United States v. Susan Tomsha-Miguel

dissenting:

I respectfully dissent.

Ms. Tomsha-Miguel was convicted of violating 18 U.S.C. § 912 , which provides, in relevant part:

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, *1051 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.

Opinion by Judge PAEZ; Dissent by Judge W. FLETCHER.

OPINION

Susan Tomsha-Miguel (“Tomsha-Migu-el”) is the proprietor of a small tax services business in Atwater, California. In early 2011, in an attempt to assuage the concerns of one of her long-time clients, Tomsha-Miguel prepared a letter responding to her client’s tax problems using the *1044 formal letterhead of a United States Representative. Tomsha-Miguel then signed the letter on behalf of a fictional congressional aide and faxed the letter to the client from her fax machine. Her misguided actions were ultimately discovered when the client sought additional information concerning the letter from the congressman’s office, and she was subsequently charged, and ultimately convicted, of impersonating an officer or employee of the United States in violation of 18 U.S.C. § 912 .

In this appeal, Tomsha-Miguel challenges her conviction on several grounds. She contends that there was insufficient evidence to convict her under § 912 because the government did not show that she committed an act consistent with the assumed impersonation. Additionally, she argues that prosecutorial misconduct occurred during trial and that the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10342 Plaintiff-Appellee, D.C. No. v. 1:12-cr-00153-

LJO-SKO-

SUSAN TOMSHA-MIGUEL,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted May 14, 2014—San Francisco, California

Filed September 4, 2014

Before: Susan P. Graber, William A. Fletcher, and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge W. Fletcher UNITED STATES V. TOMSHA-MIGUEL

SUMMARY*

Criminal Law

The panel affirmed a conviction for impersonating an officer or employee of the United States in violation of 18 U.S.C. § 912, in a case in which the defendant, the proprietor of a tax services business center, in an attempt to assuage the concerns of a client, prepared a letter responding to her client’s tax problems using the letterhead of a United States Representative, signed the letter on behalf of a fictional congressional aide, and faxed the letter to the client from her fax machine.

The panel…