United States v. Jackson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4065
ERIC LARIMORE JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-422-A)
Submitted: August 4, 1998
Decided: September 1, 1998
Before MURNAGHAN and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David S. Bracken, GREENBERG BRACKEN & TRAN, Alexandria,
Virginia, for Appellant. Helen F. Fahey, United States Attorney,
Damon J. Savoy, Special Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Eric Larimore Jackson appeals from a district court order affirming
a magistrate judge's judgment of conviction and sentence for imper-
sonating a District of Columbia police officer in violation of 18
U.S.C. § 13 (1994), assimilating Va. Code Ann.§ 18.2-174 (Michie
1996). Jackson alleges that there was insufficient evidence to support
the court's finding of guilt. He also asserts that the magistrate judge
erred in failing to grant Jackson's motion for judgment of acquittal,
arguing that the Government erred in charging him with violating 18
U.S.C. § 13, assimilating Va. Code Ann. § 18.2-174, because the
offense fell within the scope of 18 U.S.C. § 912 (1994). Finding no
error, we affirm.
On January 28, 1997, Jackson and his wife were seated in a car
parked in an overlook of the George Washington Memorial Parkway.
United States Park Police Officer Kenneth Fornshill observed the
vehicle and noticed trash on the ground directly outside the driver's
side window of Jackson's car. Jackson was seated in the front passen-
ger seat of the vehicle. Officer Fornshill approached the car and asked
Jackson's wife, seated in the driver's seat, for identification. At that
point, Jackson leaned forward and presented Fornshill with a District
of Columbia Metropolitan Police Officer identification card bearing
his photo. Fornshill asked Jackson if he was a Metropolitan Police
Officer, and Jackson stated that he was. The identification card that
Jackson presented was issued in 1971.
After Jackson's wife exited the vehicle, Fornshill asked her if Jack-
son was a police officer. She responded that Jackson used to work for
the District of Columbia police. Fornshill then went around to the pas-
senger side window and asked Jackson again if he was a Metropolitan
Police Officer. Again, Jackson told Fornshill that he was. Fornshill
then asked Jackson what district he worked in. Jackson replied that
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he was inactive at the time. Upon further questioning, Jackson stated
that he was not a police officer but that he had been one in the past.
Jackson also admitted to presenting the identification card to another
Park Police Officer earlier in the day. Officer Fornshill cited Jackson
for impersonating a police officer, in violation of 18 U.S.C. § 13,
assimilating Va. Code Ann § 18.2-174.
A bench trial was held before a magistrate judge in accordance
with 18 U.S.C.A. § 3401 (West 1985 & Supp. 1998). Jackson moved
for judgment of acquittal pursuant to Fed. R. Crim. P. 29(a), after the
Government presented its evidence, arguing that the Government
improperly charged him. The magistrate judge reserved decision on
the motion, requested further briefing on the issue, and allowed the
trial to proceed. The magistrate judge entered a judgment of convic-
tion, from which Jackson appealed to the district court pursuant to 18
U.S.C. § 3402 (1994) and Fed. R. Crim. P. 58(g)(2)(B). After review-
ing the record, the district court affirmed the decision of the magis-
trate judge. Jackson noted a timely appeal.
The district court's review of a conviction entered by a magistrate
judge is not a trial de novo; rather the district court's review is the
same as the review by a court of appeals of a decision by a district
court. See Fed. R. Crim. P. 58(g)(2)(D); United States v. Peck, 545
F.2d 962, 964 (5th Cir. 1977). This court's review is governed by the
same standard as is the district court's review. See United States v.
Hughes, 542 F.2d 246, 248 (5th Cir. 1976).
We review challenges to the sufficiency of the evidence by viewing
the evidence at trial in the light most favorable to the prosecution,
including all reasonable inferences that can be drawn from the evi-
dence. See Glasser v. United States, 315 U.S. 60, 82 (1942); United
States v. Russell, 971 F.2d 1098, 1109 (4th Cir. 1992). Questions of
law, however, are reviewed de novo on appeal. See United States v.
Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, 517 U.S. 1239 (1996).
First, we address whether the Government could charge Jackson
under 18 U.S.C. § 13 or whether Jackson's conduct was covered by
18 U.S.C. § 912. Under 18 U.S.C. § 912, it is unlawful for a person
to impersonate an officer or employee of the United States or any
department, agency, or officer thereof. Jackson argues that, because
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he was charged with impersonating a District of Columbia officer, his
crime falls under § 912 because District of Columbia employees are
employees of the federal government. Courts addressing this issue
have consistently held that the District of Columbia is not a depart-
ment or agency of the United States. See John McShain, Inc. v. United
States, 375 F.2d 829, 830-31 (Ct. Cl. 1967); Fernandez v. United
States, 12 Cl. Ct. 764, 767 (1987).
Jackson argues that, in many instances, District of Columbia police
officers are deemed to be employees of the United States. Federal law
affords District of Columbia employees federal employee status in
certain instances. See, e.g., Federal Employees Compensation Act, 5
U.S.C. § 8101 (1994) (except as otherwise excluded by statute); Fed-
eral Employees Retirement Act, 5 U.S.C.A. §§ 8301-8351 (West
1996 & Supp. 1998). However, Congress specifically included Dis-
trict of Columbia employees in these statutes. Congress did not pro-
vide for inclusion when it enacted the predecessor to 18 U.S.C. § 912,
when it amended the statute, or when it enacted subsequent legislation
which included employees of some federal instrumentalities within
the scope of 18 U.S.C. § 912. See Pierce v. United States, 314 U.S.
306, 310-12 (1941) (holding that neither the predecessor to 18 U.S.C.
§ 912 nor subsequent legislation brought employees of the Tennessee
Valley Authority within the scope of the statute and holding that the
absence of specific inclusion by Congress indicates an intention to
exclude). Because Congress did not expressly include District of
Columbia employees within the scope of the statute and because the
District of Columbia is not a department or agency of the United
States, 18 U.S.C. § 912 is not applicable to persons who impersonate
District of Columbia police officers. Therefore, Jackson was properly
charged.
Next, Jackson argues that his actions were insufficient to find that
he impersonated an officer because he did not falsely assume or exer-
cise the functions, powers, duties, and privileges incident to being a
police officer. Jackson argues that just his affirmative answers to
Officer Fornshill's questions are insufficient to convict him without
further action. The statute reads: "[a]ny person who shall falsely
assume or exercise the functions, powers, duties and privileges inci-
dent to the office of . . . police officer . . . or who shall falsely assume
or pretend to be any such officer, shall be deemed guilty of a Class
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1 misdemeanor." Va. Code Ann. § 18.2-174. It is clear from the stat-
ute that merely pretending to be a police officer is sufficient to violate
the applicable law. Jackson's actions and responses when he pres-
ented his identification are sufficient to find that he falsely assumed
or pretended to be a police officer of the District of Columbia.
We therefore affirm the judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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