United States v. Derrick Cornelius Gayle, Claude Bertram Hester, 967 F.2d 483, 11th Cir. (1992)

967 F.
2d 483
UNITED STATES of America, Plaintiff-Appellee,

v.
Derrick Cornelius GAYLE, Claude Bertram Hester,
Defendants-Appellants.
No. 90-7500.
United States Court of Appeals,

Eleventh Circuit.
July 24, 1992.
L. Scott Johnson, Jr., Montgomery, Ala., for Gayle.

Thomas M. Goggans, Montgomery, Ala., for Hester.
Louis V. Franklin, Sr., U.S. Attorney's Office, Montgomery, Ala., for U.S.
Appeal from the United States District Court for the Middle District of
Alabama.
Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT,
ANDERSON, EDMONDSON, COX, and BIRCH, Circuit Judges,* and
MORGAN**, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
Claude Bertram Hester and Derrick Cornelius Gayle were convicted of

impersonating federal officers in violation of 18 U.S.C. 912. Both men
challenged their convictions, contending that the indictment was insufficient
because it failed to allege an "intent to deceive" and because it failed to assert
separate overt acts beyond the impersonation of officers. A panel of this court,
finding itself bound by pre-1981 Fifth Circuit law, reversed the convictions.
United States v. Gayle, 936 F.2d 1234 (11th Cir.1991). A majority of the
judges of this court in regular active service voted that this case be reheard en
banc. United States v. Gayle, 948 F.2d 1572 (11th Cir.1991).1 On rehearing we
affirm the district court and uphold the convictions. We hold that section 912
indictments need not allege an "intent to deceive." Further, the indictments need
not allege separate overt acts beyond the general allegation of acting
consistently with the assumed character.
I. The Facts
2
In October 1989, two sisters, Cynthia Kirkland and Eulanda Jones, were
driving home from Southern Technical College in Montgomery, Alabama.
Kirkland drove, and Jones sat in the passenger seat. They soon became aware
that the car behind them was following very closely. That car was driven by
appellant Hester with appellant Gayle in the passenger seat. Kirkland changed
lanes and attempted to let Hester pass, but Hester continued to follow the
women. Fearing that the men were trying to harass them, the women agreed to
change their course and drive to the Revco Distribution Center, where their
brother Jerry Jones was employed. Before reaching this destination, however,
Hester's car crashed into the back of Kirkland's car. Kirkland then pulled to the
side of the road. Hester drove his car around Kirkland's car and stopped in front
of it.
Kirkland and Hester got out of their cars, and Kirkland demanded to know why
the men were following them and why they had hit her car. According to
Kirkland, Hester informed her that he was Charles Buchanan of the F.B.I. He
also stated that he was assisting sheriff John Hewlett in the investigation of a
car accident, and that her car was one of the cars involved. At some point
during the ordeal, the women noticed that the front license plate of Hester's car
stated "F.B.I." in large letters. The women did not notice that the plate also said
"Female Body Inspector" in smaller letters beneath the "F.B.I." lettering. The
women also observed defendant Gayle talking into a cordless telephone which
was later found to be inoperative.
After Hester and Kirkland had been arguing for a few minutes, Gayle emerged
from the car with a pad and pencil and wrote down Kirkland's license plate
number. Hester told Gayle to "call in" the number, and Gayle went back and
pretended to call on the cordless phone. At Kirkland's direction, Jones ran to the
Revco Distribution Center and returned a few minutes later with their brother,
Jerry Jones. When Jerry Jones asked Hester for identification, Hester replied
that he was Charles Buchanan of the F.B.I. and that he did not need to provide
identification. One of the appellants also stated at some point that they would
have to take the women "downtown." When Jerry Jones' supervisor arrived to
investigate the situation, Hester and Gayle returned to their car and left the
scene.
Hester and Gayle each were indicted for impersonating a federal officer and
acting as such in violation of 18 U.S.C. 912, and for detaining persons while
impersonating a federal officer in violation of 18 U.S.C. 913. The jury
returned verdicts of guilty for each defendant on the section 912 charge.
II. Intent to Defraud
6
A criminal conviction will not be upheld if the indictment upon which it is

