                                                    NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 09-1723




               UNITED STATES OF AMERICA

                               v.

                      RAHIEM BROOKS,
                                Appellant




         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. No. 2-05-cr-00696-001)
          District Judge: Honorable Gene E. K. Pratter


           Submitted Under Third Circuit LAR 34.1(a)
                      September 17, 2010

     Before: SLOVITER, BARRY and SMITH, Circuit Judges

                   (Filed September 20, 2010)


                           OPINION
SLOVITER, Circuit Judge.

       Appellant Rahiem Brooks was convicted by a jury on six counts of uttering and

possessing counterfeit securities in violation of 18 U.S.C. § 513(a). Brooks asserts that

there was insufficient evidence to prove that he was guilty of the crime charged. He also

asserts that the District Court’s jury instructions were improper. We will affirm the

judgment of conviction.1

                                             I.

       Brooks readily concedes that he used six false checks, each “made to look and be

accepted like a check written on conventional PNC Bank personal checking accounts.”

Appellant’s Br. at 2-3. The checks included Brooks’ authentic name and address, but the

account and routing numbers were fraudulent and represented no actual account that

existed at PNC Bank. He passed these six checks at Philadelphia area retail stores and

fraudulently purchased various merchandise, some of which Brooks thereafter returned

for cash. For this conduct the jury convicted him of six counts of “[u]ttering and




                   1
                    The District Court had jurisdiction under 18 U.S.C. § 3231
            and we have appellate jurisdiction under 28 U.S.C. § 1291. We
            apply a “particularly deferential” standard of review when deciding
            whether a jury verdict rested on sufficient evidence. United States
            v. Rawlins, 606 F.3d 73, 80 (3d Cir. 2010) (citation and internal
            quotation marks omitted). We view the evidence in the light most
            favorable to the Government and will sustain the verdict if “any
            rational trier of fact could have found the essential elements of the
            crime beyond a reasonable doubt.” Id. (citation and internal
            quotation marks omitted).

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possessing counterfeit securities” under 18 U.S.C. § 513(a). Supp. App. at 1.

                                               II.

       Brooks’ bases for appeal are the following: he contends that he did not violate

§ 513(a) because, as he puts it, “[t]he Government charged [him] with the wrong crime.”

Appellant’s Br. at 9. That is, he asserts that his conduct was not forgery because he

“signed all six checks using his own true name,” Appellant’s Br. at 12, and that the

checks were not counterfeit because “a counterfeiting conviction is not sustainable just

because the evidence was sufficient to permit the jury to find that [Brooks] had uttered

and possessed . . . checks made from scratch without . . . an account,” Appellant’s Br. at

17. He further contends that § 513 does not cover personal checks. Finally, Brooks

asserts that the District Court improperly instructed the jury on the elements of counts one

through six of the indictment, and abused its discretion by instructing the jury that they

could find Brooks guilty if he violated the “forgery” and “counterfeit” elements of

§ 513(a).

        Section 513(a) provides that “[w]hoever makes, utters or possesses a counterfeited

security of . . . an organization, or whoever makes, utters or possesses a forged security

of . . . an organization, with intent to deceive another . . . shall be fined . . . or imprisoned

. . . .” 18 U.S.C. § 513(a). The statute defines key terms, providing that “the term

‘counterfeited’ means a document that purports to be genuine but is not, because it has

been falsely made or manufactured in its entirety,” id. § 513(c)(1); “the term ‘forged’



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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 insertion

therein, or is a combination of parts of two or more genuine documents,” id. § 513(c)(2).

       It was the Government’s burden to produce sufficient evidence that Brooks’

checks were either forgeries or counterfeits. Brooks avers that “there can be no doubt

that the checks written by . . . Brooks qualify as genuine” because “[t]he instruments

‘purport[] to be’ checks written by . . . Brooks as an account holder at PNC Bank, and that

is precisely what they were.” Appellant’s Br. at 12. This argument is without merit.

       To the contrary, we agree with the Government that “[e]ach check . . . ‘purported’

to be but was not a genuine PNC Bank check drawn on an existing PNC Bank account . . .

.” Appellee’s Br. at 19. The remaining element of the statutory definition of

“counterfeit” is that the checks were “falsely made or manufactured in [their] entirety.”

