Friday, October 03, 2014

U.S. v. Powell, 2014 WL 4670899 (9/22/14) (Colo.) - Mr. Powell was convicted of eleven counts of uttering or possessing forged checks, in violation of 18 USC ยง 513(a), with respect to his deposit of checks stolen from the US mail into various bank accounts he held. He maintained on appeal that (1) the indictment was invalid for failure to charge an offense, (2) the evidence and instructions unconstitutionally amended the indictment, and (3) there was insufficient evidence to support his convictions. The Tenth rejects the facial invalidity of the indictment argument, concluding the indictment (1) identified all relevant checks with sufficient specificity to enable a future double jeopardy defense and (2) gave fair notice that the forged checks were "of" a federally insured bank operating in interstate commerce. With respect to the variance and sufficiency of the evidence arguments, the Tenth interprets the "of" in the statute to require that a forged check be "of" a drawee bank that is federally insured, not "of" such a depository bank. Because there was no evidence on a number of counts of conviction that any of the forged checks' payors, payees, or drawee banks are organizations operating in interstate commerce, the court finds the plain error standard is met as to those counts and reverses.