United States v. Goldreich , 712 F. App'x 102 ( 2018 )

16-2597-cr
United States v. Goldreich
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “Summary Order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
28th day of February, two thousand and eighteen.
Present:
BARRINGTON D. PARKER,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. 16-2597-cr
ISRAEL GOLDREICH, ALSO KNOWN AS “IZZY GOLDREICH”
Defendant-Appellant.
For Appellee: IAN C. RICHARDSON, Assistant United States Attorney (Emily
Berger, Assistant United States Attorney, on the brief), for Richard
P. Donoghue, United States Attorney for the Eastern District of
New York, Brooklyn, New York.
For Appellant: JANE S. MEYERS, Law Office of Jane S. Meyers, Brooklyn, New
York.
________________________________________________
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Israel Goldreich (“Goldreich”) appeals his conviction, following a
jury trial, on one count of conversion of money of the United States in violation of 18
U.S.C. § 641. Goldreich argues: (1) the Government’s evidence was insufficient to prove that
the United States actually owned the money at the time Goldreich converted it; and (2) the
district court’s response to a jury question during deliberation was inadequate and thus in error.
We assume the parties’ familiarity with the underlying facts, the procedural history, the district
court’s rulings, and the arguments presented on appeal.
I. Sufficiency of Evidence Challenge
We review de novo a ruling on a Rule 29 sufficiency of the evidence challenge. United
States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010). This Court will uphold a conviction
when, “after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United States v.
Robinson, 702 F.3d 22, 34–35 (2d Cir. 2012).
Goldreich’s argument that there was insufficient evidence to convict him because the
money in question did not belong to the United States when he converted it is unpersuasive. The
Government introduced sufficient evidence to support the verdict. Here, if Goldreich was to
uphold his agreement with the undercover FBI agent, the money in question—which the
undercover agent told Goldreich was the proceeds of the sale of fraudulent stock certificates—
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was merely to pass through Goldreich’s account and then transfer back to the undercover agent
within a day or two. The record shows communications between the undercover agent and
Goldreich that demonstrate this arrangement was the clear understanding between them. The
record further contains bank records that prove the funds belonged to the United States. In his
videotaped interview, Goldreich even admitted his intention to “return those funds,” thus
indicating he did not have superior title to it.
II. Jury Instruction Challenge
Goldreich argues for the first time on appeal that the district court’s instruction in
response to a question asked of it by the jury during deliberation was confusing and therefore
erroneous, and as a result we should thus reverse the conviction.
When a party does not raise a challenge to a jury instruction below, we review for plain
error. United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013); Fed. R. Crim. P. 30(d), 52(b).1
“A jury instruction is erroneous if it either fails adequately to inform the jury of the law or
misleads the jury as to the correct legal standard.” United States v. George, 779 F.3d 113, 117
(2d Cir. 2005).
The jury asked the court for the following clarification: “We would like clarification of
the third point of the charge. Does it need to be proven that the property belonged to the U.S.
1
“[E]ven if appellants state distinctly the matter to which they object and the grounds for their
objection, this does not suffice to preserve an objection for appeal absent plain error, if the
grounds stated at trial are different from those raised on appeal.” United States v. James, 998
F.2d 74, 78 (2d Cir. 1993). In order to preserve an objection to a jury instruction, a party “must
direct the trial court’s attention to the contention that is to be raised on appeal.” United States v.
Masotto, 73 F.3d 1233, 1237 (2d Cir. 1996) (internal quotation marks omitted). On appeal here,
Goldreich argues not that the district court’s response to the jury’s question was legally
inaccurate, but that it was confusing to the jury. If this objection were properly preserved, our
review would be for harmless error. United States v. Botti, 711 F.3d 299, 308 (2d Cir. 2013).
Given that the district court’s response was legally accurate and responded to the jury’s inquiry
in a reasoned manner, we find no error.
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Government for this point?” After due consideration and consulting with the parties, the district
court referred the jury to its original instruction as a whole, which was a correct statement of the
law. See United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (noting that, on review,
courts consider jury instructions “as a whole”). We find no error in the district court’s response,2
and certainly no plain error.
We have considered Goldreich’s remaining arguments on appeal and find them to be
without merit. We AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
Section 641 of Title 18 of the United States Code, under which Goldreich was convicted,
requires a defendant to “knowingly convert[] . . . [a] thing of value of the United States.” We
have explicitly held that conviction under that statute does not require the defendant to know to
whom the property belongs. United States v. Jermendy, 544 F.2d 640, 641 (2d Cir. 1976). The
record indicates the district court interpreted this statute correctly and likewise instructed the jury
consistent with that interpretation.
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