U.S. v. Goldblatt
| Citation | 813 F.2d 619 |
| Decision Date | 02 December 1986 |
| Docket Number | No. 86-1360,86-1360 |
| Parties | UNITED STATES of America, Appellee, v. GOLDBLATT, Lynn David, Appellant. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Gregory T. Magarity, Brian P. Flaherty, Wolff, Block, Schorr and Solis-Cohen, Philadelphia, Pa., for appellant.
Edward S.B. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Richard L. Scheff, Asst. U.S. Atty., Philadelphia, Pa., for appellee.
Before ALDISERT, Chief Judge, WEIS, Circuit Judge, and FISHER, judge. *
Appellant, Lynn David Goldblatt, appeals from a final judgment and order of the United States District Court for the Eastern District of Pennsylvania, for violation of 18 U.S.C. Secs. 1344 and 2113(b), bank fraud and bank larceny. Appellant presents three grounds for appeal. First, he alleges that the District Court erred in denying his motions for acquittal, made at the close of evidence and post trial. Second, he contends that the trial court's jury instructions on the elements of the crimes charged were inappropriate. Third, he asserts that the trial court committed reversible error by permitting the Assistant United States Attorney's instructions to the grand jury on the elements of the crimes to stand uncorrected.
On November 5, 1985, appellant, Lynn David Goldblatt, was arrested at his home for Social Security and Welfare fraud. Appellant's son, Lynn, Jr., entered his father's house shortly thereafter and obtained appellant's wallet, which contained two automated-teller machine (ATM) cards and user codes (personal identification numbers or "PIN's") for an account maintained by appellant at the Philadelphia Saving Fund Society (PSFS). The ATM cards were in the name of appellant and his mother, Ann Heinbock.
Between November 5 and 9, 1985, appellant's son used the ATM cards to withdraw $1,515 from appellant's account. Appellant was released on bail on November 5, 1985. On November 8, 1985, at approximately 10:50 P.M., appellant called the PSFS hotline to report the theft of his cards; the bank accordingly placed a hold on the account as of November 12, 1985. Appellant completed an "Assertion of Error Statement" on November 12, 1985, as required by PSFS in accordance with the Electronic Fund Transfer Act (15 U.S.C. Secs. 1693-1693r). On November 15, 1985, an ATM automatically seized one of the two ATM cards when appellant's son attempted to use it.
On November, 22, 1985, ten days after the Statement was filed, PSFS sent appellant a letter asking him to contact the bank regarding his claim. An interview was then scheduled at the bank for November 29, 1985. At this interview appellant was shown six photographs of a young male engaging in transactions at the machine, but claimed he could not identify the person. He continually requested access to his funds, but his requests were denied. He was informed, however, that if he signed an affidavit stating that the withdrawals were not made with his permission and he would assist in the criminal prosecution of the person who made unauthorized use of the funds, he would be granted access to his funds. Appellant signed the affidavit and subsequently had access to $1,415.00 of his account. 1 After he reported the loss to the police, he was able to withdraw $900.00 from his account on December 3, 1985. After receiving notification that his son had in fact used the cards, however, PSFS seized the remainder of appellant's account.
Goldblatt now argues that the district court improperly denied his motions for acquittal because the provisions of the Electronic Fund Transfer Act entitle him to the money deposited in his account, notwithstanding his own conduct.
In reviewing a denial of a motion for acquittal, this Court must review the sufficiency of the Government's evidence. "[T]he district court must determine whether the Government has adduced sufficient evidence respecting each element of the offense charged to permit jury consideration." United States v. Giampa, 758 F.2d 928, 934 (3d Cir.1985); Government of the Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir.1984).
In essence, Appellant argues that he was entitled to the money withdrawn by his son by virtue of Section 902 of the Electronic Funds Transfer Act. This section states in pertinent part:
(a) The Congress finds that the use of electronic systems to transfer funds provides the potential for substantial benefits to consumers. However, due to the unique charactertistics of such systems, the application of existing consumer protection legislation is unclear, leaving the rights and liabilities of consumers, financial institutions, and intermediaries in electronic fund transfers undefined.
