1470

False Personation—Elements of the Offenses

18 USC 912 defines two separate and distinct offenses. The offenses are impersonation coupled with acting as such and impersonation coupled with demanding or obtaining something of value in such pretended character. False personation of an officer or employee of the United States is an element of both offenses. The impersonation must be of a federal officer (see Massengale v. United States, 240 F.2d 781, 782 (6th Cir. 1957)), and may be affected by verbal declarations as well as by the exhibition of a counterfeited badge or a false certificate of authority. Pierce v. United States, 86 F.2d 949, 951 (6th Cir. 1936). Government officials are impersonated by any persons who assume to act in the pretended character. United States v. Lepowitch, 318 U.S. 702 (1943). Thus action alone may amount to a false pretense of federal authority. See Heskett v. United States, 58 F.2d 897, 902 (9th Cir. 1932) (by inquiring about passports, defendants pretended to be federal immigration officers). It has been held that evidence of reliance by the intended victim is admissible because reliance is an essential element of the offense. Haid v. United States, 157 F.2d 630, 632 (9th Cir. 1946). This conclusion seems to originate from a misinterpretation of United States v. Barnow, 239 U.S. 74, 80 (1915), in which the Supreme Court said: "It is the aim of the section not merely to protect innocent persons from actual loss through reliance upon false assumptions of federal authority, but to maintain the general good repute and dignity of the service itself." Id. at 80. Obviously, in cases under 18 U.S.C. § 912 in which a thing of value has been obtained, reliance by the victim is almost always provable. It is the view of the Criminal Division, however, that there is no such reliance requirement inherent in the statute. See Levine v. United States, 261 F.2d 747, 751 (D.C.Cir. 1957). [cited in USAM 9-64.300]