United States v. Tomsha-Miguel

18 U.S.C. § 912, which prohibits the impersonation of a United States officer or employee, is a permissive restriction on speech because it protects the integrity and repute of the government and it is not unconstitutionally overbroad because it incorporates the element of intent to deceive.

Susan Tomsha-Miguel was the owner of a small tax services business in California. In an attempt to lessen the concerns of a client, she wrote a letter to herself, using the letterhead of a congressman she had previously received, and signed it with a name of a fake aide to the congressman. The letter was then “forwarded” to the client. When the client contacted the congressman about the letter, the government charged Tomsha-Miguel under 18 U.S.C. § 912 for impersonating an officer or employee of the United States. A jury found Tomsha-Miguel guilty. On appeal, she first argued there was insufficient evidence to convict her. The Ninth Circuit found that Tomsha-Miguel met the first offense of two within 18 U.S.C. § 912 because she (1) assumed and pretended to be an officer or employee acting under authority of the United States and, (2) acted as such. Because Tomsha-Miguel’s acts amounted to more than “mere bravado,” in that she completed an “overt act” in furtherance of the assumed character, there was sufficient evidence to charge her under the statute. Tomsha-Miguel’s second argument, alleging improper comments by the prosecutor in the trial’s opening and closing arguments, failed under the plain error standard. Her third argument reasoned that 18 U.S.C. § 912 is an unconstitutional restriction on speech. The panel analyzed the statute under the intermediate standard because it is concerned with acts of impersonation, or conduct with an expressive element, rather than content, or “pure speech.” Based on the United States Supreme Court’s findings in United States v. Alvarez, the panel held that 18 U.S.C. § 912 is constitutional because “statutes that prohibit false speech in order to ‘protect the integrity of government processes’” are permissive restrictions. AFFIRMED.