United States v. Powell
2014 U.S. App. LEXIS 18064
| 10th Cir. | 2014Background
- Powell was charged 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.
- The forged checks were alleged to be “of” an organization, i.e., a federally insured bank operating in interstate commerce.
- At trial the government offered evidence that each forged check was drawn on a federally insured bank and deposited into banks in interstate commerce.
- Powell challenges the § 513(a) convictions on appeal, contending the checks were not “of” the banks into which they were deposited and the indictment was thereby invalid.
- The panel analyzes whether any of the convictions survive plain-error review and whether some counts lack sufficient evidence or contain a legal error.
- The court ultimately affirms Counts 10, 13, and 20 and remands to vacate the remaining convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial validity of indictment | Powell argues indictment fails to charge offense or give notice. | Powell argues indictment as drafted is deficient on ‘of’ element. | Indictment facially valid; notice satisfied; no reversible error. |
| Variance/sufficiency of the evidence | Powell contends no counts prove the forged checks were ‘of’ an organization. | Government contends forged checks can be ‘of’ the organization via connection to the bank. | Counts 13 and 20 affirmed; other counts lacking support; Count 10 flawed due to dual theories. |
| Plain-error review applicability | Powell asserts plain error for insufficient evidence warrants relief. | Government argues plain-error standard applies since issues first raised on appeal. | Plain-error standard applied; several convictions reversed or vacated; some affirmed. |
| Effect of Griffin v. United States on multi-theory counts | Powell argues Griffin requires relief when one theory is legally defective. | Government cites Griffin allowing correction when a proper theory exists. | Griffin applied; Count 10 conviction vacated due to legal error on alternative theory. |
Key Cases Cited
- Redcorn v. United States, 528 F.3d 727 (10th Cir. 2008) (indictment sufficiency tested on face, not evidence)
- Dashney, 117 F.3d 1197 (10th Cir. 1997) (practical over technical standard for indictment sufficiency)
- McGehee, 672 F.3d 860 (10th Cir. 2012) (plain-error framework for unraised issues)
- Goode, 483 F.3d 676 (10th Cir. 2007) (plain-error review for insufficiency; miscarriage of justice analysis)
- Griffin v. United States, 502 U.S. 46 (Supreme Court 1991) (multi-theory conviction; proper theory sustains verdict; defective theory can lead to error)
- United States v. Wardell, 591 F.3d 1279 (10th Cir. 2009) (plain-error analysis in criminal appeals)
- United States v. Ruiz-Gea, 340 F.3d 1181 (10th Cir. 2003) (plain-error review; statutory interpretation can render error plain)