UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

BREEDLOVE, RACHEL L.


98-3135a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: The appellant, Rachel Breedlove,  was
convicted of bank fraud. At trial the Government intro- duced evidence
of her involvement in two prior fraudulent  bank transactions, one of
which involved a bank account held  by William Cloud. Mr. Cloud's role
in the scheme was not  established, and the district court instructed
the jury not to  speculate about his identity or his role in the
transaction.  Ms. Breedlove claims the district court thereby
prevented the  jury from considering a fact that may have raised a
reason- able doubt about her intent to commit the crime of which she 
was convicted. On this ground, Ms. Breedlove seeks a new  trial.
Alternatively, Ms. Breedlove seeks a remand for resen- tencing on the
ground that the district court, when computing  her sentence, should
not have considered the transaction  involving Mr. Cloud. Finally, Ms.
Breedlove asserts that she  was sentenced to a period of supervised
release in excess of  the statutory maximum. We affirm Ms. Breedlove's
convic- tion and remand this case solely so that the district court
may  impose a term of supervised release within the statutory 


I. Background


As a former Marine, Ms. Breedlove received monthly edu- cational
benefit checks from the Department of Veterans  Affairs. Early in
January 1998 she received in the mail a  U.S. Treasury check payable
to her in the amount of $58.65.  At about the same time she opened a
checking account at the  First Union National Bank in Washington, D.C.
Several  days later she deposited into that account a U.S. Treasury 
check seemingly for $998,688.65. The teller assisting Ms.  Breedlove
suspected the check may have been altered, as did  his supervisor.


In February 1998 Ms. Breedlove was indicted for aiding  and abetting
bank fraud, in violation of 18 U.S.C. ss 1344 &  2, and for uttering a
counterfeit obligation of the United  States, in violation of 18
U.S.C. s 472. At trial, in order to  establish Ms. Breedlove's
specific intent to defraud First  Union, the Government presented
evidence of two prior and  allegedly fraudulent bank transactions in
which she had been  involved. The first transaction occurred in August
1997,  when Ms. Breedlove deposited to the account of Mr. William 
Cloud at the Navy Federal Credit Union a check in the  amount of
$1,206,000, drawn upon the Bank of America, and  made payable to Mr.
Cloud. Mr. Cloud had endorsed the  check and an accompanying deposit
slip was filled out before  Ms. Breedlove approached the teller. The
Credit Union soon  determined the check had been altered and it
reversed the  transfer of funds into Mr. Cloud's account.


Shortly thereafter a check in the amount of $850,000,  drawn upon Mr.
Cloud's account at the Credit Union and  made payable to Ms.
Breedlove, was endorsed and deposited  to Ms. Breedlove's checking
account at Central Fidelity Na- tional Bank--to no avail, of course,
as there were by then  insufficient funds in Mr. Cloud's account to
cover the check.  In October 1997 an Internal Revenue Service search
of Ms.  Breedlove's home turned up the checkbook of Mr. Cloud-- who
did not live there--from which the $850,000 check had  been written,
as well as receipts for the $1,206,000 check Ms.  Breedlove had
deposited into Mr. Cloud's account.


The second transaction occurred in December 1997. Short- ly after she
had been sent an educational benefit check in the  amount of $425.19,
Ms. Breedlove deposited into her checking  account at NationsBank a
U.S. Treasury check made payable  to herself, seemingly in the amount
of $4,251.19. The next  day, she withdrew $4,500.00 from her


At the close of Ms. Breedlove's trial, the district court  instructed
the jury in part as follows:


[I]f you decide that the defendant was involved in the  prior
transactions, you may consider the evidence relat- ing to the two
other transactions solely for the purpose of 


deciding whether the defendant acted with the specific  intent to
defraud in committing the offenses charged in  the indictment.


...


And ... I remind you that you have heard evidence  relating to a bank
account held by a person named  William Cloud. You may not speculate
as to who this  person is or what role he may have had in the events
that  have been described to you.


