In United States v. Saini, --- F4th ---, No. 19-50196 (9th Cir. 2022), the Court affirmed convictions for possession of device making equipment (18 U.S.C. § 1029(a)(4)), and possession of at least fifteen unauthorized access devices (18 U.S.C. § 1029(a)(3)).
"Saini’s main argument is that the district court reversibly erred by instructing the jury that 'intent to defraud' under 18 U.S.C. § 1029(a)(3) and (4) means an intent to deceive or cheat. Saini claims that 'intent to defraud' is an intent to deceive and cheat—an intent to deprive the victim of money or property by deception. We agree. The plain and ordinary meaning of 'intent to defraud' under § 1029(a)(3) and (4) is the intent to deprive the victim of money or property by deception."
The Court, however, found the error harmless beyond a reasonable doubt. "In sum, the ordinary meaning of 'intent to defraud' under § 1029(a)(3) and (4) requires an intent to deceive and cheat. Legislative history supports our interpretation. The district court therefore gave an erroneous jury instruction. But, as discussed below, the error was harmless."
The Court also gave the helpful reminder that the 9th Cir. model instructions are "only instructive at best." They are not authoritative legal pronouncements.
