United States v. Neidlinger , 354 F. App'x 357 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 2, 2009
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-8017
(D. Ct. No. 2:08-CR-00241-CAB-1)
TERRY EARL NEIDLINGER, (D. Wyo)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA and GORSUCH, Circuit Judges, and STAMP, Senior District Judge.**
Defendant-appellant Terry Earl Neidlinger appeals the district court’s judgment
and sentence. The defendant misrepresented to staff of the mayor of Cheyenne,
Wyoming that he was a United States Marshal, then demanded that he see the mayor
immediately. The government charged the defendant with False Impersonation of an
Officer or Employee of the United States, pursuant to 18 U.S.C. § 912. A jury found the
defendant guilty of impersonating a United States Marshal. The district court sentenced
the defendant to fifteen days imprisonment and time served, for a total of 172 days
*
This order and judgment is not binding precedent except under the doctrines of law
of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the
Northern District of West Virginia sitting by designation.
imprisonment, plus one year of supervised release. We have jurisdiction under 28 U.S.C.
§ 1291. For the reasons set forth below, we AFFIRM the judgment and sentencing of the
district court.
I. BACKGROUND
On August 25, 2008, Terry Neidlinger walked into the Cheyenne, Wyoming
mayor’s office determined to meet with the mayor over alleged harassment by the police.
Neidlinger was upset over an ongoing dispute with the city regarding city police officers
and his alleged sexual abuse of his stepdaughter. This visit was not Neidlinger’s first visit
to the mayor’s office. On August 19, 2008, Neidlinger demanded a meeting with the
mayor. The mayor met with Neidlinger for 30 to 45 minutes. The mayor’s staff informed
the defendant that in the future, he needed an appointment to see the mayor. A scheduled
follow up meeting occurred on August 21, 2008 with the mayor and the chief of police.
On August 25, the mayor’s secretary, Virginia Riley, immediately recognized Neidlinger.
She described his demeanor as “very agitated.” He wore a white shirt, blue pants, and a
belt. On this third visit to the mayor’s office, Neidlinger became angry when Riley
refused to show Neidlinger into the mayor’s office. Neidlinger showed Riley a badge,
claimed he was now a United States Marshal, and demanded that he see the mayor
immediately. Riley stated that Neidlinger pointed to his badge and told her that he “was
tired of people pushing him around and that he had a badge now.” Riley believed him for
a moment and thought that the United States Marshals must be desperate for help to have
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hired Neidlinger. Neidlinger yelled and slammed his hands on a newspaper he placed on
Riley’s desk. Riley, growing frustrated, told him to be quiet so she could speak.
At this point, Judi Gore, the mayor’s administrative assistant appeared because of
the commotion. She arrived to find Neidlinger angrily complaining about police officers
who he alleged were treating him unfairly. Gore observed Neidlinger pat his badge and
state, “I’m wearing a badge now.” Gore believed that because of Neidlinger’s behavior,
she and Riley needed additional help. She called a retired policeman and the fire
department.
Neidlinger left the mayor’s office without seeing the mayor. Gore then called the
police department to report that Neidlinger had purported to be a United States Marshal.
She told the police that the Marshals “should know that they have someone working for
them who flies off the handle . . . and they need to know what caliber of officer that
they’ve got.”
Deputy United States Marshal Dennis Conmay conducted an investigation of the
incident. He obtained a search warrant for Neidlinger’s vehicle and home, as well as an
arrest warrant. In Neidlinger’s van, Deputy Marshal Conmay found a “plastic, old-
western type badge” with “Marshal” and “Tombstone” inscribed in it. The badge
recovered from the vehicle is not the badge that Riley and Gore claim to have seen. Riley
described the badge as big, pewter, and oval. Gore observed that the badge was “round,
pewter” – “a star with round knobs on the end of the star.” Gore stated the badge said
“Marshal” on the bottom and the top may have said “U.S.” or “United States.”
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At trial, the defendant testified and admitted that he may have told Deputy Marshal
Conmay that he represented himself to the mayor’s staff as a United States Marshal and
admitted that he wore a badge to the mayor’s office on August 25, 2008. The parties
stipulate that Neidlinger has never been an employee of the United States Marshals
Service and that the United States Marshals Service is an agency or department covered
under 18 U.S.C. § 912.
A grand jury returned an indictment against Neidlinger. Following a trial, a jury
found Neidlinger guilty. The district court sentenced Neidlinger. Neidlinger then filed a
Notice of Appeal.
II. DISCUSSION
Neidlinger, on appeal, contends that he cannot be convicted under 18 U.S.C. § 912because while he did claim to be a United States Marshal, he did not act as a United
States Marshal when he demanded an audience with the mayor. He believes that the
statute was written to prevent people from performing acts traditionally performed by
Marshals on the job and that the statute does not cover the present incident. Second,
Neidlinger challenges the district court’s failure to instruct the jury on the meaning of the
statutory phrase, “acts as such.” As a result of the lack of the instruction, Neidlinger
claims his conviction is based on conflicting definitions of an essential element of the
charge.