Ms. Breedlove's counsel had objected in advance to the  district
court's mention of Mr. Cloud, on the ground that it  was a "reference
to a specific fact."


The jury convicted Ms. Breedlove on both counts of the  indictment and
the district court sentenced her on each count  to concurrent terms of
46 months of imprisonment, to be  followed by five years of supervised
release. In computing  Ms. Breedlove's sentence, the district court
considered her  previous involvement with fraudulent checks both as
relevant  conduct and as evidence of more than minimal planning.


II. Analysis


Upon appeal Ms. Breedlove raises three issues. She ar- gues that the
district court erred in instructing the jury to  avoid speculation
about Mr. Cloud and his role in the August  1997 transaction. She
claims the district court improperly  considered the August 1997
transaction in calculating her  sentence. And she objects that the
district court ordered her  to serve a period of supervised release in
excess of the  statutory maximum.


A. The Jury Instruction


Under Federal Rule of Criminal Procedure 52, we review a  properly
raised objection to a jury instruction only for non- harmless error;
an objection that was not raised in the  original proceeding we review
only for plain error. See  United States v. Perkins, 161 F.3d 66, 72
(D.C. Cir. 1998).  An objection is not properly raised if it is
couched in terms  too general to have alerted the trial court to the
substance of 


the petitioner's point. See United States v. Pryce, 938 F.2d  1343,
1350 (D.C. Cir. 1991).


Counsel for Ms. Breedlove objected to the district court's  instruction
that the jury refrain from speculating about Mr.  Cloud by stating
that the instruction was a "reference to a  specific fact." Upon
appeal Ms. Breedlove elaborates: The  instruction precluded the jury
from considering the possibility  that in August 1997 she unwittingly
had cashed a check  altered by Mr. Cloud. That fact would have
supported Ms.  Breedlove's defense that she did not know the
$998,688.65  check had been altered and therefore did not have the 
requisite intent to commit the crimes of which she was  accused. Ms.
Breedlove asserts that, in order to preserve  her objection to the
instruction, her counsel was required to  point out to the district
court only that the court should not  make "reference to a specific
fact"; that is, "trial counsel was  not required to point out to the
district court the value to the  defense of the particular facts being
foreclosed by the court's  instruction, just to object that the court
was erring by  instructing on facts."


Read in context,* trial counsel's objection was not specific  enough to
convey the meaning Ms. Breedlove now attributes  to it. The district
court agreed that in her closing arguments  counsel for Ms. Breedlove
could refer to Mr. Cloud and to the  evidence connecting him to the
August 1997 transaction, but  it did not want the jury to speculate
about Mr. Cloud's role in  that transaction. Counsel apparently sensed
some disjunc- tion between the district court's agreement that she
could  refer to Mr. Cloud and the court's concern that the jury not 
speculate "as to who he may be." She did not, however,  make the
substance of this objection, as Ms. Breedlove has  now explained it,
clear to the district court. See United  States v. Spriggs, 102 F.3d
1245, 1259-60 (D.C. Cir. 1996)  (finding appellants failed to preserve
argument where objec- tion before district court did not include key
terms used in  appeal). Further, counsel's apparent acquiescence in




__________

n * The relevant portions of the transcript are appended at the end  of
this opinion.


the matter ("Your Honor, if I hear you correctly....") gives  no
indication that she remained dissatisfied with the result.


Counsel's twice-stated objection that the proposed jury  instruction
"is a reference to a specific fact" barely resembles  her present
argument, which is that the jury instruction  invaded the province of
the jury as factfinder by removing  from the jury's consideration a
fact that might have raised a  reasonable doubt about her guilt.
Insofar as that is her  objection, we hold that Ms. Breedlove did not
properly pre- serve it for appeal. We will therefore upset her
conviction  only if the instruction rises to the level of plain


The Supreme Court defined plain error in United States v.  Olano, 507
U.S. 725 (1993). First, of course, the district court  must have made
an error by "[d]eviati[ng] from a legal rule."  Id. at 732-33. Second,
the error must be one that should  have been "obvious" to the district
court. Id. at 734. Third,  the error must have "affect[ed] substantial
rights," that is,  "been prejudicial", "affected the outcome of the
district court  proceedings." Id. A court of appeals should correct
even a  plain error affecting substantial rights only if there would 
otherwise be a miscarriage of justice, as there would be if the 
defendant is actually innocent of the offense, or if the error  "
'seriously affect[s] the fairness, integrity, or public reputa- tion
of judicial proceedings.' " Id. at 736 (quoting United  States v.
Atkinson, 297 U.S. 157, 160 (1936)).


