Ekberg v. United States

WOODBURY, Circuit Judge.

I concur in the result. I agree, although not without hesitation, that the government’s motion to dismiss the appeal as Untimely ought to be denied. And I agree with my associates’ analysis of § 76 as describing three, not merely two, offenses. My difficulties are with respect to the proposition that the language of count 1 is insufficient to charge any offense.

In the first place I think it is too late at this stage of the proceedings in the case to consider the question of the sufficiency of the wording of any part of the indictment, particularly count 1. In the second place I think it very doubtful indeed that the phraseology of count 1 is not adequate to charge the offense defined in the first clause of the statute.

In United States v. Barnow, 239 U.S. 74, 80 , 36 S.Ct. 19, 22 , 60 L.Ed. 155 , the Supreme Court said: “It is the aim of the section not merely to protect innocent persons from actual loss through reliance upon false assumptions of Federal authority, but to maintain the general good repute and dignity of the service itself.” The second clause of this sentence was quoted by the Supreme Court with approval in United States v. Lepowitch, 318 U.S. 702, 704 , 63 S.Ct. 914, 916 , 87 L.Ed. 1091 , decided in 1943, and in the latter case the court also said, again quoting the Barnow case, “Government officials are impersonated by any persons who 'assume to act in the pretended' character.’ ” And then the court in the Lepowitch case goes on immediately tó say “The most general allegation of impersonation of a government official, therefore, sufficiently charges this element of .the offense.” In view of this language and of the allegation in the “in that” clause of count 1 that the accused in his pretended character called Diaz on the telephone, I would hesitate a long time to say that the count as drawn does not sufficiently charge any offense under the statute. It seems to me that an “act in keeping with the pretense” and not merely a “false pretense with intent to defraud”, to again quote the *389 Barnow case, is adequately alleged in the count.

But I see no occasion in the case at bar to consider the sufficiency of the language of the indictment' at all. In my view the issue presented is adequately disposed of by pointing out that “If all the defendant has done by way of acting as such pretended official is to demand or obtain a valuable thing, it cannot be supposed that Congress intended to authorize the imposition of separate sentences, to run consecutively, upon a count charging the offense described in the first clause of § 76 and another count charging an offense under the second clause”, and then proceeding to say: “Therefore, the court should not have imposed a separate sentence on count 1, and the time which appellant spent in the penitentiary under that sentence becomes legally referable to the concurrent sentences imposed on counts 2 and 3,” and: “Since the sentence on the first count, which he has fully served, was for the same length of imprisonment as the concurrent sentences imposed on the second and third counts, the appellant is now entitled to release from prison.”