483 F2d 444 United States v. Johnson

483 F.2d 444

UNITED STATES of America, Plaintiff-Appellee,
v.
Lloyd Ervin JOHNSON, Defendant-Appellant.

No. 73-1780 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Aug. 20, 1973.

J. Kennedy Hutcheson, Jacksonville, Fla. (Court appointed) for defendant-appellant.

John L. Briggs, U. S. Atty., John J. Daley, Jr., Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

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Lloyd Ervin Johnson takes this appeal from his conviction of violating 18 U.S. C. Sec. 914. That statute provides criminal penalties for "[w]hoever falsely personates . . . any person entitled to any annuity, dividend, pension, wages, or other debt due from the United States, and, under color of such false personation, . . . receives or endeavors to receive . . . the money of any person really entitled to receive such annuity, dividend, pension, wages, or other debt . . . ." Johnson's only claim on appeal is that the evidence was insufficient to allow the jury to find the requisite false personation. The facts showed that Johnson somehow came into possession of a stolen Social Security check which had been endorsed in blank by the named payee, Charles Guyton. Johnson attempted to cash the check at a local grocery store, but, unfortunately for Johnson, the store's proprietor had been notified by telephone to be alert for anyone attempting to pass the stolen check. The proprietor notified his cashier, who refused to cash the check when presented by Johnson. The proprietor testified as follows:

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A And so, I took the check and asked him, "Is it your check?" And he [defendant] said, "Yes."

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And I assumed from the phone call that it wasn't his. So, I asked for his ID and he said he didn't have any. Then I told him that I had received a phone call that the check was stolen and I didn't think it was his check. He claimed that it was. And I said, "Well, I'm not going to cash it." And he said, "Well, give it back to me." And I said, "I'm going to keep it."

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A He said he was going to call the police. And I said, "Well, I'll call them for you."

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So, I called them and he went out the door.

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A Well, he just-well, he just put on a good act like it was his check. That's all.

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Viewing the evidence in light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we find that the jury could have found beyond a reasonable doubt that Johnson by words and conduct represented himself to be Charles Guyton. Therefore, we need not reach the question of whether Johnson could have been convicted under 18 U.S. C. Sec. 914 had he represented that, though he was not the named payee, still he was the one entitled to receive payment of the check.

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Affirmed.

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Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 431 F.2d 409, Part I (5th Cir. 1970)