based does not set forth the essential elements of the offense. United States v.
Italiano, 837 F.2d 1480, 1482 (11th Cir.1988). This rule serves two purposes.
First, it informs the defendant of the nature and cause of the accusation as
required by the Sixth Amendment of the Constitution. Second, it fulfills the
Fifth Amendment's indictment requirement, ensuring that a grand jury only
return an indictment when it finds probable cause to support all the necessary
elements of the crime. Id. at 1482, 1486. Appellants contend that the indictment
in this case was insufficient because it failed to allege that the defendants acted
with an "intent to defraud" and consequently did not set forth an essential
element of the offense of impersonating a federal officer.2
Section 912 provides:
7
Whoever
falsely assumes or pretends to be an officer or employee acting under the
authority of the United States or any department, agency or officer thereof, and acts
as such, or in such pretended character demands or obtains any money, paper,
document, or thing of value, [shall be guilty of a felony].3
8
Although the statutory language does not mention an intent to defraud,

appellants argue that such an intent is nevertheless an element of the offense.
Appellants' argument is based on the prior wording of the statute, which stated
that "[w]hoever with intent to defraud either the United States or any person"
impersonates a federal officer, and either "acts as such" or demands or obtains a
"valuable thing", shall be guilty of a felony. 18 U.S.C. 76 (1940) (emphasis
added). In 1948, the provision was recodified and amended to its present
language. The Reviser's Notes to that amendment explain that "[t]he words
'with intent to defraud' ... were omitted as meaningless in view of United States
v. Lapowich [sic]." Reviser's Note 18 U.S.C.A. 912 (citing United States v.
Lepowitch, 318 U.S. 702, 63 S.Ct. 914, 87 L.Ed. 1091 (1943)).
10
In Lepowitch, the district court dismissed an indictment under the former

version of the statute because the indictment failed to make sufficient
allegations of an intent to defraud. The Supreme Court reversed, holding that
"the words 'intent to defraud' in the context of this statute, do not require more
than the defendants have, by artifice or deceit, sought to cause the deceived
person to follow some course he would not have pursued but for the deceitful
conduct." Lepowitch, 318 U.S. at 704, 63 S.Ct. at 916. It was apparently this
language which rendered the intent to defraud language "meaningless" to the
revisers of the statute.
11
The issue of how to treat the deletion of the intent to defraud language from the
original statute has been handled in various ways by the courts of appeals.
Seven circuits have held that the government need not plead nor prove intent to
defraud. See Wilkes v. United States, 469 U.S. 964, 105 S.Ct. 364, 83 L.Ed.2d
299 (1984) (White, J., dissenting from denial of certiorari). These seven
circuits, however, have arrived at this result through two different analyses.
12
The Second, Fourth, Seventh, and Ninth Circuits have held that the deletion of
the "intent to defraud" language from the statute entirely eliminated that
element from the offense. These circuits subscribe to the philosophy that:
13cannot be assumed in these circumstances that Congress deleted an element

It
theretofore regarded as essential without intending to affect the meaning of the
statute.... We hold therefore, that 'intent to defraud' is no longer an element of a
charge under part of 912....
14
United States v. Guthrie, 387 F.2d 569, 571 (4th Cir.1967) (brackets in
original); see also United States v. Cord, 654 F.2d 490 (7th Cir.1981); United
States v. Rose, 500 F.2d 12 (2d Cir.1974), vacated on other grounds, 422 U.S.
1031, 95 S.Ct. 2648, 45 L.Ed.2d 688 (1975); United States v. Mitman, 459
F.2d 451, 453 (9th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d
111 (1972).
15
In contrast, the Third, Eighth and D.C. Circuits do not agree that intent to
defraud has ceased to be an element of the crime although they do agree that
"intent to defraud" need not be alleged specifically in the indictment. These
circuits have concluded that in amending the statute, Congress determined that
"intent to defraud," as defined in Lepowitch, is automatically present any time
the other elements of the offense (i.e. acting as such or obtaining something of
value) are proven. Thus, specific language alleging "intent to defraud" would
be surplusage. See United States v. Wilkes, 732 F.2d 1154 (3d Cir.), cert.
denied, 469 U.S. 964, 105 S.Ct. 364, 83 L.Ed.2d 299 (1984); United States v.
Robbins, 613 F.2d 688 (8th Cir.1979); United States v. Rosser, 528 F.2d 652
(D.C.Cir.1976).
16
The former Fifth Circuit, whose decisions are binding on this court, 4 reached a
16
The former Fifth Circuit, whose decisions are binding on this court, 4 reached a
conclusion contrary to both the analyses mentioned above. In Honea v. United
States, 344 F.2d 798 (5th Cir.1965), the court determined that the deletion of
the intent to defraud language of the statute was not intended to change the
substantive elements of the offense, and therefore "[a]n intent to defraud or an
intent to wrongfully deprive another of property is an essential element for a
prosecution under the part of 912." Id. at 802-03. In United States v.
Randolph, 460 F.2d 367, 370 (5th Cir.1972), the court applied this reasoning to
part of section 912.
17
Having reviewed the decisions of the circuits that have addressed this issue, we
are persuaded that the approach taken by the Third, Eighth and D.C. Circuits is
the proper one. The rationale behind that approach was well stated by Judge
Skelly Wright:
18 seems reasonable for Congress to have concluded that virtually everyone who
[i]t
pretends to be an officer or employee of the United States and in some manner
asserts authority by acting "as such" seeks "to cause the deceived person to follow
some course he would not have pursued but for the deceitful conduct."
19
Rosser, 528 F.2d at 656 (citing United States v. Lepowitch, 318 U.S. at 704, 63
S.Ct. at 916). Under this rationale, an indictment under 18 U.S.C. 912 need
not allege an intent to defraud because such intent can be inferred from the
alleged acts. We believe this view is correct and therefore adopt it as the
standard for this circuit. In so doing, we overrule prior precedent as expressed
in United States v. Honea, supra, and United States v. Randolph, supra.
III. Acts as Such