18 U.S.C. § 513(c)(1). We agree with the Government that “the checks were entirely

false.” Appellee’s Br. at 19. They were manufactured from scratch with false account

and routing numbers, representing that non-existent funds were available in a non-existent

checking account. Although the checks contained Brooks’ real name and signature, a

conviction of uttering or possessing counterfeit documents under § 513(a) does not

require the Government to prove that every aspect of the document is false. See United

States v. Davis, 888 F.2d 283, 285 (3d Cir. 1989). The evidence was sufficient to convict

Brooks of “utter[ing] or possess[ing] a counterfeited security . . . of an organization . . . .”



                                               4
18 U.S.C. § 513(a).2

          Brooks next contends that the District Court provided the jury with improper

instructions because, although the Government acknowledged that it was not pursuing the

argument that Brooks uttered or possessed forged checks, the District Court nevertheless

instructed the jury:

          the indictment in this case alleges that the checks at issue were forged and
          counterfeited. It is not necessary that the Government prove that the checks
          were both forged and counterfeited. Instead, it is necessary that the
          evidence establish that the checks were one or the other . . . .

Supp. App. at 239. The District Court added that “[u]nder the statute Mr. Brooks is

charged with violating – the term ‘forged’ means a document that purports to be genuine,

but is not because it has been falsely altered, completed, signed or endorsed.” Supp. App.

at 241.

          The Government concedes that Brooks objected to these instructions and so our

review is for abuse of discretion and to determine “‘whether, viewed in light of the

evidence, the charge as a whole fairly and adequately submits the issues in the case to the

jury.’” United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (quoting Bennis v.

Gable, 823 F.2d 723, 727 (3d Cir. 1987)).




                       2
                          Brooks’ argument that § 513 “does not cover personal
               checks” is without merit. Appellant’s Br. at 18 (emphasis omitted).
               The statute could hardly be clearer. See 18 U.S.C. § 513(c)(3)(A)
               (defining the term “security” as, among other things, “a . . . check
               . . . .”).

                                                5
       Brooks is correct inasmuch as “a jury should not be instructed on an issue for

which there is so little evidentiary support that no rational jury could accept it.” Tammi v.

Porsche Cars N. Am., Inc., 536 F.3d 702, 708 (7th Cir. 2008) (alteration, citation, and

internal quotation marks omitted). Even were the District Court’s instruction on a forgery

theory of liability superfluous, we find no abuse of discretion as the charge as a whole

fairly and adequately submitted the issues in the case to the jury. See Zehrbach, 47 F.3d

at 1264.

       In Griffin v. United States, the Supreme Court, in affirming a jury’s verdict of

conviction, stated that

       if the evidence is insufficient to support an alternative legal theory of
       liability, it would generally be preferable for the court to give an instruction
       removing that theory from the jury’s consideration. The refusal to do so,
       however, does not provide an independent basis for reversing an otherwise
       valid conviction.

502 U.S. 46, 60 (1991). We agree with the Government that “[t]his case falls squarely

within the confines of Griffin . . . .” Appellee’s Br. at 39.

       Moreover, we are persuaded that the jury was not misled or confused by the

District Court’s arguably superfluous instructions because the Government never argued

that the checks were forged. In its closing argument, after discussing other elements of

the crime such as whether the retail stores’ operations affect interstate commerce, the

Government stated “there are really only two issues left . . . . Were these checks

counterfeit, and did [Brooks] use them with the intent to deceive?” Supp. App. at 211.



                                               6
The verdict form described each of the six counts as “Possessing and Uttering Counterfeit

Securities.” Supp. App. at 26 (emphasis added). The verdict form did not even mention

forgery. We can assume that the jury convicted on the factually sufficient theory of

liability. See United States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002).

       The only remaining issue is whether the District Court committed plain error when

it did not submit to the jury a special verdict form asking it to unanimously vote on

whether Brooks “uttered” or “possessed” the checks at issue. We discern no error, let

alone an error that was obvious and affected Brooks’ substantial rights. See Johnson v.

United States, 520 U.S. 461, 467 (1997).

                                            III.

       For these reasons, we will affirm the District Court’s judgment of conviction.




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