USA v. Susan Tomsha-Miguel

Filing

FILED OPINION (SUSAN P. GRABER, WILLIAM A. FLETCHER and RICHARD A. PAEZ) AFFIRMED. Judge: WAF Dissenting, Judge: RAP Authoring. FILED AND ENTERED JUDGMENT. [9228099]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 13-10342
D.C. No.
1:12-cr-00153LJO-SKO-1

SUSAN TOMSHA-MIGUEL,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
May 14, 2014—San Francisco, California
Filed September 4, 2014
Before: Susan P. Graber, William A. Fletcher,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge W. Fletcher

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UNITED STATES V. TOMSHA-MIGUEL
SUMMARY*

Criminal Law
The panel affirmed a conviction for impersonating an
officer or employee of the United States in violation of 18
U.S.C. § 912, in a case in which the defendant, the proprietor
of a tax services business center, in an attempt to assuage the
concerns of a client, prepared a letter responding to her
client’s tax problems using the letterhead of a United States
Representative, signed the letter on behalf of a fictional
congressional aide, and faxed the letter to the client from her
fax machine.
The panel rejected the defendant’s contention that there
was insufficient evidence to support her conviction. The
panel held that a jury could reasonably conclude that the
defendant’s actions (1) constituted an effort to “assume to act
in the pretended character” and amounted to impersonation of
a federal officer or employee, and (2) were “consistent with
the assumed character” of a government official and in
furtherance of the impersonation.
The panel held that the prosecutor’s comments at trial
were not improper and did not meet the plain error standard.
Rejecting the defendant’s contention that § 912 is an
unconstitutional restriction on speech, the panel applied
intermediate, rather than strict, scrutiny because § 912
criminalizes conduct with “an expressive element” as distinct
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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from pure speech. The panel held that because it promotes
the goals of governmental integrity and maintaining the good
repute of governmental service, § 912 survives intermediate
scrutiny. The panel rejected the defendant’s contention that
§ 912 is facially overbroad.
Because the government need not establish an intent to
defraud as a separate element of a § 912 offense, the panel
held that the district court did not err in denying the
defendant’s motion to dismiss the indictment for failure to
allege such intent, nor in preventing her from raising her lack
of intent to defraud as an affirmative defense.
Dissenting, Judge W. Fletcher would hold that the
defendant did not assume or pretend to be a federal employee.

COUNSEL
Heather Williams, Federal Public Defender, and Jeremy S.
Kroger, Assistant Federal Public Defender (argued), Fresno,
California, for Defendant-Appellant.
Edward P. Sullivan, Trial Attorney, United States Department
of Justice (argued), Mythili Raman, Acting Assistant
Attorney General, Jack. L. Smith, Section Chief CounselPublic Integrity Section, Barak Cohen, Trial Attorney, Public
Integrity Section for the United States Department of Justice;
Washington D.C., for Plaintiff-Appellee.

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UNITED STATES V. TOMSHA-MIGUEL
OPINION

PAEZ, Circuit Judge:
Susan Tomsha-Miguel (“Tomsha-Miguel”) is the
proprietor of a small tax services business in Atwater,
California. In early 2011, in an attempt to assuage the
concerns of one of her long-time clients, Tomsha-Miguel
prepared a letter responding to her client’s tax problems using
the formal letterhead of a United States Representative.
Tomsha-Miguel then signed the letter on behalf of a fictional
congressional aide and faxed the letter to the client from her
fax machine. Her misguided actions were ultimately
discovered when the client sought additional information
concerning the letter from the congressman’s office, and she
was subsequently charged, and ultimately convicted, of
impersonating an officer or employee of the United States in
violation of 18 U.S.C. § 912.
In this appeal, Tomsha-Miguel challenges her conviction
on several grounds. She contends 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. Additionally, she argues that
prosecutorial misconduct occurred during trial and that the
statute as written is an unconstitutional restriction on free
speech. Finally, Tomsha-Miguel argues that the district court
erred in denying her motion to dismiss the indictment for
failure to allege intent to defraud and in denying her request
to raise an affirmative defense of a lack of intent to defraud.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