20
Defendants also challenge the indictment as insufficient for failing to allege

that defendants engaged in overt acts beyond the mere impersonation of a
federal officer. They claim that the "acts as such" language of section 912
requires an allegation of separate and additional overt acts. At least one court
supports the defendants' position. United States v. Rosser, 528 F.2d at 657 ("
[T]he act that completes a violation of Section 912 must be something more
than merely an act in keeping with the falsely assumed character"). However,
binding precedent from the old Fifth Circuit, as well as relevant Supreme Court
authority, supports the government's argument that an indictment is sufficient to
satisfy the "acts as such" language if it "alleges any overt act consistent with
the assumed character." United States v. Cohen, 631 F.2d 1223, 1224 (5th
Cir.1980); United States v. Hamilton, 276 F.2d 96, 98 (7th Cir.1960);
Lepowitch, 318 U.S. at 704, 63 S.Ct. at 916; Lamar v. United States, 241 U.S.
103, 114-115, 36 S.Ct. 535, 538-39, 60 L.Ed. 912 (1916).
21
In Lepowitch, the Supreme Court stated "[t]he most general allegation of

impersonation of a government official" satisfies the "act" requirement of
section 912. 318 U.S. at 704, 63 S.Ct. at 916 (emphasis added). In addition, the
Court stated that an indictment under 18 U.S.C. 912 is sufficient if it merely
mimics the language of the statute. Id.
22
Lamar, a case decided before the statute was revised, directly addressed the
question of what acts must be alleged to satisfy the "acts as such" language. In
that case, as here, the indictment alleged no more than that the defendant acted
in violation of the statute by impersonating a federal official5 :
23 defendant] unlawfully, knowingly and feloniously did falsely assume and

[the
pretend to be an officer of the Government of the United States, to wit, a member of
the House of Representatives of the Congress of the United States of America ...
with the intent, then and there, to defraud Lewis Cass Ledyard ... and the said
defendant, then and there, with the intent and purpose aforesaid, did take upon
himself to act as such member of Congress.
24
Lamar, 241 U.S. at 111, 36 S.Ct. at 537-38. The Supreme Court held that this
indictment sufficiently satisfied the "acts as such" language of the statute
because this requirement "designat[es] the character of the officer or employee
whose personation the clause prohibits" and does not serve to "limit[ ] and
define[ ] the overt act from which the criminality arise[s]." Id. at 115, 36 S.Ct.
at 539. Therefore, the Supreme Court did not read into the statute a requirement
that the indictment mention specific additional acts beyond the general
allegation that the defendant acted consistently with his assumed identity.
25
In 1980, the former Fifth Circuit held that an indictment is sufficient if it

"alleges any overt act consistent with the assumed character." Cohen, 631 F.2d
at 1224. Because this standard correctly states the liberal position taken by the
Supreme Court in Lepowitch and Lamar, we uphold it as the standard for this
court. An indictment under 18 U.S.C. 912 is sufficient if it contains general
allegations of impersonating and acting as a federal officer; an indictment need
not allege additional acts beyond the general act of impersonation.
IV. The Indictment

