JOHN R. BROWN, Circuit Judge:
In this appeal by Honea from his conviction and sentence of three years plus a fine of $1,000 under an indictment charging a violation of 18 U.S.C.A. § 912,
The indictment was worded:
By a timely pretrial motion to dismiss, F.R.Crim.P. 12(b)(2), Honea urged that the indictment was "fatally defective" because it failed "to allege that the defendant did the acts with intent to defraud either the United States or any person." The motion was denied.
At the trial, the evidence revealed that over a period of about two months, Honea, an adventurous rogue, had, under an assumed name and identity first as a retired Colonel which was later embellished by his claim of being a CIA agent, courted and married a young widow, Mrs. Dunn, who among her other attractions had $4,000 from the sale of the equity in her home and $20,000 from her recently deceased husband's life insurance. Being given to sudden and unexplained sorties about the country which seemed to upset Mrs. Dunn and her married couple friends who took quite an interest in this
The question before the Court really has two parts: (a) is intent to defraud an essential element for an offense under the part  of § 912, and (b) if so, is this indictment fatally defective for failure to include such an allegation.
Our attention is immediately directed to the fact that in its present recodified form § 912 does not in express words require an intent to defraud, and that words to that effect were deleted from the former version of the statute
We know as a general matter that, with few exceptions, the 1948 revision was not intended to effect substantive changes in federal criminal law.
With particular reference to § 912, note 1, supra, the Revisor's Note shows that former § 123 was merged into it, thereby eliminating the separate offense and different punishment for false impersonation of a revenue officer. As appears from a comparison of former § 76 with § 912 (see notes 4 and 1, supra), much unneeded verbiage was commendably excised from the statute. And then the Revisers make the key and cryptic statement that "The words `with the intent to defraud the United States or any
While we may have some doubt that this really renders the fraudulent intent requirement "meaningless," as the Revisers expressed it, their reaction to that effect is an understandable one.
Perhaps of greater concern is what kind of legislative response to Lepowitch, if any, was intended by the deletion of the words "intent to defraud". In view of the general purpose of the revision and the absence of a more definitive statement as to this particular section, the most unlikely meaning to assign is that the Revisers intended to overrule Lepowitch by re-legislation or to modify the substance of the provision. The Revisers' rather terse explanation suggests that their intent was — as is frequently done in codification-revision efforts of this kind — to make the statutory wording conform to authoritative judicial construction, and to carry forward, by a simplified and streamlined wording of the statute, the Lepowitch statement of what facts would make out a violation of the offense involved in that case.
With this construction, it is important to analyze carefully the Lepowitch case. As we have previously noted, § 912 as well as its predecessor contains two separate offenses (as bracketed in note 1, supra),  false impersonation and acting as such, and  false impersonation and demanding or obtaining property. Our case is under , Lepowitch under  as the Supreme Court so carefully pointed out. In Lepowitch the defendants were charged with impersonating FBI officers and with an attempt to elicit information from an individual in such capacity. The trial court sustained a demurrer to the indictment, raising the legal question whether the facts asserted came within the statute, an issue of statutory construction. Although the indictment contained a second count based on part  of § 76 — obtaining a valuable thing — the Government did not ask for review of this aspect of the trial Judge's ruling. 318 U.S. at 703, n. 2, 63 S.Ct. 914.
Since it is the classic posture of courts to hear argument and having heard to answer responsively, we are assisted by noting from the Lawyer's Edition summary of argument the way the Lepowitch appeal was put to the Supreme Court by the lawyers. The defendants' position was that intent to defraud meant intent to deprive another of money or property (a "valuable thing") — thus lumping together parts  and  of the statute. It followed from this that there could be no conviction for obtaining, by deceitful false impersonation, information or papers having no value to the giver. This construction would have effectively knocked out one of the vital interests which the statute seeks to protect, namely, the dignity, prestige and importance of federal office. See United States v. Barnow, 1915, 239 U.S. 74, 78, 36 S.Ct. 19, 60 L.Ed. 155. Thus it was important for the Government to distinguish the two offenses, and to make it clear that the first kind of offense —  acting as a federal officer — could be committed without an intent to wrongfully deprive another of his property.
In reversing the District Court, the Supreme Court agreed with the Government and made it clear that its definitional statement that intent to defraud means intent to change the course of conduct was applicable only to the type  offense.
Viewed in this light, it is obvious that the Supreme Court was not concerned with the quality or intensity of the evil which characterized the false impersonator's intent, but rather with the object upon which that intent was focused, i. e., whether the intent had to be to obtain a thing of value, or whether an intent to change the course of someone's conduct would do. Thus the Supreme Court put no gloss on the fraudulent intent requirement where the prosecution is against one who  "demands or obtains" the property of another.
In § 76 the introductory words "intent to defraud" applied to both offenses  and  (see note 4, supra). In the quest for simplification, the Revisers apparently felt that the statute could be restructured by omitting the words which, indeed, were "meaningless" where the test for  "acts as such" would be acting with intent to change the course of another's conduct. This left the offense  subject to Court interpretation as to the precise nature of the intent required. And as to that, what the Supreme Court hinted, and what was clearly required in the statute at that time, we now hold. An intent to defraud or an intent to wrongfully deprive another of property is an essential element for a prosecution under the part  of § 912.
To hold otherwise would be to attribute to Congress an intent to greatly expand the scope of the statute so as to include and subject to serious penalty (3 years and/or $1,000) a broad range of possible conduct which, while blameworthy, would not ordinarily be regarded as having the major governmental significance of actions violating part . For example, an ex-Marine, FBI man, PX clerk, Revenue Officer, or law clerk desires to cash a check for which there are funds in the bank, but not being known to the cashier, he flashes his expired Government ID card. Literally, he has "falsely assum[ed]" to be a federal "officer or employee", and "in such pretended character" has "obtain[ed] * * * money * * *." Certainly Congress could conclude that this should be a federal crime. But we do not believe that Congress in its preoccupation with offense  intended purposefully to eliminate the fraudulent intent element as to offense  and thereby wreak a change of major significance, both in the moral qualities of the substantive offense and in the punishment. The law frequently has read into a statute this very requirement of fraudulent intent. See Walker v. United States, 5 Cir., 1965, 342 F.2d 22 [Feb. 25, 1965]; White v. Levine, 10 Cir., 1930, 40 F.2d 502, 503. How much more is it justified when it was once formally a part of the statute and its omission occurred in a structural recodification.
As to whether the absence of an allegation that Honea did the acts in question with intent to defraud makes this indictment insufficient, our problem is much easier. This Court has recently stated in Walker v. United States, supra:
See also Russell v. United States, 1962, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240; 4 Barron, Federal Practice and Procedure § 1913 and 1964 Supp. §
This has unusual importance in this case because the evidence on Honea's fraudulent intent — certainly with regard to the specified instance where he obtained $4,000 from his wife — if viewed apart from the subsequent uncharged incident,
And finally we note that the Supreme Court approved form for an indictment under § 912, Form 9, F.R.Cr.P. Appendix of Forms, contains an "intent to defraud" allegation. While not determinative, this indication of what good criminal pleading requires is strong evidence of what the criminal law requires.
Consequently, the indictment is fatally defective, the conviction thereunder must be set aside, and the indictment must be dismissed.
We have italicized the portions which were either deleted or modified in § 912, and have inserted brackets ( and ) to identify the separate offenses. See note 1, supra.
It should be noted that almost every one of Judge Holtzoff's general observations is applicable to § 912. See Reviser's Note, § 912.