U.S. v. Goodchild
| Decision Date | 06 April 1994 |
| Docket Number | No. 94-1097,94-1097 |
| Citation | 25 F.3d 55 |
| Parties | 40 Fed. R. Evid. Serv. 1166 UNITED STATES, Appellee, v. Christian GOODCHILD, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Vincent J. D'Elia, Englewood, NJ, for defendant, appellant.
Jean B. Weld, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellees.
Before: SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.
Defendant-appellant, Christian Goodchild, was indicted on one count of using two unauthorized access devices, i.e., two Discover credit cards issued on two separate accounts, and obtaining goods and services within a one-year period with a value in excess of $1,000, with intent to defraud, in violation of 18 U.S.C. Sec. 1029(a)(2). 1
After a jury trial, defendant was found guilty. She was sentenced to eleven months incarceration, a three-year term of supervised release, and ordered to pay restitution of $10,090.52 to Discover Credit Card Services, Inc. This appeal followed.
We consider the following issues: 2 (1) whether the government proved each and every element of 18 U.S.C. Sec. 1029(a)(2) beyond a reasonable doubt; (2) whether the district court erred in admitting certain evidence; (3) whether defendant's conviction was due in part to the ineffective assistance of counsel; (4) whether the prosecutor's conduct warrants a reversal; and, (5) whether there was error in applying the sentencing guidelines.
Our standard of review is firmly established:
We assess the sufficiency of the evidence as a whole, including all reasonable inferences, in the light most favorable to the verdict, with a view to whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. We do not weigh witness credibility, but resolve all credibility issues in favor of the verdict. The evidence may be entirely circumstantial, and need not exclude every reasonable hypothesis of innocence, that is, the factfinder may decide among reasonable interpretations of the evidence.
United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991) (citations omitted). See also United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993); United States v. Argencourt, 996 F.2d 1300, 1303 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 731, 126 L.Ed.2d 694 (1994).
There are four essential elements of the crime for which defendant was convicted: (1) that the two Discover credit cards specified in the indictment were "access devices" within the meaning of 18 U.S.C. Sec. 1029(e); (2) that defendant used the credit cards without authorization during any one-year period and obtained anything of value aggregating $1,000 or more during the time period; (3) that defendant acted knowingly, willfully, and with intent to defraud; and (4) that defendant's actions affected interstate commerce. See United States v. Ryan, 894 F.2d 355, 356-57 (10th Cir.1990).
We now turn to the trial record. Defendant's father, Anthony Goodchild, died in an automobile accident on September 15, 1988. In January of 1988, Anthony Goodchild had applied for and received two Discover credit cards, limited solely to his use. His application About two months after her father's death, defendant rented the same post office box her father had rented--box 398. Defendant notified the postmistress that her mother, Anne, and her father could receive mail at the post office box. Defendant's mother and father had been divorced sometime prior to her father's death.
gave as his address P.O. Box 398, Bristol, New Hampshire. The 1988 credit cards expired in January 1990. Discover was not notified of Goodchild's death so it sent him two new cards, numbers 2620 and 2471, on January 8, 1990, to the same post office box address. The re-issue cards had the same restriction as the original ones--the sole use of Anthony Goodchild.
At the time the two re-issue credit cards were mailed to post office box 398, defendant was the only one using the box. On January 16, 1990, defendant called Discover, identified herself and asked that she be sent a card on her father's credit account. No mention was made of her father's death. Discover informed her that it could not do this unless she forwarded a power of attorney authorizing her use of the credit card accounts. Defendant proceeded to make purchases with the cards limited to her father's use.
Defendant used card number 2471 twenty-two times between January 16 and February 23, 1990, to obtain things or services of value aggregating $4,847.11. She used card number 2620 thirty-five times between January 15 and April 10, 1990, to obtain things or services of value aggregating $7,137.43. Defendant made two minimum monthly payments on card number 2620, $91.00 on March 3, 1990, and $104.00 on March 19, 1990. These were the only payments she made on either of the cards.