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I.
The evidence at trial established that Tomsha-Miguel
owned a small business in Atwater, California, where she
provided bookkeeping and tax services to local businesses.1
In early 2011, one of Tomsha-Miguel’s clients, Juan Garcia
(“Garcia”) sought her assistance in resolving a tax dispute
with the Internal Revenue Service (“IRS”). In March 2011,
Tomsha-Miguel contacted former Congressman Dennis A.
Cardoza’s office and requested that the Congressman contact
the IRS on behalf of Garcia to resolve the dispute.
Congressman Cardoza’s office offered to assist, but asked
that Garcia complete a privacy release form.
The
Congressman’s office promptly faxed the form, which was
printed below Congressman Cardoza’s official letterhead, to
Tomsha-Miguel.
Tomsha-Miguel did not return the release form. Instead,
she photocopied Congressman Cardoza’s letterhead onto a
letter that she drafted, and signed, under the fictional name of
William G. Darton, “Aide to Congressman Dennis A.
Cardoza.” The letter was addressed as follows:
April 7, 2011
Sundown RV Center, LLC
Juan H. Garcia, Managing Member
c/o Susan R. Tomsha-Miguel, EA
Fax: [phone]

1

We take the evidence in the light most favorable to the government.
See United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc).

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UNITED STATES V. TOMSHA-MIGUEL
Re:

IRS situation

Dear Ms. Tomsha-Miguel,
The letter proceeded to explain that Garcia’s tax dispute was
under investigation by the Philadelphia Campus Director of
the Taxpayer Advocate Services and, although the Director
was in Washington, D.C., upon his return to Philadelphia, it
would be the office’s “number one priority.” Tomsha-Miguel
faxed the fraudulent letter to Garcia.
In April 2011, Garcia contacted Congressman Cardoza’s
office seeking information concerning the letter he had
received. After obtaining a copy of the letter, Congressman
Cardoza’s office informed Garcia that the letter was
fraudulent. They then contacted the Federal Bureau of
Investigation (“FBI”). The FBI interviewed Tomsha-Miguel
about her involvement with the letter. Although she initially
claimed that she had received the letter from Congressman
Cardoza’s office, she later admitted to photocopying the
letterhead and drafting and signing the letter herself.
In May 2012, a grand jury indicted Tomsha-Miguel on
one count of 18 U.S.C. § 912, impersonating an officer or
employee of the United States. Tomsha-Miguel filed a
motion to dismiss the indictment on the grounds that:
(1) § 912 was facially invalid because it violated the First
Amendment, and (2) the indictment failed to allege the
requisite element of intent to defraud. The district court
denied the motion and the case proceeded to trial before a
jury. At trial, Tomsha-Miguel sought leave to raise the
affirmative defense of lack of intent to defraud, but was
denied. After the close of evidence, Tomsha-Miguel moved
for a judgment of acquittal under Federal Rule of Criminal

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Procedure 29. The court denied the motion. The jury
subsequently returned a verdict of guilty, after which the
court sentenced Tomsha-Miguel to one year of probation and
fifty hours of community service. Tomsha-Miguel timely
appealed.
II.
A.
We turn first to Tomsha-Miguel’s argument that the
evidence presented by the government at trial was insufficient
to support her conviction under § 912.2 In considering a
challenge to the sufficiency of the evidence, “we 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.’” Nevils, 598 F.3d at 1161
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
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, shall be fined

2

We review de novo the district court’s denial of the motion for
judgment of acquittal. United States v. Johnson, 444 F.3d 1026, 1029 (9th
Cir. 2006).

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UNITED STATES V. TOMSHA-MIGUEL
under this title or imprisoned not more than
three years, or both.