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A. The Evidence of the Defendant’s Overt Acts While in the Assumed Role of a
United States Marshal Was Sufficient to Sustain His Conviction
This Court reviews a challenge to the legal issue of sufficiency of evidence de
novo. United States v. Lauder, 409 F.3d 1254, 1258 (10th Cir. 2005). This Court also
reviews the “evidence in the light most favorable to the government to determine whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Id. at 1259 (citing United States v. Reece, 86 F.3d 994, 995–96 (10th
Cir. 1996)). Additionally, “while the evidence supporting the conviction must be
substantial and do more than raise a mere suspicion of guilt, it need not conclusively
exclude every other reasonable hypothesis and it need not negate all possibilities except
guilt.” United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (internal citations
omitted).
Title 18, United States Code, Section 912 states:
Whoever falsely assumes or pretends to be an officer or employee acting
under the authority of the United States or any department, agency or
officer thereof, and acts as such, or in such pretended character demands or
obtains any money, paper, document, or thing of value, shall be fined under
this title or imprisoned not more than three years, or both.
18 U.S.C. § 912 (2009). For a defendant to be convicted under this statute, two elements
must be present: false representation of being an officer and some overt act. Dickson v.
United States, 182 F.2d 131, 132 (10th Cir. 1950). Congress enacted this statute with the
purpose of maintaining “the general good repute and dignity of the (government) service
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itself.” United States v. Lepowitch, 318 U.S. 702, 704 (1943) (citing United States v.
Barnow, 239 U.S. 74, 80 (1915)).
In this case, the parties do not dispute the fact that Neidlinger falsely represented
himself to Virginia Riley as a United States Marshal. The parties do dispute, however,
whether there has been an overt act. We must decide whether: 1) showing a badge; 2)
stating the possession of a badge; 3) exclaiming that because of the badge, the defendant
will not be pushed around any more; and 4) demanding to see the mayor without an
appointment results in an overt act above the mere false representation of claiming to be a
United States Marshal.
This circuit has not defined the statutory phrase, “acts as such.” This circuit does,
however recognize that there is no uniform accepted definition of the phrase, “acts as
such,” and that there is disagreement in the circuits over the difference between an overt
act and an original act of impersonation. United States v. Wright, 300 Fed. App’x 608,
611 n.3 (10th Cir. 2008) (unpublished). Several courts have decided that there is no
distinction between an overt act and an original act of impersonation for purposes of 18
U.S.C. § 912 and that the term “acts as such” is mere surplusage. See United States v.
Gayle, 967 F.2d 483, 488 (11th Cir. 1992) (“an indictment [under 18 U.S.C. § 912] need
not allege additional acts beyond the general act of impersonation”); United States v.
Cohen, 631 F.2d 1223, 1224 (5th Cir. 1980) (stating that a person signing in at a
penitentiary as associate attorney general and then representing to an inmate that he is the
associate attorney general is sufficient to describe “acts as such”); United States v.
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Hamilton, 276 F.2d 96, 97 (7th Cir. 1960) (“wearing firearms in the . . . home was an act
in keeping with his pretended character”). This Court has, however, stated that the statute
involves “two separate and distinct offenses.” United States v. Milton, 421 F.2d 586, 587
(10th Cir. 1970).
The circuit courts requiring a second, distinct act beyond the initial act of
impersonation have provided many indicators for what differentiates an overt act from an
initial act of impersonation. The act must exceed mere bragging, bravado or puffery. See
Barnow, 239 U.S. at 77 (“‘to act as such’ means no more than to assume to act in the
pretended character. It requires something beyond the false pretense with intent to
defraud; there must be some act in keeping with the pretense; but it would strain the
meaning of the section to hold that the offender must act as a veritable officer of the
government would act.”); United States v. Robbins, 613 F.2d 688, 692 (8th Cir. 1979)
(“The carrying of a pistol, handcuffs, identification card and a badge go beyond ‘mere
bravado.’”); United States v. Rosser, 528 F.2d 652, 657–58 (D.C. Cir. 1976) (“focusing
attention on the nature of the defendant’s action should differentiate the mere braggart
from the criminal...”). An overt act must be more than idle boasting. Hamilton, 276 F.2d
at 98. An overt act may involve integral parts of an official routine. See Robbins, 613
F.2d at 692 (“[Carrying a pistol, handcuffs, an identification card and a badge] are
integral parts of the official routine of an FBI agent.”). Notably, an overt act would cause
the deceived person “to follow some course he would not have pursued but for the
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deceitful conduct.” Lepowitch, 318 U.S. at 704; United States v. Gilbert, 143 F.3d 397,
398 (8th Cir. 1998).
