Argued and Submitted, San Francisco, California May
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:12-cr-00153-LJO-SKO-1. Lawrence J. O'Neill, District Judge, Presiding.
The panel affirmed a conviction for impersonating an officer or employee of the United States in violation of 18 U.S.C. § 912, in a case in which the defendant, the proprietor of a tax services business center, in an attempt to assuage the concerns of a client, prepared a letter responding to her client's tax problems using the letterhead of a United States Representative, signed the letter on behalf of a fictional congressional aide, and faxed the letter to the client from her fax machine.
The panel rejected the defendant's contention that there was insufficient evidence to support her conviction. The panel held that a jury could reasonably conclude that the defendant's actions (1) constituted an effort to " assume to act in the pretended character" and amounted to impersonation of a federal officer or employee, and (2) were " consistent with the assumed character" of a government official and in furtherance of the impersonation.
The panel held that the prosecutor's comments at trial were not improper and did not meet the plain error standard.
Rejecting the defendant's contention that § 912 is an unconstitutional restriction on speech, the panel applied intermediate, rather than strict, scrutiny because § 912 criminalizes conduct with " an expressive element" as distinct from pure speech. The panel held that because it promotes the goals of governmental integrity and maintaining the good repute of governmental service, § 912 survives intermediate scrutiny. The panel rejected the defendant's contention that § 912 is facially overbroad.
Because the government need not establish an intent to defraud as a separate element of a § 912 offense, the panel held that the district court did not err in denying the defendant's motion to dismiss the indictment for failure to allege such intent, nor in preventing her from raising her lack of intent to defraud as an affirmative defense.
Dissenting, Judge W. Fletcher would hold that the defendant did not assume or pretend to be a federal employee.
Heather Williams, Federal Public Defender, and Jeremy S. Kroger, Assistant Federal Public Defender (argued), Fresno, California, 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.
Before: Susan P. Graber, William A. Fletcher, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez; Dissent by Judge W. Fletcher.
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.
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. 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 ...