The statute thus sets forth 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.” 18 U.S.C. § 912; see
also United States v. Mitman, 459 F.2d 451, 453 (9th Cir.
1972); Ninth Circuit Model Jury Instructions 8.50. TomshaMiguel was convicted of the first crime, which has two
elements: the impersonation of an officer or employee and
acting “as such.” Tomsha-Miguel argues that the government
wholly failed to prove either of these elements. She first
contends that her conduct does not satisfy the first element
because the forged letter was prepared “in care of” TomshaMiguel and “a person cannot pretend to herself that she is a
federal employee.”
Impersonation occurs when any person “assume[s] to act
in the pretended character” of a government official. United
States v. Lepowitch, 318 U.S. 702, 704 (1943) (internal
quotation marks omitted). “The most general allegation of
impersonation of a government official” is sufficient under
§ 912. Id. Here, Tomsha-Miguel crafted a fraudulent letter
when she prepared it 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 substance of the letter also related steps that the
Congressman’s office had purportedly taken on behalf of
Tomsha-Miguel’s client. In light of these facts, a jury could
reasonably conclude that these actions constituted an effort to

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“assume to act in the pretended character” and amounted to
impersonation of a federal officer or employee.
B.
Tomsha-Miguel also argues that, even if the jury could
find that her actions met the impersonation 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 statute.
According to Tomsha-Miguel, after
fabricating the letter from William G. Darton, she took no
further action on behalf of the fictional aide. This is so, she
argues, because although Garcia was the addressee, the letter
was addressed to herself (“Dear Ms. Tomsha-Miguel”) and
was sent to Garcia in care of (“c/o”) herself. Further, after
preparing the letter, she faxed the letter to Garcia as if she
were sharing with her client a letter that she had received
from the Congressman’s office. Tomsha-Miguel contends
that these facts are insufficient to satisfy the “acting as such”
element of § 912.
We have not previously addressed the precise issue
presented by this case. Our sister circuits, however, 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).
Although a defendant must engage in actions that go beyond
“mere bravado,” United States v. Robbins, 613 F.2d 688, 692
(8th Cir. 1979), it is sufficient to show that the defendant
“falsely assumed and pretended” and committed an act in
keeping with that assumed character, Cohen, 631 F.2d at
1124; see also United States v. Gayle, 967 F.2d 483, 487
(11th Cir. 1992) (en banc) (adopting the Cohen standard).
Thus, in Cohen, the Fifth Circuit held that an indictment

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alleging that Cohen impersonated a deputy attorney general,
and acted as such when he signed into a federal penitentiary
as the impersonated official, was sufficient to allege a
violation of § 912. Cohen, 631 F.2d at 1224. Similarly, in
Gayle, the Eleventh Circuit held that it was sufficient to
show, under § 912, that Gayle and his codefendant pretended
to be officers of the FBI and “acted as such in that they held
themselves out to be FBI agents.” Gayle, 967 F.2d at 488.
Here, Tomsha-Miguel falsely assumed the role of a
fictional congressional aide—William G. Darton—when she
prepared a fraudulent letter and then signed it in his name.
She then faxed the letter to her client, Garcia, in order to
effectuate the impersonation and convince Garcia that the
Congressman’s office was seeking to resolve his tax dispute
with the IRS. In light of these facts, a reasonable jury could
conclude that Tomsha-Miguel’s actions were “consistent
with the assumed character” of a government official, and in
furtherance of the impersonation, when she transmitted the
fraudulent letter to Garcia. See Cohen, 631 F.2d at 1224.
Accordingly, the district court did not err in denying TomshaMiguel’s motion for judgment of acquittal. See Nevils,
598 F.3d at 1161; see also United States v. Nyemaster, 116
F.3d 827, 828 (9th Cir. 1997) (explaining that upon review of
a judgment of acquittal we will “affirm if any rational
factfinder could find the essential elements of the crime
beyond a reasonable doubt”).
III.
Tomsha-Miguel next argues that her conviction should be
vacated because the government committed misconduct when
the prosecutor improperly focused the jury’s attention on the
social ramifications of Tomsha-Miguel’s actions and

