BARNES, Circuit Judge:
Appellant was charged in a five-count indictment with the several violations of 18 U.S.C. § 912, impersonating an officer or employee of the United States. A jury was waived, and appellant was convicted on four of five counts, i. e., Counts I, II, IV and V. 18 U.S.C. § 912 makes criminal (1) the conduct of one who falsely pretends to be an officer or employee of the United States or any agency, department officer thereof, and acts as such or (2) in such pretended character, demands or obtains any thing of value.
Appellant primarily urges that no intent to defraud was charged against him. He parenthetically urges four alleged errors, but admits the record on appeal does not disclose them, and hence he cannot argue them. [Appellant's Brief, p. 17]
It is true no specific intent to defraud was alleged in the indictment in Counts I or II, but this has been held unnecessary as to the crime charged in the first part of § 912.
We agree with appellant that the statute (§ 912) states two separate and distinct offenses, as is stated in United States v. Guthrie, 387 F.2d 569, 570 (4th Cir.1967) and Honea v. United States, 344 F.2d 798, 800 (5th Cir.1965). But this exclusion of the specific intent charge, held error in Honea by Judge Brown if omitted, has since been considered by Judge Sobeloff in Guthrie, and held not essential and not error to omit. (387 F.2d p. 571) This follows the Fourth Circuit's previous holding in United States v. Leggett, 312 F.2d 566, 569 (1962).
Guthrie dealt only with part 1 of § 912, Honea only with part 2 of § 912. Judge Sobeloff went further however, in his analysis of the problem. He stated 387 F.2d at p. 572:
To quote from Honea:
Guthrie quoted from United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953) as follows:
We hold with Guthrie, that:
Cf. also: Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, (1932) and Kane v. United States, 120 F.2d 990 (8th Cir.1941) as to the variance allowable in considering the sufficiency of the indictment prior to trial, as compared to consideration after trial, and on appeal. Hagner, supra, 285 U.S. at p. 433, 52 S.Ct. 417; Kane, supra, 120 F.2d at p. 992.
Formal defects, not prejudicial, are to be disregarded by courts in modern practice. Hopper v. United States, 142 F.2d 181, 185 (9th Cir.1943).
A careful reading of the indictments convinces us no prejudicial error appears in the allegations of Counts I and II of the superseding indictment.
The trial judge had no problem as to the sufficiency of the evidence to support conviction, on four of the five counts. He was of the opinion that "the evidence was overwhelming" that defendant had "defrauded a number of businessmen out of substantial amounts of property by falsely pretending to be a United States government officer" [R. T., p. 329], and the court added: "You did it wilfully and knowingly." [R.T., p. 329.]