26
Having adopted the Cohen standard, we now apply it to the case at hand. The
Gayle/Hester indictment states that:
27
[defendants]
did knowingly, willfully and falsely assume and pretend to be officers
and employees of the Federal Bureau of Investigation (FBI) acting under the
authority of the United States, and acted as such in that they held themselves out to
be FBI agents to [Jones and Kirkland], in violation of Title 18, United States Code,
Section 912.
28
(emphasis added). In this case, as well as in Lamar, the indictment does not
allege any additional overt acts beyond the act of impersonating a federal
officer. Under Lamar and Lepowitch, however, these "general" allegations
fulfill the "act as such" requirement of the statute.
29
In addition, the indictment in question closely echoes the language of section

912. The statute provides that a violation occurs if a defendant "pretends to be
an officer ... and acts as such." Using similar wording, the Gayle/Hester
indictment states that defendants "did ... willfully ... pretend to be officers ... of
the Federal Bureau of Investigation ... and acted as such in that they held
themselves out to be FBI agents." Under Lepowitch, use of the statutory
language alone allows an indictment to withstand a motion to dismiss.
Lepowitch, 318 U.S. at 704, 63 S.Ct. at 916.
V. Conclusion
30
Because the indictments adequately allege a violation of 18 U.S.C. 912, we

AFFIRM this portion of the district court's order. We REMAND the remaining
issues, raised on direct appeal but not argued before this en banc court, to the
original circuit panel for final resolution.
Judge Dubina did not participate in the consideration or decision of this case
**
Senior U.S. Circuit Judge Morgan has elected to participate in this decision
pursuant to 28 U.S.C. 46(c)
This order vacated the previous panel's opinion
The indictment stated:

[defendants] did knowingly, willfully and falsely assume and pretend to be
officers and employees of the Federal Bureau of Investigation (FBI) acting
under the authority of the United States, and acted as such in that they held
themselves out to be FBI agents to [Jones and Kirkland], in violation of Title
18, United States Code, Section 912.
We follow the custom adopted by other courts addressing this statute of
inserting bracketed numerals to identify the two distinct offenses included in

912. See United States v. Wilkes, 732 F.2d 1154, 1156 n. 2 (3d Cir.), cert.
denied, 469 U.S. 964, 105 S.Ct. 364, 83 L.Ed.2d 299 (1984). Appellants in this
case were indicted under part of the statute, which prohibits falsely
impersonating a federal agent and acting as such
4
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former
Fifth Circuit rendered prior to October 1, 1981
In Lamar, the defendant was accused of impersonating a Congressman. In the

instant case, defendants Gayle and Hester were accused of impersonating F.B.I.
officers

United States v. Derrick Cornelius Gayle, Claude Bertram Hester, 967 F.2d 483, 11th Cir. (1992)

Uploaded by

Copyright:

Available Formats

United States v. Derrick Cornelius Gayle, Claude Bertram Hester, 967 F.2d 483, 11th Cir. (1992)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Derrick Cornelius Gayle, Claude Bertram Hester, 967 F.2d 483, 11th Cir. (1992)

Uploaded by

Copyright:

Available Formats

967 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

L. Scott Johnson, Jr., Montgomery, Ala., for Gayle.

Claude Bertram Hester and Derrick Cornelius Gayle were convicted of

A criminal conviction will not be upheld if the indictment upon which it is

Although the statutory language does not mention an intent to defraud,

In Lepowitch, the district court dismissed an indictment under the former

13cannot be assumed in these circumstances that Congress deleted an element

III. Acts as Such

Defendants also challenge the indictment as insufficient for failing to allege

In Lepowitch, the Supreme Court stated "[t]he most general allegation of

23 defendant] unlawfully, knowingly and feloniously did falsely assume and

In 1980, the former Fifth Circuit held that an indictment is sufficient if it

IV. The Indictment

In addition, the indictment in question closely echoes the language of section

Because the indictments adequately allege a violation of 18 U.S.C. 912, we

This order vacated the previous panel's opinion

The indictment stated:

We follow the custom adopted by other courts addressing this statute of

inserting bracketed numerals to identify the two distinct offenses included in

In Lamar, the defendant was accused of impersonating a Congressman. In the

You might also like