The evidence concerning Mr. Cloud's role in the August  1997
transaction was sparse. It included testimony by a  Navy Federal
Credit Union investigator who concluded that  Mr. Cloud had endorsed
the $1,206,000 check. The investiga- tor stated that he believed Mr.
Cloud had been in "cahoots"  with Ms. Breedlove in executing the check
scheme. Ms.  Breedlove did not submit any additional evidence linking
Mr.  Cloud to the August 1997 transaction or to any other act 
involving her. The district court prevented Ms. Breedlove  neither
from introducing further evidence about Mr. Cloud  nor from arguing to
the jury about such evidence as there  was linking Mr. Cloud to the
August 1997 transaction. The  district court merely aimed to preclude


ulating about Mr. Cloud absent any substantial evidence, in  the words
of trial counsel for Ms. Breedlove, "as to what Mr.  Cloud may or may
not have done." We see no error in the  district court's exercise of
caution; the instruction was not so  restrictive as to remove from the
jury any of its factfinding  authority. See Curley v. United States,
160 F.2d 229, 232  (D.C. Cir. 1947) ("functions of the jury include
... the  drawing of justifiable inferences of fact from proven
facts....  The jury may not be permitted to conjecture merely, or to 
conclude upon pure speculation").


Even had the district court erred as claimed, the over- whelming
evidence that Ms. Breedlove is guilty of the crime  charged would have
rendered the error harmless beyond a  reasonable doubt. Ms.
Breedlove's intent to commit the  crimes of which she stands convicted
is apparent from the  evidence. She opened a checking account at the
First Union  National Bank only days before she attempted to deposit
the  check for $998,688.65. When she opened the account she  asked
whether the bank offered tax-deferred or retirement  accounts into
which she might be able to deposit a half million  or a million
dollars, adding falsely that she was the owner of  several lucrative
businesses. The teller who assisted Ms.  Breedlove when she made the
deposit told her a "hold" would  be placed upon the check--that is,
she could not draw upon  the credit to her account until the bank had
collected good  funds for the check--because of its amount. Ms.
Breedlove  claims that she did not know the check had been altered,
but  it is difficult to conceive of a bank placing a hold on a check 
for $58.65 due to its amount; at the very least, Ms. Breed- love's
anticipation a few days earlier that she would be  depositing a large
sum, together with her ready acquiescence  in the delayed availability
of funds, suggests that she knew  the check she deposited was for a
significant amount, not for  $58.65. A reasonable juror could hardly
fail to conclude from  these facts that Ms. Breedlove intended to


B. The Sentence


When it calculated Ms. Breedlove's base offense level, the  district
court included not only the potential loss involved in  the offense
for which she was convicted but also the potential  losses from the
August 1997 and December 1997 transactions,  both of which the court
found were part of the "same course  of conduct" as the January 1998
transaction. See U.S. Sen- tencing Guidelines Manual s 1B1.3(a)(2) &
application note 9.  Upon appeal Ms. Breedlove argues that the August
1997  transaction was too remote in time and too different in 
character from the offenses of December 1997 and January  1998 to be
considered part of the same course of conduct.  We review for clear
error the district court's factual determi- nation to the contrary.
See United States v. Foster, 19 F.3d  1452, 1455 (D.C. Cir. 1994).