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encouraged jurors to disregard defense counsel’s arguments.
Tomsha-Miguel refers to three specific instances of allegedly
improper comments by the prosecutor. First, during his
opening statement, the prosecutor stated,“imagine what
happens if people have to doubt who those letters or phone
calls come from. You have to worry if the letters or phone
calls come from an imposter.” Second, during closing
argument the prosecutor cautioned, “when people can’t trust
and rely on communications from government, whether we’re
talking about police officers or federal judges or courthouses
or aides to Congressmen . . . then people stop paying attention
to them and then government can’t do the job that it’s
supposed to do.” Third, during his rebuttal, the prosecutor
reminded jurors, “I warned you I don’t know what the
defense lawyer is going to say when he gets his chance to talk
to you, but he might try to distract you . . . . Well, he’s trying
to distract you. He’s trying to confuse you.”
Because Tomsha-Miguel did not object to the
government’s comments at trial, we review these claims for
plain error. United States v. Sanchez, 659 F.3d 1252, 1256
(9th Cir. 2011). Plain error review requires that
(1) “there must be an error defect . . . that has
not been . . . affirmatively waived[] by the
appellant”; (2) “the legal error must be clear
or obvious, rather than subject to reasonable
dispute”; (3) “the error must have affected the
appellant’s substantial rights”; and (4) “if the
above three prongs are satisfied, the court of
appeals has the discretion to remedy the error
. . . if the error seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings.”

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United States v. Mageno, No. 12-10474, 2014 WL 3893792,
at * 5 (9th Cir. Aug. 11, 2014) (alterations in original)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
We have recognized that a prosecutor “may not urge
jurors to convict a criminal defendant in order to protect
community values, preserve civil order, or deter future
lawbreaking.” United States v. Nobari, 574 F.3d 1065, 1076
(9th Cir. 2009) (internal quotation marks omitted). Likewise,
a prosecutor may not “distort” the trial process by leading the
jury to believe that defense counsel is dishonest. United
States v. Rodrigues, 159 F.3d 439, 457 (9th Cir. 1998). Thus,
in Sanchez, we held that it was improper for a prosecutor to
caution jurors that their acceptance of a duress defense would
“send a memo” to drug traffickers that threats of violence
were acceptable. 659 F.3d at 1256. Similarly, in United
States v. Matthews, we held that a prosecutor’s comment that
the defense attorney was like an “octopus squirting ink,”
crossed the line of professionalism, although it was not plain
error. 240 F.3d 806, 819 (9th Cir. 2001), adopted in relevant
part, 278 F.3d 980 (9th Cir. 2002) (en banc). Here, however,
the prosecutor’s comments were well “within normal bounds
of advocacy” and did not prejudice Tomsha-Miguel nor
render her trial fundamentally unfair. United States v. Del
Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir. 2012).
Accordingly, the prosecutor’s comments were not improper
and certainly do not meet the plain error standard. See
Sanchez, 659 F.3d at 1256.
IV.
Tomsha-Miguel also raises a constitutional challenge to
§ 912, arguing that the district court should have granted her
motion to dismiss the indictment because the statute is an

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unconstitutional content-based restriction on speech. We
review de novo the district court’s denial of a motion to
dismiss the indictment. United States v. Caruto, 663 F.3d
394, 397 (9th Cir. 2011).
Tomsha-Miguel contends that § 912 does not survive
strict scrutiny because it does not serve a compelling
government interest, is not narrowly tailored, and is facially
overbroad. We disagree. Although the constitutionality of
§ 912 is a matter of first impression for this court, the
Supreme Court’s dictum in United States v. Alvarez, 132 S.
Ct. 2537 (2012) (plurality opinion), provides guidance. In
Alvarez, the Supreme Court addressed the constitutionality of
the Stolen Valor Act under the First Amendment and held
that the statute was an invalid content-based regulation of
speech. Id. at 2543. However, in so concluding, the plurality
opinion noted that statutes that prohibit false speech in order
to “protect the integrity of Government processes” and
“maintain the general good repute and dignity of government
service itself,” including § 912, were permissible restrictions
on free speech. Id. at 2546 (internal quotation marks and
ellipses omitted). Likewise, Justice Breyer’s concurring
opinion and Justice Alito’s dissent also noted that § 912 was
a constitutional restriction on free speech. Id. at 2554
(Breyer, J. concurring); id. at 2562 (Alito, J., dissenting). We
accord “great weight” to the statements in Alvarez that § 912
is a permissible restriction on free speech. See Coeur
D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 683 (9th
Cir. 2004). Nonetheless, we recognize that § 912 was not at
issue in Alvarez, so we undertake our own analysis of
whether § 912 is an impermissible restriction under the First
Amendment.

