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1474

Element of 18 USC 912—"Acts as Such"

The distinguishing element of the first offense in Section 912 is acting as the officer impersonated. This element requires something more than a mere false pretense. The act that completes a violation of this section must be something more than merely an act in keeping with the falsely assumed character. United States v. Rosser, 528 F.2d 654 (D.C. 1976); United States v. Hamilton, 276 F.2d 96, 98 (7th Cir. 1960). For the indictment to be sufficient, the act charged must be something more than mere repetition of the pretense. See Ekberg v. United States, 167 F.2d 380 (1st Cir. 1948); Baas v. United States, 25 F.2d 294 (5th Cir. 1928); United States v. Larson, 125 F. Supp. 360 (D.Alaska 1954). Hence, in United States v. Larson an indictment alleging that a defendant acted as the officer impersonated by representing that he was an FBI agent engaged in the investigation of a criminal violation, was held to not state an offense. However, an allegation that a defendant acted as such by representing himself to be an IRS agent engaged in locating the whereabouts of a named person who was a recent tenant of the person to whom the statement was addressed, was held sufficient in United States v. Harth, 280 F. Supp. 425 (W.D.Okla. 1968).

It is not necessary that the act be one which the pretended officer would have authority to perform if he were in fact the officer he represents himself to be. Lamar v. United States, 240 U.S. 60 (1916); United States v. Hamilton, 276 F.2d at 98. Nor is it necessary that there be in fact such an officer as the defendant pretends to be. Caruso v. United States, 414 F.2d 225, 227 (5th Cir. 1969).

[cited in USAM 9-64.300]