On February 5, 1990, Discover security personnel started an investigation of the use of card number 2471 because of transactions exceeding the charge limit. After receiving no answer at the phone number it had for Anthony Goodchild, Discover deactivated the card. On February 6 an attempted use of the card at Nutri-System in Laconia, New Hampshire, was blocked.
The card account was then assigned to Discover's collections department. It attempted to locate Anthony Goodchild. The phone listed on his credit card application, 603-744-6591, was called on April 23, 1990, and a woman informed the caller that Anthony Goodchild no longer lived at that address. It learned from Anthony's former boss that he had died "three to four years ago." Discover, on July 19, 1990, again called the number it had called previously. The caller was told by the same woman who had answered the phone on April 23, that she had had the phone number for a year, that she did not know Anthony Goodchild, and that a Goodchild lived in Alexandria, New Hampshire.
Discover found a telephone number for defendant in Alexandria, New Hampshire, 603-744-0157. The number was called on July 19, 1990, and a message left on the answering machine asking that the call be returned. A woman called back. After identifying herself as Christian Goodchild, she said a number of things. She told the Discover agent that Anthony Goodchild had died in an automobile accident on September 15, 1988, in Reading, Pennsylvania. She said that there was a "long story behind the account sales" in January and February, 1990. She went on to say that her parents were divorced four months before her father's death and that after he died "girlfriends started popping up" and her mother was heartbroken. She told Discover that the attorney had paid off "all credit accounts" through the estate, that the estate was closed, and because she had fired the attorney handling the estate for incompetence, there was no attorney to contact. Defendant also volunteered that her father's latest girlfriend, who was living with him at the time of his death, was "Arline," last name and present whereabouts unknown. After this phone call, the credit card accounts were referred to the fraud unit of Discover, and eventually were turned over to United States Postal Inspectors.
There was independent evidence linking defendant to the credit card transactions. An insurance adjuster, Terry Seger, went to defendant's home on June 14, 1991, to investigate Evidence was introduced showing that defendant was a regular customer of Nutri-System Weight Loss Centers in Concord, New Hampshire, in 1990. Purchases were made from Nutri-System on card number 2620 on February 12, February 26, and March 3, 1990, and one purchase on card number 2471 on February 1, 1990.
her burglary claim of a loss in excess of $70,000. Seger told defendant that he needed corroborating information of the value of the items stolen. Defendant submitted specific Discover card records of purchases on both cards totalling approximately $3,362.12. The records showed that these purchases were made in 1990. Defendant told Seger that she had lived in her father's house since a month after her father's death in 1988. She also told Seger that she owned the Discover credit cards jointly with her father.
Based on our review of the record, focussed as prescribed in the light most favorable to the verdict, we find that the prosecution proved all four elements of the crime charged beyond a reasonable doubt. There can be no doubt that the Discover credit cards were "access devices" within the meaning of the statute and defendant did not challenge the judge's charge to this effect. 3 Nor can any serious challenge be made to the evidence showing use of the credit cards by defendant. And it is clear that defendant's use of the credit cards affected interstate commerce. The one issue that requires further discussion is whether the government has proven intent to defraud.
Under 18 U.S.C. Sec. 1029(a)(3) the government must prove that a defendant "knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices...." Section 1029(e)(3) defines "unauthorized access device" as follows:
the term "unauthorized access device" means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud;
(Emphasis added.)
The district court charged the jury as follows:
The third element that the Government must prove beyond a reasonable doubt is that the defendant acted knowingly and with intent to defraud.
The Government must prove beyond a reasonable doubt:
(1) that Christian Goodchild obtained the Discover cards with intent to defraud, or that the credit cards were lost, stolen, expired, revoked or canceled; and
(2) that she knowingly and with intent to defraud used the credit cards.
(Emphasis added.)
The court also gave, at defendant's request, a "good faith" instruction:
Since an...
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