the action and conduct of this man here. * * * Now, if he had devoted as much time to getting a job, rather than acting [as] an F.B.I. agent and going around falsifying himself * * * you wouldn’t be here today. This expense in trying this case would not be heaped upon you and other people.
This attempt to place the blame for the trial on the defendant was highly improper. This Court has consistently held that “the arguments of counsel must be confined to the issues of the case, the applicable law, pertinent evidence, and such legitimate inferences as may properly be drawn.” United States v. Quinn,
Similarly improper were Gutensohn’s repeated suggestions that the jury members were the victims of the defendant’s actions:
[The FBI was created for] your protection. For the protection of your bank. For the protection of your businessmen, and for the protection of you people. * * [The defendant accumulated] a gun [and] other implements that an officer is permitted to wear * * * for one purpose. And that was to create the image — hold himself out, represent himself to you people that he was an F.B.I. agent.
Again, these statements were irrelevant to the issues at trial. No legitimate purpose was served by such an appeal to the fears and biases of the jury.
Defense counsel made no objection to the prosecutor’s argument. Although failure to raise an issue at trial ordinarily precludes appellate review of that issue, a Court of Appeals may consider such issues in order to avoid a miscarriage of justice. See Singleton v. Wulff,