(b) It is the purpose of this subchapter to provide a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer systems. The primary objective of this subchapter, however, is the provision of individual consumer rights.
Title 15 U.S.C. Sec. 1693.
Goldblatt contends that at the time he withdraw $900.00 from his account on December 3, 1985, he was the owner of the funds and was entitled to them unless it could be shown that the withdrawals made by Lynn, Jr. had been "authorized" by him within the meaning of the Electronic Fund Transfer Act (the "Act"). The Court finds this argument without merit. According to Lynn, Jr., his father had advised him in October, 1985, that if he, Lynn David Goldblatt, was arrested, Lynn, Jr. should take Goldblatt's credit cards and ATM cards and begin to remove money from the appellant's bank accounts in $200.00 increments (App. 234a, 235a-237a). Lynn, Jr. then changed his story and stated that he simply had stolen the cards from his father (App. 234a-237a, 240a). As appellee contends, even if appellant's argument can be interpreted as challenging the sufficiency of the evidence with regard to the intent element of the offense, appellant Goldblatt still is not entitled to relief because he obtained the money from PSFS under false pretenses. The money was in the care, custody, and control of PSFS during this time.
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100.00 belonging to, or in the care, custody, control, management, or possession of any bank ... or any savings and loan association, shall be [guilty of an offense against the United States].
Title 18 U.S.C. Sec. 2113(b).
Appellee argues that there is evidence sufficient to enable a jury to find that appellant lied when he failed to identify his son in the photographs shown to him by PSFS employees. Appellant contends, however, that any such deception cannot sustain a verdict of guilty unless his son's use of the card was authorized, because in the case of unauthorized use of the card the funds actually belong to appellant Goldblatt.
Appellee argues that the fraud theory supporting Count One of the Superseding Indictment did not rely on whether the withdrawals were authorized, but relied instead on the loss to PSFS resulting from appellant's conduct. PSFS claims that it was led to believe that the so-called "perpetrator of the unauthorized transactions" could not be identified. The Government cites United States v. Williams, 728 F.2d 1402, 1405 (11th Cir.1984); United States v. Melton, 689 F.2d 679, 684 (7th Cir.1982); and Freeman v. United States, 20 F.2d 748, 749 (3d Cir.1927) to support its contention that appellant Goldblatt must have known that failure to identify his son would result in a loss to PSFS. It can be inferred, therefore, that he engaged in a scheme to defraud PSFS through his false statements. Such a scheme to defraud the bank does not necessarily contemplate a result which benefits the appellant.
The evidence presented establishes that the bank had control and possession at the time of the transactions. The district court properly denied appellant's motions for judgment of acquittal.
Next, appellant contends that the district court erred in instructing the jury on the elements of the crimes with which appellant was charged and the applicability and meaning of the Electronic Fund Transfer Act.
An appellate court's function when reviewing jury instructions is to examine the entire charge to ascertain whether the district judge performed his duties properly. United States v. Garrett, 574 F.2d 778, 781-82 (3d Cir.1978), cert. denied, 436 U.S. 919, 98 S.Ct. 2265, 56 L.Ed.2d 759 (1978). It is well settled that a single jury instruction may not be evaluated in artificial isolation; rather, it must be evaluated in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). A trial which culminates in a judgment of conviction is the combined result of witnesses' testimony, counsels' arguments, entry of exhibits into evidence and the judge's instructions to the jury. Thus, "the process of instruction itself is but one of several components of the trial which may result in a judgment of conviction." Cupp, 414 U.S. at 147, 94 S.Ct. at 400 (1973). A district judge provides the jury with guidance, to enable it to draw the appropriate conclusions from the testimony. United States v. Garrett, 574 F.2d at 782. This duty is satisfied by a clear articulation of the relevant legal criteria. Id.; see also Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946). It is, however, within the sound discretion of the trial judge to determine the particular language to be employed when charging the jury. See United States v. Bailey, 451 F.2d 181, 183-84 (3d Cir.1971); Government of the Virgin Islands v. Rivera, 439 F.2d 1126 (3d Cir.1971).
Goldblatt takes issue with two...
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