Impersonating U.S. Employee – An offense under 18 USC 912 requires evidence of an “overt act” while impersonating a U.S. employee, defined as an act that causes the victim to take an action they would not have otherwise taken.
Jeremy Wade was convicted of violating 18 U.S.C. 912, which prohibits impersonating a U.S. employee and acting in conformity with that pretense. On appeal, Wade argued that his motive, which was to impersonate a DEA agent to get an old female acquaintance to go out with him, negated a criminal intent, such as an intent to defraud.
Wade had impersonated a DEA agent on two occasions, traveling to his old crush’s home to ask her about an alleged suspect and then later leaving a card in her mailbox asserting he was a special agent. The card also suggest that she “let this guy take me out.” She reported him and Wade was charged with a federal offense.
The Government filed a motion in limine prior to trial seeking to preclude Wade from arguing that he did not have criminal state of mind, reasoning that 912 offenses were “strict liability” offenses. The district court agreed. On appeal, the Court affirmed his conviction, holding that an intent to defraud is not an element of impersonating a U.S. employee. All that is required is impersonating a federal employee and committing an “overt act.”
The Court discussed the legislative history and intervening Supreme Court decisions, especially the fact that Congress dropped the phrase “intent to defraud” from the statute in 1984. The Court cautioned that there was a difference “between the proper scope of 912 on the one hand and criminalizing mere boastful speech on the other,” and that the law required an “overt act,” defined as an act that causes the victim to take an action they would not have otherwise taken. The Court conceded that the district court should have more thoroughly instructed the jury on the definition of an overt act, but concluded it was harmless error. Here, the victim opened her door to Wade and answered his questions based on believing he was a DEA agent.
Appeal from the Eastern District of Wisconsin
Opinion by Manion, joined by Hamilton and Barrett
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