APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 1:11-CR-00036-KHV-1).
Ty Gee, Haddon, Morgan and Foreman, P.C., Denver, Colorado, for Defendant-Appellant.
James C. Murphy, Assistant United States Attorney (John F. Walsh, United States Attorney, and Joseph Mackey, Assistant United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before LUCERO, MURPHY, and PHILLIPS, Circuit Judges.
It is a federal crime to, inter alia, make, utter, or possess " a forged security . . . of an organization, with intent to deceive another person, organization, or government." 18 U.S.C. § 513(a). The term " security" includes checks. Id. § 513(c)(3)(A). An " organization" is " a legal entity, other than a government, established or organized for any purpose, . . . which operates in or the activities of which affect interstate or foreign commerce." Id. § 513(c)(4). " [T]he term 'forged' means a document that purports to be genuine but is not because it has been falsely altered, completed, signed, or endorsed, or contains a false addition thereto or insertions therein . . . ." Id. § 513(c)(2).
In 2006, United States Postal Inspectors learned Crosby Powell had deposited checks stolen from the United States mail into his accounts at TCF Bank, UMB Bank, and Wells Fargo. An investigation revealed Powell had altered payee information or forged endorsements on some of the stolen checks. The United States obtained a superseding indictment charging Powell with eleven counts of uttering or possessing forged checks, in violation of 18 U.S.C. § 513(a), and seventeen counts of possessing stolen mail, in violation of 18 U.S.C. § 1708.
The eleven § 513(a) counts are the exclusive focus of this appeal. Each of those counts followed a nearly identical format; they state that, on or about a designated date, Crosby Powell
unlawfully and knowingly possessed and uttered securities to wit: a forged check of an organization (federally insured bank), the activities of which affected interstate commerce, with the intent to deceive federally insured banks and merchants and individuals, all in violation of Title 18, United States Code, Section[ ] 513(a) . . . .
At trial, the government sought to prove the forged checks were " of an organization" by presenting evidence that each bank into which the forged checks were deposited was a federally insured bank operating in interstate commerce. The jury convicted Powell on all eleven § 513(a) counts set out in the indictment.
In his briefing before this court, Powell sets out three challenges to his § 513(a) convictions, all of which are raised for the
first time on appeal. Although coming at the issue from slightly different angles, all three challenges are based on the same premise: at no point during his possession or utterance of the forged checks were the checks " of" the banks into which they were deposited. This court agrees the forged checks were not " of" the depository banks. Because Powell did not raise his arguments before the district court, however, he is not entitled to relief unless he can " successfully run the gauntlet created by our rigorous plain-error standard of review." United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012).
Powell cannot satisfy this burden as to all counts of conviction. In particular, he cannot demonstrate any error with regard to Counts 13 and 20. Even disregarding the depository banks, the record conclusively establishes, consistent with the allegations set out in the indictment, that the two relevant checks, one underlying each count, were of an organization operating in interstate commerce. Although Powell can establish a plain error that affects his substantial rights as to Count 10, he cannot demonstrate the failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. (providing this court has discretion to correct a plain error that affects substantial rights only if failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings). As to the remaining counts, however, Powell has satisfied all four requirements necessary to obtain relief under the plain-error standard. Accordingly, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court (1) affirms Powell's convictions as to Counts 10, 13, and 20; and (2) remands to the district court so it can vacate the remaining convictions and take any other necessary action consistent with this opinion.
On appeal, Powell raises three interrelated challenges to his § 513(a) convictions: (1) the indictment is invalid on its face as it failed to charge an offense or give fair notice of the nature of the charges; (2) the government's evidence and the jury instructions amount to an unconstitutional amendment of ...