The Sentencing Guidelines list several factors for determin- ing
whether two or more offenses are part of the same course  of conduct,
including the similarity of the offenses, the regu- larity of the
offenses, and the time interval between the  offenses. See U.S.
Sentencing Guidelines Manual s 1B1.3  application note 9(B). If in a
particular case any one of these  factors is counter-indicative, then
the offenses should not be  deemed a single course of conduct unless
another of the  factors is particularly suggestive thereof. See id.


In United States v. Pinnick we upheld the district court's 
determination that a defendant's repeated use of counterfeit  checks
constituted a single course of conduct. The defendant  had used
different aliases in presenting the checks, and had  used the checks
to obtain different types of proceeds--cash in  two instances and an
automobile in another. The instruments  and the methods used by the
defendant were sufficiently  similar, however, to establish an "
'identifiable behavior pat- tern of specified criminal activity.' " 47
F.3d 434, 439 (D.C.  Cir. 1995) (quoting United States v. Perdomo, 927
F.2d 111,  115 (2d Cir. 1991)).


In this case the August 1997, December 1997, and January  1998
transactions share a common modus operandi. In each  transaction, Ms.
Breedlove presented an altered check for  deposit to a controlled
account (either hers or Mr. Cloud's) at 


a financial institution. Ms. Breedlove then sought to reach  the
proceeds of the fraud by drawing checks upon the ac- counts into which
she had deposited the altered checks-- except that Ms. Breedlove was
apprehended before she could  draw proceeds from the January 1998
transaction.


Ms. Breedlove points out that each offense involved a  different
depository institution, but that suggests to us only  that Ms.
Breedlove sought to reduce the risk of suspicion.  She also argues
that the August 1997 transaction is not  similar to the December 1997
and January 1998 transactions  because only the latter two involved
U.S. Treasury checks.  That distinction bears not at all upon whether
she used the  checks in a single course of conduct. More important,
each of  the checks was legitimately issued for a small amount, then 
altered for the purpose of obtaining a larger amount from an 
unwitting depository institution. As for the five months  between the
two transactions, the interval hardly seems  significant in view of
the similarity of the offenses. We  therefore conclude that the
district court did not err by  finding the August 1997 transaction was
part of the same  course of conduct as the December 1997 and January
1998  transactions for the purpose of calculating Ms. Breedlove's 


The district court also considered the August 1997 transac- tion in
enhancing Ms. Breedlove's sentence by two levels for  "more than
minimal planning," see U.S. Sentencing Guide- lines Manual s
2F1.1(b)(2), defined as "more planning than is  typical for commission
of the offense in a simple form." Id.  at s 1B1.1 application note
1(f). Such planning is deemed  present "in any case involving repeated
acts over a period of  time, unless it is clear that each instance was
purely oppor- tune." Id. Three repeated (non-opportunistic) acts are
gen- erally sufficient to support a finding of more than minimal 
planning. See United States v. Kim, 23 F.3d 513, 515 (D.C.  Cir.


Ms. Breedlove's argument that the district court improper- ly relied
upon the August 1997 transaction as evidence of  more than minimal
planning is but a corollary of her now- rejected argument that that
transaction was not relevant 


conduct for sentencing purposes. ("Absent the $1,206,000  Cloud check,
... with only two acts of relevant conduct  rather than three, the
two-point 'more than minimal planning'  enhancement for 'repeated
acts' ... no longer applies.") The  corollary fails with the
proposition from which it is derived.  We hold, therefore, that the
district court properly enhanced  Ms. Breedlove's sentence for more
than minimal planning.


C. Supervised Release Term


Ms. Breedlove argues, and the Government agrees, that the  district
court improperly sentenced her to a term of five years  of supervised
release on each of the two counts of which she  was convicted. The
conviction for uttering carries with it a  statutory maximum
imprisonment of 15 years, making it a  Class C felony. See 18 U.S.C.
ss 472, 3559(a)(3). As Ms.  Breedlove points out, the maximum
authorized term of super- vised release for a Class C felony is three
years. See 18  U.S.C. s 3583(b)(2). We therefore remand this case to
the  district court for the limited purpose of correcting this


III. Conclusion


For the foregoing reasons, we affirm Ms. Breedlove's con- viction. We
remand this case, however, so that the district  court may impose a
term of supervised release within the  statutory maximum.


