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Criminal Impersonations: The Federal Standard Of Proof For Sufficiency


criminal appeals lawyer, test for sufficiency of evidence, criminal impersonation

U.S v. Tomsha-Miguel

2014 WL 4358466

United States Court of Appeals for the Ninth Circuit

Decided on: September 4, 2014

The Sufficiency Standard Requires That The Evidence Be Viewed In light Most Favorable To The Prosecution

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Attorney 

Issue: Whether there was sufficient evidence to convict Defendant under 18 U.S.C.A. § 912 impersonating an officer or employee of the United States where Defendant crafted a fraudulent letter using the letterhead of a U.S. Congressmen and the letter was addressed to herself.

Summary: Defendant was a proprietor of a small tax services business. She prepared a letter responding to her client’s tax problems using the formal letterhead of a United States Representative. She addressed the letter to her self, signed the letter on behalf of a fictional congressional aide, and faxed the letter to the client. Her actions were discovered and she was ultimately charged, and convicted of impersonating an officer or employee of the United States in violation of 18 U.S.C § 912. On Appeal, the Defendant argues that there was insufficient evidence to convict her under § 912 because the Government did not show that she committed an act consistent with the assumed impersonation.

The Court of Appeals for the Ninth Circuit relied on other Circuits’ that generally agreed that § 912 requires only that the Government show any overt act consistent with the assumed character and that it was sufficient to show that Defendant falsely assumed and pretended and committed an act in keeping with that assumed character.

See Also: U.S Sentencing Guidelines: Fleeing From Police May Be A Violent Felony Under The Armed Career Criminal Act

Holding: The Court of Appeals for the Ninth Circuit held that there was sufficient evidence that Defendant pretended to be the Congressman when she addressed the letter to her self using his letterhead to commit the act of impersonation under 18 U.S.C.A. § 912.

In considering a challenge to the sufficiency of the evidence, the court is obliged to construe the evidence in the light most favorable to the Prosecution, and only then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Section § 912 provides: whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or office thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value.

Facts: Defendant Tomsha-Miguel was a proprietor of a small tax services business. Defendant contacted Congressman Cardoza’s officer and requested that the Congressman contact the IRS on behalf of her client to resolve the dispute. Congressman Cardoza offered to assist, but asked that the client complete a privacy release form and faxed it to Defendant.

However, she did not return the release form to her client. Instead, she prepared a letter responding to her client’s tax problems addressed to her using the formal letterhead of a United States Representative. She then signed the letter on behalf of a fictional congressional aide, and faxed the letter to the client from her fax number. Her client contacted Congressman Cardoza’s officer seeking information concerning the letter. Defendant’s actions were discovered and she was ultimately charged, and convicted of impersonating an officer or employee of the United States in violation of 18 U.S.C § 912.

On Appeal, the Defendant argues that there was insufficient evidence to convict her under § 912 because the Government did not show that she committed an act consistent with the assumed impersonation. The Court of Appeals for the Ninth Circuit concluded that her actions constituted an effort to assume to act in the pretended character and amounted to the impersonation of a federal officer of employer.

Legal Analysis: The Court of Appeals for the Ninth Circuit held that in considering a challenge to the sufficiency of the evidence, the Court of Appeals are obliged to construe the evidence in the light most favorable to the Prosecution, and only then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In this case, Defendant argues that even if the jury could find that her actions met the impersonations element under the first part of §912, the Government failed to present sufficient evidence to show that she “acted as such” as further required by the statue. The Court of Appeals for the Ninth Circuit held that they have not previously decided the precise issue presented by this case. However, the Court held that other Circuit Courts have generally agreed that § 912 requires only that the Government show any overt act consistent with the assumed character, United States v. Cohen, 631 F.2d 1223, 1224, 5th Cir.1980.

The Court of Appeals for the Ninth Circuit held that 18 U.S.C.A. § 912 two distinct offenses; the first where the Defendant assumes or pretends to be an officer or employee acting under the authority of the United States and acts as such, and the second where the Defendant in such pretended character demands or obtains any money, paper, document, or thing of value.

In this case, the Defendant was convicted of the first crime, which has two elements: the impersonation of an officer or employee and acting as such. The Defendant contends that the Government failed to provide these elements because the forged letter was prepared in care of her and a person cannot pretend to her self that she is a federal employee. The Court of Appeals held that impersonation occurs when any person assumes to act in the pretended character of a Government official.

 Here, Defendant crafted a fraudulent letter and addressed it to herself on behalf of William G. Darton, the fictional aide to Congressman, Dennis A. Cardoza; signed the letter on behalf of the fictional aide; and copied the official letterhead of Congressman Cardoza’s office into the letter.

The Court of Appeals for the Ninth Circuit held that the most general allegation of impersonation of a governmental official is sufficient and the jury reasonably concluded that her actions constituted an effort to assume to act in the pretended character and amounted to the impersonation of a federal officer of employer. The Court of Appeals affirmed.


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