United States v. William Jerome Harmon, 496 F.2d 20 (2d Cir. 1974). · Go Syfert
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United States v. William Jerome Harmon, 496 F.2d 20 (2d Cir. 1974). Cases Citing This Book View Copy Cite
15 citation events (2 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Zerbe (ctd, 2009-01-06)
Statutes interpreted (leading-cases list)
#11 18 U.S.C. § 702 cited 1× in this case · 63 total citations of statute
Top citers, strongest first. 9 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Zerbe
D. Conn. · 2009 · confidence medium
United States v. Harmon, 496 F.2d 20, 21 (2d Cir.1974).
discussed Cited as authority (rule) Florida East Coast Railway Company, Plaintiff-Appellee-Cross-Appellant v. United States of America, Third Party Plaintiffs-Cross-Appellees v. Central and Southern Florida Flood Control District, and Troup Bros., Inc., Third Party
3rd Cir. · 1975 · signal: cf. · confidence medium
Cf. Graci v. United States, 496 F.2d 20, 25-27 (5th Cir. 1971) 8 Parks v. United States, 370 F.2d 92 (2d Cir. 1966); Stover v. United States, 332 F.2d 204 (9th Cir.), cert. denied 379 U.S. 922 , 85 S.Ct. 276 , 13 L.Ed.2d 335 (1964); National Mfg.
cited Cited as authority (rule) Florida East Coast Railway Co. v. United States
5th Cir. · 1975 · signal: cf. · confidence medium
Cf. Graci v. United States, 496 F.2d 20, 25-27 (5th Cir. 1971). .
cited Cited "see" United States v. Brett C. Kimberlin
7th Cir. · 1985 · signal: see · confidence high
See United States v. Harmon, 496 F.2d 20 , 21 n. 3 (2d Cir.1974) (per curiam) (noting that the pretense itself cannot serve as an overt act under the section).
cited Cited "see" United States v. Alan Parker
4th Cir. · 1983 · signal: see · confidence high
See United States v. Harmon, 496 F.2d 20 (2d Cir.1974); Ekberg v. United States, 167 F.2d 380 (1st Cir.1948); United States v. Larson, 125 F.Supp. 360 (D.Alaska 1954).
discussed Cited "see, e.g." United States v. Robert J. Rippee
7th Cir. · 1992 · signal: see, e.g. · confidence low
See, e.g., United States v. Harmon, 496 F.2d 20 (2d Cir.1974) (an indictment charging false impersonation without alleging that the defendant acted in conformity with his pretended character or obtained anything of value held insufficient).
cited Cited "see, e.g." United States v. Kourosh Bakhtiari
2d Cir. · 1990 · signal: see, e.g. · confidence medium
See, e.g., United States v. Harmon, 496 F.2d 20, 21 (2d Cir.1974).
discussed Cited "see, e.g." United States v. Yum
cma · 1980 · signal: see, e.g. · confidence low
See, e.g., United States v. Harmon, 2 Cir., 496 F.2d 20 (1974); Ekberg v. United States, 1 Cir., 167 F.2d 380 (1948); United States v. Larson, 125 F.Supp. 360 , 15 Alaska 256 (1954); cf. United States v. Harth, W.D.Okla., 280 F.Supp. 425 (1968).
discussed Cited "see, e.g." United States v. David C. Rosser
D.C. Cir. · 1976 · signal: see, e.g. · confidence low
See, e. g., United States v. Harmon, 2 Cir., 496 F.2d 20 (1974); Ekberg v. United States, 1 Cir., 167 F.2d 380 (1948); United States v. Larson, 125 F.Supp. 360 , 15 *657 Alaska 256 (1954); cf. United States v. Harth, W.D.Okla., 280 F.Supp. 425 (1968).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellant,
v.
William Jerome HARMON, Appellee
952, Docket 74-1081.
Court of Appeals for the Second Circuit.
Apr 24, 1974.
496 F.2d 20
Eugene Welch, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., for the Northern District of New York, of counsel), for appellant., David M. Garber, Syracuse, N. Y. (Bond, Schoeneck & King, Syracuse, N. Y., of counsel), for appellee.
Kaufman, Clark, Smith.
Cited by 13 opinions  |  Published
PER CURIAM:

In this appeal we are called upon to determine whether an indictment charging false personation of an officer or employee of the United States (18 U.S. C. § 912) is fatally defective if it fails to allege that the accused performed an “act” under his falsely assumed identity. Judge Port dismissed four counts of the seven count indictment [1] which charged Harmon with falsely pretending to be an Air Force Sergeant and recently returned Vietnam prisoner of war. The government appeals that order of dismissal (18 U.S.C. § 3731).

The plain language of § 912 is dispositive of this appeal. That section provides, in relevant part:

“Whoever falsely assumes or pretends to be an officer or employee acting under authority of the United States or any department, agency or officer thereof, and acts as such shall be fined not more than $1,000 or imprisoned not more than three years, or both.”

It is clear from the statute that “acting” is a conjunctive element of the offense and must be joined with the false assumption of identity in order to allege a violation.

Count I of the indictment, [2] which is virtually identical to the other counts[*21] dismissed by Judge Port, alleges merely that on or about March 5, 1973, Harmon pretended to be an Air Force Sergeant recently returned from a Vietnamese prisoner of war camp. It does not allege that he performed any acts under the guise of this assumed identity. The Government contends that the failure to specify an independent act does not render the indictment deficient because the pretense itself may serve as the required act. This argument is untenable. If mere pretense sufficed to allege a violation of § 912, then the language of the statute, which plainly requires not only that the accused falsely personate an officer but also that he “act as such,” would be mere surplusage. [3] Penal statutes, in particular, will not permit such a strained construction.

Since we believe that counts I, II, IV and VI are each defective for failure to allege the requisite “act,” we need not enter the fray between the Fourth and Ninth Circuits, on the one hand, and the Fifth Circuit, on the other, concerning the question whether intent to defraud is an essential element of § 912. Compare, United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967), cert. denied, 392 U. S. 927, 88 S.Ct. 2284, 20 L.Ed.2d 1386 (1968) and United States v. Mitman, 459 F.2d 451 (9th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 111 (1972), with United States v. Randolph, 460 F.2d 367 (5th Cir. 1972) and Honea v. United States, 344 F.2d 798 (5th Cir. 1965).

Affirmed.

1

. Judge Port dismissed counts I, II, IV and VI. The remaining counts (III, V and VII) allege that Harmon violated 18 U.S.C. § 702, which proscribes the unauthorized wearing of the uniform of any of the armed forces of the United States. These counts were not dismissed.

2

. Count I alleged: “On or about the 5th day of March, 1973, in the Northern District of New York, William Jerome Harmon, wilfully and knowingly did falsely pretend and assume to be an officer and employee of the[*21] United States acting under the authority thereof, that is, a Sergeant in the United States Air Force and did falsely take upon himself to act as such in that he falsely stated to William Pennella that he was a Sergeant in the United States Air Force currently on leave, and in such pretended and assumed capacity Wiliam Jerome Harmon, at the time and place aforesaid did falsely pretend to William Pennella to be a recently returned Vietnam Prisoner of War”.

3

. Indeed, the Government’s contention that pretense itself can serve as the required act would result in no functional distinction between the misdemeanor described in 18 U.S. O. § 702 and the felony described in § 912 where the defendant wore a uniform.