So ordered.


APPENDIX


Ms. Jankowski: Your Honor, I have one other objection  and, Your Honor,
this may be my newness to this  jurisdiction, but there was no
testimony at all concerning  motive. And there is an instruction that
says that intent  and motive shouldn't be confused and something along
 the lines of if she acted with a good motive, that is not  supposed
to be taken into consideration.


I just don't see where that was an issue at all in this  case that
would even warrant an instruction. This is not  a case where Ms.
Breedlove testified that her children  were hungry and she desperately
needed the money, or  anything like that.... 


The Court: I see your point. The instruction is included,  however,
because I anticipate that there will be specula- tion on the part of
the jury as to what motivated her to  do what she did, particularly in
view of the fact that we  have this mysterious Mr. Cloud, whose
presence in this  case has never been explained. So I want to dissuade
 them from speculating about who Mr. Cloud was or what  his role may
have been.


Ms. Jankowski: Your Honor, I can see your concern,  however, I think
that the instruction--I don't believe  that the instruction really
addresses the possibility that  they may speculate about Mr. Cloud. It
kind of suggests  that personal advancement or financial gain are two
well- recognized motives. It kind of suggests a motive that  sometimes
someone might attempt an act for advance- ment or financial gain, and
that that is saying that is still  acceptable and that you can't
confuse motive with intent.


It doesn't really say to the jury--


The Court: Would you like me to leave out that para- graph, "personal
advancement and financial gain"? And  I think I may make some specific
reference to Mr. Cloud  and that they are not to speculate on what
part he may  have played, if any, in connection with these matters.


Ms. Jankowski: Your Honor, the only objection I have to  that is a
reference to a specific fact.


The Court: That's what they are going to do. I beg  your pardon?


Ms. Jankowski: That is a reference to a specific fact.


The Court: Well, I am also, in part, anticipating your  argument. I
expect that you will make reference to Mr.  Cloud, and I think maybe
in the context, they ought to be  told that they are not to speculate
on Mr. Cloud.


Ms. Jankowski: Certainly, Your Honor, if they are to  determine whether
or not Ms. Breedlove committed the  prior bad act of--they are
supposed to assume that she  committed that act and assume that she
had knowledge  of the check's alteration. I can certainly argue to the
 jury that it was a check that was made out to him, a  check that was
endorsed by him, and they can just as  likely assume that he--I don't
think that is an improper  argument to make to the jury. Your Honor,
she is being  accused of a prior bad act.


The Court: There is evidence in the case to implicate  your client in
the presentation of these fraudulent docu- ments. The bank photographs
alone may provide suffi- cient evidence for the jury's purposes, even
though the  witnesses themselves couldn't identify her.


Also, the fact that she was the one who apparently  endeavored to
profit by the funds. There is circumstan- tial evidence to point to
your client as the one who was, if  you will, the culpable party
insofar as these instruments  were concerned.


There is no evidence one way or another as to Mr.  Cloud, other than
the fact that his signature mysteriously  appears and his bank account
mysteriously was used.


Now, I am not suggesting that you are not permitted  to argue, but I
don't want the jury speculating, on the  basis of a total absence of
evidence, as to who he may be.


Ms. Jankowski: Your Honor, if I hear you correctly, I  can certainly
argue to the jury that Ms. Breedlove has  not been proven to have
committed this offense, but you 


are going to tell the jury that they cannot speculate as to  what Mr.
Cloud may or may not have done?


The Court: That's correct. That's the way I am going to  leave it.


Ms. Jankowski: If we can then somehow--


The Court: But I will take out that middle paragraph of  instruction
number 35 [regarding the distinction between  intent and motive] to
which you had an objection.


Ms. Jankowski: Your Honor, the only--


The Court: That does not preclude [the prosecution]  from arguing it,
however.


Ms. Jankowski: Certainly.


The Court: You want me to take that out?


Ms. Jankowski: Yes, Your Honor.