United States v. Susan Tomsha-Miguel ( 2014 )

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. Tomsha-Miguel 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-Migu-el 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 Cardo-za. 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.

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.