Before the 1948 revision, 18 USC 912 made "intent to defraud" an essential element of both offenses. The words "intent to defraud" are omitted from the present language of section 912 because the decision in United States v. Lepowitch, 318 U.S. 702 (1943), appears to render them meaningless. Reviser's Note, 18 U.S.C. § 912 (1948). Only the first offense was directly considered in Lepowitch, which held that "intent to defraud" did "not require more than the defendant had, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct." The court said of the second offense, however, that "more than a mere deceitful attempt to affect the course of action of another is required" because that clause of the statute "speaks of an intent to obtain a "valuable thing." One court of appeals now doubts that Lepowitch renders the requirement of fraudulent intent meaningless and holds that it continues to be an essential element of the second offense where it means "an intent to wrongfully deprive another of property." See Honea v. United States, 344 F.2d 798, 802-03 (5th Cir. 1965). Furthermore, United States v. Randolph, 460 F.2d 367, 370 (5th Cir. 1972), held that "intent to defraud" is an essential element of prosecution under Part I of 18 U.S.C. § 912. Contrary views have been expressed in United States v. Cord, 654 F.2d 490 (7th Cir. 1981); United States v. Rosser, 528 F.2d 654 (D.C. 1976); United States v. Rose, 500 F.2d 12 (2d Cir. 1974), vacated on other grounds, 422 U.S. 1031 (1975); United States v. Mitman, 459 F.2d 451 (9th Cir. 1972); United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967).
[cited in USAM 9-64.300]