The government claims that the overt act in this case is the flashing of the badge,
demanding to see the mayor, shouting that he will not be pushed around anymore, and
stating that he had a badge now. The defendant, on the other hand, argues that he was on
a personal quest seeking personal vindication and therefore cannot be convicted under the
statute. The defendant misses the rationale behind the statute and reads into it more than
Congress intended. As mentioned earlier, the purpose of the statute is to maintain “the
general good repute and dignity of the (government) service itself.” Lepowitch, 318 U.S.
at 704 (citing Barnow, 239 U.S. at 80). Nowhere does the statute, or case law, require
that the defendant impersonate an official in his official capacity for a non-personal
purpose. Supreme Court case law is clear that this is not the case. Barnow, 239 U.S. at
77. A real United States Marshal in the same situation would not flash a badge, point to
it, and tell the mayor’s secretary that he has a badge so he will not be pushed around.
This was an overt act beyond the original impersonation because Neidlinger tried to use
the authority of the United States Marshals Service to see the mayor.
Further, Neidlinger attempted to cause Virginia Riley “to follow some course [she]
would not have pursued but for the deceitful conduct.” Lepowitch, 318 U.S. at 704;
Gilbert, 143 F.3d at 398. Neidlinger used the badge, title and authority of the office to
gain admittance to the mayor’s office. Neidlinger’s actions went beyond mere bragging,
puffing, or idle boasting. He did not tell Riley in casual conversation that he was a now a
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United States Marshal. Neidlinger told her that because he was now a United States
Marshal, he would not be pushed around anymore and that he wanted to see the mayor
immediately.
Additionally, this Court believes that carrying a badge of the agency is an integral
part of the official routine of a United States Marshall and provided Neidlinger with the
apparent authority of the United States Marshals. Neidlinger’s behavior went beyond
mere representation. Deputy Marshal Conmay testified at trial that people “pay great
attention to” the fact he is a United States Marshal. He further testified that “no request
[he] make[s] is put aside” after he identifies himself as a marshal.
The defendant believes that he must have performed an official, authorized task of
a United States Marshal to be convicted of the statute. The defendant argues that this
Court should look to United States v. York, 202 F. Supp. 275, 276, (E.D. Va. 1962). In
York, a young woman bought a dress on credit from a department store. Id. On her credit
application, she stated that she was an employee of the Federal Bureau of Investigation
(FBI). Id. She lied about her employment status. Id. Her only connection to the FBI
was a job interview. Id. While parallels can be drawn between York and the present case,
the defendant’s reliance on York is misplaced. First, there is no overt act in York. The
woman buying the dress falsely misrepresents that she is an FBI employee. She does not
present a badge, a fake identification card, or a gun. She makes no showing of apparent
authority. The woman in York simply wrote down that she worked at the FBI. In
contrast, Neidlinger not only stated that he was a United States Marshal, but also pointed
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to his badge, stated he had a badge now, exclaimed he would no longer be pushed around
and demanded to see the mayor. There is a distinction in that Neidlinger went beyond
mere bragging about his false employment. Showing a badge is an overt act. Robbins,
613 F.2d at 692 (“The carrying of a pistol, handcuffs, identification card and a badge go
beyond ‘mere bravado.’”). Neidlinger attempted to use his “status” as a United States
Marshal to see the mayor, asserting that his position gave him the authority to see the
mayor immediately. In contrast, York merely represented that she was an employee of
the FBI and in no way claimed that her authority to buy the dress derived from the FBI.
The defendant further cites York to assert that to violate the statute, a defendant
must be acting in an official capacity of the office he is impersonating. As mentioned
earlier, this argument is without merit and contravened by Supreme Court precedent. See
Barnow, 239 U.S. at 77 (“it would strain the meaning of the section to hold that the
offender must act as a veritable officer of the government would act.”).
Finally, the defendant looks to York to argue that when the impersonation is for
one’s personal benefit, there is no violation of the law. This, too, is not an accurate
statement of the law. See United States v. Parker, 699 F.2d 177, 177 (4th Cir. 1983) (per
curiam) (affirming conviction of a defendant impersonating an Internal Revenue Service
agent while buying firewood at the full price); Robbins, 613 F.2d at 692 (“the
prosecution, by showing that [the defendant] carried a gun and handcuffs and did so in
cashing a check and carrying on his business, alleged and proved acts sufficient to
comply with the ‘acts as such’ requirement of the statute.”).
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For the above stated reasons, we find that even under the strictest construction of
18 U.S.C. § 912, a reasonable jury could conclude beyond a reasonable doubt that
Neidlinger falsely represented himself as a United States Marshal and “acted as such” by
pointing to his badge and demanding immediate access to the mayor. Accordingly, the
evidence was sufficient to sustain Neidlinger’s conviction.