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Because § 912 criminalizes conduct with “an expressive
element,” as distinct from pure speech, we apply intermediate
scrutiny to determine the constitutionality of the statute. See
United States v. Perelman, 695 F.3d 866, 871–72 (9th Cir.
2012) (applying intermediate scrutiny to 18 U.S.C. § 704(a),
which prohibited the wearing of false military medals, an
action this court also deemed to be expressive conduct).
Under intermediate scrutiny, a government regulation “is
sufficiently justified” if it “is within the constitutional power
of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that
interest.” United States v. O’Brien, 391 U.S. 367, 377
(1968).
As Alvarez made clear, the government has the
constitutional power to prohibit the impersonation of federal
officials and employees, and that prohibition serves the
substantial government interests of “protect[ing] the integrity
of Government processes,” and “maintaining the general
good repute and dignity of . . . government . . . service itself.”
132 S. Ct. at 2546 (internal quotation marks and citations
omitted).
These interests are also unrelated to the
suppression of free expression, because § 912 “does not
prevent the expression of any particular message or
viewpoint.” See Perelman, 695 F.3d at 872. Rather, the
government’s interests are concerned solely with the act of
impersonation itself, not the content of the impersonation.
As to the final prong of the O’Brien test, the Supreme
Court has explained that “an incidental burden on speech is
no greater than is essential, and therefore is permissible under

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O’Brien, so long as the neutral regulation promotes a
substantial government interest that would be achieved less
effectively absent the regulation.” Rumsfeld v. Forum for
Academic & Inst’l Rights, Inc., 547 U.S. 47, 67 (2006)
(internal quotation marks omitted). In Perelman, we held that
that test was met where the statute “in at least some measure”
promotes the underlying governmental interests, even if it “is
not the most effective mechanism.” 695 F.3d at 873. Here,
§ 912 promotes the goals of governmental integrity and
maintaining the good repute of governmental service by
prohibiting the false impersonation of government officials.
Accordingly, § 912 survives intermediate scrutiny.3
Tomsha-Miguel also argues that § 912 is facially
overbroad because it results in the prohibition of a wide
spectrum of innocent speech, including political parodies,
theatrical performances, and student mock government
exercises. A statute is overbroad “if a substantial number of
its applications are unconstitutional, judged in relation to a
statute’s plainly legitimate sweep.” United States v. Stevens,
130 S. Ct. 1577, 1587 (2010) (internal quotation marks
omitted). “The overbreadth claimant bears the burden of
demonstrating, from the text of the law and from actual fact,
that substantial overbreadth exists.” Virginia v. Hicks,
539 U.S. 113, 122 (2003) (internal quotation marks and
brackets omitted).
3

Tomsha-Miguel argues that § 912 is a content-based restriction on
speech that should be subject to strict scrutiny. For reasons explained in
the text, intermediate scrutiny is the appropriate standard of review.
However, even were we to apply strict scrutiny, § 912 is still a
constitutional restriction on speech as it is justified by a compelling
governmental interest in the integrity of government processes and it is
narrowly tailored to address only intentionally deceptive conduct. See
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011).

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We do not interpret § 912 to reach as broadly as TomshaMiguel contends. Because § 912’s statutory elements
incorporate an intent to deceive, the statute reaches only those
acts that are intentionally deceptive. See Lepowitch, 318 U.S.
at 704 (holding that the elements of § 912 implicitly
incorporate an intent to defraud). We held similarly in
Perelman, when we noted that § 912 was an example of a
statute encompassing “a narrow range of conduct” limited to
“intentionally deceptive acts.” 695 F.3d at 871; see infra
Section V. Accordingly, § 912 does not reach the “innocent”
speech that Tomsha-Miguel identifies. Tomsha-Miguel
concedes that “[i]f the statute contains this [intentionally
deceptive] restriction, then intermediate scrutiny should be
applied, the statute is not overbroad, and its applications
comport with the requirements of the First Amendment.” We
hold that § 912 is a constitutionally permissible restriction on
free speech.
V.
Finally, Tomsha-Miguel argues that the district court
erred in denying her motion to dismiss the indictment for
failure to allege intent to defraud, and that the district court
should have allowed her to raise the issue as an affirmative
defense at trial. We review de novo a challenge to the legal
sufficiency of an indictment. Caruto, 663 F.3d at 397; United
States v. Gurolla, 333 F.3d 944, 951 n.8 (9th Cir. 2003).
Prior to 1948, the offense of falsely impersonating a
federal official required a showing of an intent to defraud, by
providing that, “[w]hoever with intent to defraud either the
United States or any person engaged in an act of
impersonation, shall be guilty of a felony.” 18 U.S.C. § 76
(1940). In 1948, however, the statute was recodified and

