United States v. Goldstein, Docket No. 04-1689-cr (2d Cir. March 29, 2006) (Walker, Hall, Gibson (by desig’n)): Goldstein raises a host of challenges to his conviction for credit card fraud and his 70-month sentence. Only a few are worth mention (and barely so).
First, Goldstein argues that the trial court erred in instructing the jury about his good faith as a defense. While the court properly told the jury that good faith is a complete defense to the fraud charges, Goldstein claims that this correct statement was undermined when the court “added language that improperly required the jury to find that Goldstein’s good faith was objectively reasonable.” Op. 6; see Cheek v. United States, 498 U.S. 192, 203 (1991) (good-faith belief, as a defense, need not be objectively reasonable). The problematic language is the highlighted portion of the following instruction: “If the defendant actually believed that he was authorized to use the access devices and took reasonable steps to check out that belief, then the defendant acted in good faith.” Op. 7 (emphasis in original). Because Goldstein failed to object below, unfortunately, appellate review was for plain error.
And the Circuit found no plain error. While acknowledging that Goldstein’s claim “has some appeal” and that the highlighted phrase “certainly evokes objectivity,” the Circuit concluded that he was not prejudiced by the likely error because “[t]aken as a whole, the charge appropriately interpreted the law of good faith.” Op. 9. Among other things, “the very next sentence of the instruction contains a specific directive that Goldstein had no burden to prove his good faith.” Op. 8. (How this statement undoes the damage of the erroneous one is unexplained). Additionally, “the jury was further instructed that it could not convict Goldstein . . . unless the government proved beyond a reasonable doubt that [his] conduct was calculated to deceive and that he intended to cause loss through his conduct.” Op. 9-10.
Second, Goldstein claims that the court erred in not instructing the jury that it had to agree unanimously as to which access devices (i.e., credit cards) he used “to obtain anything of value aggregating at least $1,000.” Op. 9. The statute of conviction, 18 U.S.C. § 1029(a)(2), criminalizes the fraudulent use of “one or more” access devices “during any one-year period” to obtain “anything of value aggregating $1,000 or more.”
This raises a question of first impression in the Circuit. However, the First Circuit rejected a similar challenge in 2003, and the Second follows that decision here. There is no error, the Court held, because “the identity of the particular credit cards is not an element of the offense but instead is a fact used to prove an element. The statute’s focus is on the amount of money people have lost through fraud rather than the number of people who have been defrauded.” Op. 9. The identity of the credit cards is “merely a fact used to prove an element” and not an element in itself. Op. 10. Unanimity as to the identity of the cards is therefore not required.
There is also a Crawford challenge to the introduction of certain documentary evidence concerning complaints by customers of Goldstein’s enterprise to their credit card companies, but the opinion does not provide enough information to evaluate the validity of the Court’s conclusion that there was no Sixth Amendment problem because “the evidence at issue was not ‘testimonial'” and in any event was not offered for its truth. Op. 15-16. (Sound familiar?)