B. The District Court’s Jury Instructions Were Not Erroneous
This Court reviews “de novo jury instructions as a whole and view them in the
context of the entire trial to determine if they accurately state the governing law and
provide the jury with an accurate understanding of the relevant legal standards and factual
issues in the case.” United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir. 2008)
(internal quotations omitted). Whether a district court’s decision “to give or to refuse a
particular jury instruction” is reviewed for abuse of discretion. Id. This Court will
reverse only if it has “substantial doubt that the jury was fairly guided.” United States v.
Smith, 13 F.3d 1421, 1424 (10th Cir. 1994).
The defendant claims that the district court committed error in not giving a jury
instruction defining the phrase, “act as such,” and instead allowing counsel to argue the
meaning during closing arguments. During the instruction conference, on ruling on this
issue, the district court stated:
What I think, [defense counsel], is that they have left this intentionally
undefined so that counsel can argue it and shape it to his ends. And I
believe that that’s what you two are going to do, really, and so I believe I
will leave it just like it is. I think that an act in the assumed role is meant to
give you some latitude.
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The court instructed the jury as follows:
The Defendant is charged in the Indictment with a violation of 18 U.S.C.
§ 912.
The law makes it a crime to pretend to be an officer or employee
acting under the authority of the United States or any department, agency,
or officer thereof.
To find the Defendant guilty of this crime you must be convinced
that the government has proved each of the following beyond a reasonable
doubt:
First: the Defendant falsely assumed and pretended to be an officer
or employee acting under the authority of the United States;
Second: the Defendant knew that such assumption or pretension was
false;
Third: the Defendant committed any act in the assumed role.
The defendant first contends that because the jury heard the prosecution’s
interpretation of “act as such,” the jury was not adequately instructed on the charge. The
defense argues that the defendant must act as a marshal would on official business to be
found guilty under the statute. The defendant states that the government’s definition of
“acts as such” is not supported by this circuit’s case law. In support of this contention,
the defendant lists several cases. The defendant’s reliance on these cases is again
misplaced. In Milton, 421 F.2d at 587, the trial court misconceived the charge made in
the indictment when it stated the only question was whether the defendant represented
himself as a federal employee. That did not occur here, where the jury was charged with
finding that the defendant misrepresented himself and that he committed any act in that
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role. Next, the defendant relies upon Dickson, 182 F.2d at 134. The Dickson Court
reversed the trial court for failing to permit cross-examination, not for sufficiency of
evidence. Id.The defendant also compares his case to United States v. Harth, 280 F. Supp. 425,
427 (W.D. Okla. 1968), which states that “an indictment is defective if it states that the
Defendant engaged in being something which is the pretense charged, but the indictment
is good if it states that the Defendant engaged in doing something which is not the
pretense itself in the pretended capacity.” The fundamental disagreement between the
parties is whether Neidlinger’s representations of showing the badge and making the
demands to Virginia Riley constituted an additional, overt act. This case does not further
the defendant’s argument as to the jury instructions, but instead relates to the defendant’s
first argument as to sufficiency of the evidence.
Finally, the defendant points to Wright, 300 Fed. App’x at 611 n.3. In Wright, the
only relevant portion of the opinion to the current case is footnote three, which states that
there “is no uniformly accepted definition of the phrase “acting as such,” and courts
disagree with respect to the amount of independence required to separate an overt act
from the original act.” Id. The Wright court concluded that it did not need to address that
question because the defendant’s actions “went beyond mere bravado.” Id.In its response, the government states that the district court did not abuse its
discretion by allowing counsel to argue the meaning of the phrase. The government
contends that the defendant actually benefitted from this argument because he at least had
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the opportunity to argue that he must have violated an official duty of a United States
Marshal to be convicted under the statute.
The district court did not abuse its discretion in not defining the phrase, “acts as
such.” The jury instructions laid out the law requiring a misrepresentation, knowledge
that it was false, and an act in the assumed role. To reverse the conviction, this Court
must have “substantial doubt that the jury was fairly guided.” Smith, 13 F.3d at 1424. In
allowing counsel to argue the meaning of “acts as such,” we cannot find that the district
court abused its discretion. Additionally, we find that the jury instructions accurately
state the governing law and are sufficient to accurately inform the jury of the applicable
legal standards. Therefore, the jury instructions were not erroneous.
III. CONCLUSION
In this case, the evidence was sufficient to satisfy even the strictest construction of
18 U.S.C. § 912 and the district court’s jury instructions regarding the “acts as such”
element of the charged offense were not erroneous. Accordingly, we AFFIRM.
ENTERED FOR THE COURT,
Frederick P. Stamp, Jr.
Senior District Judge
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