Congressional Aide Guise Will Cost Tax Preparer

     SAN FRANCISCO (CN) - A tax preparer was properly convicted of impersonating a congressional aide in a scheme to calm a client, the divided 9th Circuit ruled Thursday.
     Susan Tomsha-Miguel, owner of a small tax-preparation business in Atwater, Calif., found herself in hot water after a client sought help with an Internal Revenue Service dispute in early 2011. Tomsha-Miguel contacted then-Congressman Dennis Cardoza's office and asked the politician to call the IRS on the client's behalf.
     Cardoza's office offered to help but asked the client to complete a release form, which aides faxed to Tomsha-Miguel on official letterhead. Rather than have the client fill out the release, however, Tomsha-Miguel photocopied Cardoza's letterhead onto a letter she wrote and signed as "William G. Darton, Aide to Congressman Dennis A. Cardoza."
     The faked letter, addressed to Tomsha-Miguel, promised that the director of the IRS' taxpayer advocate service would make the client's issue a "number one priority." Tomsha-Miguel faxed the letter to the client who - unfortunately for Tomsha-Miguel - tried to follow up directly with Cardoza's office and the fictional Darton.
     After an FBI investigation, a federal grand jury indicted Tomsha-Miguel on one count of impersonating an officer or employee of the United States. She was eventually convicted and sentenced to a year of probation and 50 hours of community service.
     On appeal to the 9th Circuit, Tomsha-Miguel argued that the government failed to make its case because she addressed the forgery to herself and that a person cannot pretend to herself that she is a federal employee.
     But whether she fooled herself or not, Tomsha-Miguel still impersonated a federal employee - albeit a fictional one, a 9th Circuit majority found Thursday.
     "Impersonation occurs when any person 'assumes to act in the pretended character' of a government official," Judge Richard Paez wrote for the court, citing the 1943 decision in United States v. Lepowitch. "Here, Tomsha-Miguel crafted a fraudulent letter when she prepared it on behalf of 'William G. Darton,' the fictional 'Aide to Congressman Dennis A. Cardoza;' signed the letter on behalf of the fictional aide; and copied the official letterhead of Congressman Cardoza's office into the letter. The substance of the letter also related steps that the congressman's office had purportedly taken on behalf of Tomsha-Miguel's client. In light of these facts, a jury could reasonably conclude that these actions constituted an effort to 'assume to act in the pretended character' and amounted to impersonation of a federal officer or employee."
     Tomsha-Miguel failed to gain traction with the appellate court by arguing that she could not have "acted as such" since she took no further action as Darton beyond the letter.
     "Here, Tomsha-Miguel falsely assumed the role of a fictional congressional aide - William G. Darton - when she prepared a fraudulent letter and then signed it in his name," Paez wrote, joined by Judge Susan Graber. "She then faxed the letter to her client in order to effectuate the impersonation and convince the client that the Congressman's office was seeking to resolve his tax dispute with the IRS. In light of these facts, a reasonable jury could conclude that Tomsha-Miguel's actions were 'consistent with the assumed character' of a government official, and in furtherance of the impersonation, when she transmitted the fraudulent letter to the client. Accordingly, the District Court did not err in denying Tomsha-Miguel's motion for judgment of acquittal."
     The panel also declined to entertain Tomsha-Miguel's claim that impersonating a congressional aide is protected free speech.
     "As United States v. Alvarez made clear, the government has the constitutional power to prohibit the impersonation of federal officials and employees, and that prohibition serves the substantial government interests of 'protecting the integrity of government processes,' and 'maintaining the general good repute and dignity of government service itself,'" Paez wrote. "The government's interests are concerned solely with the act of impersonation itself, not the content of the impersonation."
     In a three-paragraph dissent, Judge William Fletcher said that Tomsha-Miguel should not have been convicted.
     "Ms. Tomsha-Miguel performed two acts, neither of which qualifies as assuming or pretending to be William Darton," Fletcher wrote. "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."