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1477

Criminal Division Recommendation—18 USC 912

Section 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 Criminal Division's recommendation is that generally in situations which involve the impersonation of a federal officer or employee, coupled with an application for credit, registration for lodging, cashing of a personal check or some other similar act, prosecution should not be initiated under the second part of 18 U.S.C. § 912 unless the subject has also pretended to be acting under color of federal authority or has expressly or implicitly suggested that the valuable thing demanded or obtained was necessary for the performance of his official duty. The basic procedure to follow when deciding whether to prosecute such cases under the second part of 18 U.S.C. § 912 is to determine whether the benefit is purported to run to the federal government or to the federal employee in his capacity as a private citizen. In the case of the latter, there should be no prosecution under the second part of 18 U.S.C. § 912. The alternatives to prosecution under the first part of 18 U.S.C. § 912 are prosecution under 18 U.S.C. § 701, § 702, and action by state and local authorities.

In deciding whether a false personation case warrants prosecution under the first part of 18 U.S.C. § 912, it should be noted that the distinctive element of the offense under the first part of 18 U.S.C. §  912 is acting as the officer impersonated. This element requires something more than a mere false pretense. There must be some additional overt act in keeping with the pretense. Absent an overt act which is distinguishable from the pretense, prosecution under the first part of 18 U.S.C. § 912 should not be undertaken.

Therefore, when presented with a situation in which a subject has pretended to be a federal officer or employee but has not performed an overt act which is distinguishable from the pretense itself, or has demanded or obtained credit, lodging or some similar benefit but has not pretended to be acting under color of federal authority and has not expressly or implicitly suggested that the valuable thing demanded or obtained was necessary for the performance of his official duty, consideration should be given to referring the matter to state and local authorities for their action, rather than initiating an 18 U.S.C. § 912 prosecution.

[cited in USAM 9-64.300]