On Appeal form the United States District Court for the Western District of Pennsylvania - Pittsburgh
Aldisert, Higginbotham and Sloviter, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
The defendant-appellant Warren A. Wilkes, also known as Jake Williams, appeals, inter alia, from a judgment of conviction and sentence of 18 months' imprisonment for false personation in violation of title 18, United States Code, section 912. 18 U.S.C. § 912. The defendant asks this court to hold that counts of an indictment are fatally defective where it is charged that a defendant "did falsely pretend and assume to be an officer and employee of the United States," and who "did falsely take upon himself to act as such" (Count 1) and who "in such pretended character did obtain" sums of money (Counts 2-11), in violation of 18 U.S.C. § 912. The defendant claims that these counts are defective because they do not specifically allege an "intent to defraud."*fn1
The question of whether a criminal indictment need expressly allege an "intent to defraud" to make out a section 912 offense has not been considered before by this court. We hold that the indictment need not allege an intent to defraud and thus we align this court with the majority of courts of appeals on this issue. We therefore will affirm the conviction and sentence below.
The evidence presented at trial established that on several occasions, the defendant, Warren A. Wilkes, claimed he was a Social Security Administration employee and collected money from Raymond Bender ("Bender"), a 62-year-old disabled veteran, as alleged overpayments in the disability benefits Bender was receiving from the Social Security Administration. According to the government's evidence, the defendant contacted Bender by telephone on September 7, 1982 and identified himself as Jake Williams, an employee of the Social Security Administration, who was calling on behalf of Warren A. Wilkes. The defendant informed Bender that Bender had received an excess of $160 in disability benefits which he was required to repay in order to remain eligible for future benefits. The defendant indicated that he would collect the "overpayment" the following day.
The evidence further establishes that on September 8, 1982, the defendant arrived at the Bender residence, identified himself as Jake Williams from the Social Security Administration and requested Bender to give him checks totaling $160 payment to Warren A. Wilkes. The defendant repeated this procedure on numerous occasions and demanded repayment of alleged overpayments in amounts ranging from $50 to $125.
Mr. Joseph Bender, Raymond Bender's brother, suspicious of Jake Williams, ultimately filed a complaint with the Federal Bureau of Investigation ("FBI"). FBI agents interviewed Raymond Bender and recorded a December 20, 1982 telephone conversation between the person identifying himself as Jake Williams and Raymond Bender, having obtained Bender's prior consent to do so. During the course of the conversation, the caller told Bender that he had to repay a sum of $50. The following day, the defendant arrived at Mr. Bender's residence, claiming to be Jake Williams. He collected the $50 and was arrested on the scene by FBI agents.
At the conclusion of the government's case, the defendant moved to dismiss the indictment for failure to charge "intent to defraud" in any of the eleven counts. The trial court denied the motion, concluding that intent to defraud need not be specifically alleged. The trial court determined that although the indictment did not specifically allege an intent to defraud, it charged in the exact terminology of the statute that the defendant pretended to be an employee of the United States acting under the authority thereof, that the defendant acted as such and that in such pretended character demanded and indeed obtained money from Raymond Bender in violation of section 912. Therefore, the trial court concluded that it was unnecessary for the indictment to allege an intent to defraud.
The jury returned a verdict of guilty on all counts from which the defendant appeals.
The defendant renews on this appeal his assertion that a specific intent to defraud is a necessary element of the offenses prohibited by section 912. Apparently the basis for this position is found in the fact that the offense of falsely personating an officer or employee of the United States expressly ...