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amended to its present form, which does not include any
reference to an “intent to defraud.” 18 U.S.C. § 912. The
Reviser’s Notes to the amendment explain that the words
“with intent to defraud” were omitted as meaningless in light
of Lepowitch. 18 U.S.C. § 912 Reviser’s Note (citing
Lepowitch, 318 U.S. at 704). In Lepowitch, the Supreme
Court considered an indictment under § 912 that did not
allege acting with intent to defraud. 318 U.S. at 703. The
Court held that the indictment was sufficient, concluding that
“the words ‘intent to defraud’ in the context of this statute, do
not require more than that the defendants have, by artifice and
deceit, sought to cause the deceived person to follow some
course he would not have pursued but for the deceitful
conduct.” Id. at 704. Accordingly, we have held that an
indictment is no longer required to allege an intent to defraud,
as reiteration of the elements of § 912 is sufficient to fully
inform the defendant of the crime of which he was charged.
United States v. Mitman, 459 F.2d 451, 453 (9th Cir. 1972).
We have also held that a defendant is not entitled to raise an
affirmative defense of lack of intent to defraud under § 912
because “an intent to defraud is not a separate element of
18 U.S.C. § 912” and, thus, the affirmative defense is
“irrelevant because it does not negate any of the elements of
[§] 912.” United States v. Bushrod, 763 F.2d 1051, 1053 (9th
Cir. 1985) (per curiam).
Tomsha-Miguel’s argument that this approach is
inconsistent with the case law of our sister circuits is
unavailing; the majority of our sister circuits have also held
that the government need not establish an intent to defraud as
a separate element of a § 912 offense. See United States v.
Wilkes, 732 F.2d 1154 (3d Cir. 1984); United States v. Cord,
654 F.2d 490 (7th Cir. 1981); United States v. Rosser,
528 F.2d 652 (D.C. Cir. 1976); United States v. Rose,

Case: 13-10342

18

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ID: 9228099

DktEntry: 28-1

UNITED STATES V. TOMSHA-MIGUEL

500 F.2d 12 (2d Cir. 1974); United States v. Guthrie, 387
F.2d 569 (4th Cir. 1967). We therefore hold that the district
court did not err in denying the motion to dismiss the
indictment, nor in preventing Tomsha-Miguel from raising
her lack of intent to defraud as an affirmative defense.
AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
Ms. Tomsha-Miguel was convicted of violating 18 U.S.C.
§ 912, which provides, in relevant part:
Whoever falsely assumes or pretends to be an
officer or employee acting under the authority
of the United States . . . and acts as such . . .
shall be fined . . . or imprisoned[.]
The central question in this case is whether Ms. TomshaMiguel falsely assumed or pretended to be a federal
employee. I would hold that Ms. Tomsha-Miguel did not do
so.
It is undisputed that Ms. Tomsha-Miguel wrote a letter to
herself using the letterhead of Congressman Cardoza and
signed the letter using the name William Darton, a
nonexistent aide to Congressman Cardoza. She then sent the
letter to her client, pretending that she had contacted
Congressman Cardoza’s office and that William Darton had
written the letter to her.

Page: 18 of 19

Case: 13-10342

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ID: 9228099

DktEntry: 28-1

UNITED STATES V. TOMSHA-MIGUEL

Page: 19 of 19

19

Ms. Tomsha-Miguel performed two acts, neither of which
qualifies as assuming or pretending to be William Darton.
First, she wrote a letter to herself using the name of the
fictitious aide Darton. In so doing, she did not assume or
pretend to herself, or to anyone else, that she was Darton.
Second, she sent the letter to her client, pretending that she
had contacted Darton and that Darton had written the letter to
her. In so doing, she did not assume or pretend to herself, or
to her client, that she was Darton.