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United States v. Napoleone

decided: August 2, 1965.

UNITED STATES OF AMERICA
v.
JAMES NAPOLEONE, APPELLANT



Kalodner, Hastie and Freedman, Circuit Judges.

Author: Kalodner

KALODNER, Circuit Judge.

Following a jury trial, the defendant-appellant was found guilty of falsely pretending to be an investigator of the Veterans Administration, in contravention of Section 912, 18 U.S.C.A.*fn1

He prosecutes this appeal on these grounds: (1) the evidence was insufficient to support the jury's verdict, and (2) the court below erred in refusing to propound certain requested questions to the veniremen on the voir dire examination.

The government's testimony may be summarized as follows:

The defendant was an investigator employed by the Retail Credit Company at its Pittsburgh, Pennsylvania branch; in March, 1964 his employer was commissioned to investigate an accident in which a railroad employee, one John G. Fullerton, was injured, and he was assigned to the task; he called at the Fullerton home on March 25th and told Mrs. Fullerton that he was an "investigator from the Veterans Administration"; Fullerton was not at home at the time; on March 27th he called again when Fullerton was at home; he told Fullerton "I am the man from the Veterans Administration -- there is some mix-up in the records down at the Veterans Administration -- we want to get them straightened out."; he questioned Fullerton concerning his service record; Fullerton's suspicions were aroused and he asked the defendant to show his credentials; the defendant then produced a card identifying him as an employee of the Retail Credit Association; the Veterans Administration had not employed the defendant or his employer to investigate Fullerton; and, the defendant later admitted to an F.B.I. agent that when he spoke to the Fullertons "he had intended the impression to exist that he was conducting an investigation for the Veterans Administration."

The defendant testified that he was instructed by his employer to make a "pretext" investigation, viz., to represent himself as an employee of Retail Credit Company but "to let Mr. Fullerton or Mrs. Fullerton believe that the report could be going to the Veterans Administration", and that he was making an investigation "in behalf of the Veterans Administration"; that he carried out his instructions to the letter and did not say that he was "an employee of the Veterans Administration" or "an investigator from the Veterans Administration". Other defense witnesses testified that the Retail Credit Company had been commissioned on numerous prior occasions to conduct investigations on behalf of the Veterans Administration and its investigators had been instructed not to represent themselves as employees of the Administration; that "a pretext interview is one which we try to conceal the identity of the purpose of our investigation or for whom we are conducting our investigation, or sometimes both".

What has been said bears upon the issues presented on this appeal, viz., alleged insufficiency of the evidence and erroneous denial to put two requested questions to the veniremen on the voir dire.

First, as to the issue of sufficiency of the evidence:

The sum of the defendant's contention on this issue is that the evidence failed to establish, beyond a reasonable doubt, that the defendant had "with criminal intent falsely represented that he was an employee of the Government"; there was no evidence that the defendant had "expressly represented that he was an employee of the Veterans Administration"; and the evidence "at most" supported a finding that the defendant "had represented that he was an investigator from the Veterans Administration."

We do not subscribe to the defendant's contention.

The government's testimony that the defendant had told the Fullertons that he was an "investigator from the Veterans Administration", and "I am the man from the Veterans Administration", when he was in fact not an employee of the Administration, or "from" it, was sufficient to support the jury's verdict that he had "falsely" pretended to be "an employee acting under the authority of" the Veterans Administration. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); see also Bolen v. United States, 303 F.2d 870, 874 (9 Cir. 1962).

Coming now to the second issue -- did the court below err in refusing to put two requested questions, or their substance, to the ...


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