FILED
NOT FOR PUBLICATION OCT 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30318
Plaintiff - Appellee, DC No. 2:10 cr-329 JLR
v.
MEMORANDUM *
ANH THI NGUYEN, aka Ahn Thi
Nguyen,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted October 11, 2012
Seattle, Washington
Before: KOZINSKI, Chief Judge, TASHIMA, and M. SMITH, Circuit Judges.
Defendant-Appellant Anh Nguyen appeals her jury conviction for three
counts of wire fraud in violation of 18 U.S.C. §§ 1342 and 1343, and nine counts
of fraud under the Supplemental Nutrition Assistance Program (SNAP), formerly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
known as the food stamp program, in violation of 7 U.S.C. § 2024(c) and 18
U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Nguyen’s conviction did not result from a constructive amendment to,
or fatal variance from, the original indictment. Consistent with the allegations in
the indictment, the proof at trial showed unequivocally that Nguyen met SNAP
beneficiaries outside of supermarkets, took their cards into the markets, and gave
them cash upon her return. Even if isolated allegations in the indictment were not
proven at trial, “[a]s long as the crime and the elements of the offense . . . are fully
and clearly set out in the indictment, the right to a grand jury is not normally
violated by the fact that the indictment alleges more crimes or other means of
committing the same crime.” United States v. Miller, 471 U.S. 130, 136 (1985).
2. The district court did not abuse its discretion in admitting the
testimony of a Program Specialist from the Department of Agriculture’s Food and
Nutrition Service. The expert did not testify to legal conclusions, but instead
provided permissible background on the regulatory framework. See Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1016-17 (9th Cir. 2004).
Moreover, any error in admitting this testimony was harmless in light of the
overwhelming evidence of guilt.
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3. The SNAP fraud regulations are not unconstitutionally vague as
applied to Nguyen. The applicable regulations provide that (1) “[p]rogram benefits
may be used only . . . to purchase eligible food for the household,” 7 C.F.R. §
274.7(a), and (2) food stamp benefits “may be accepted by an authorized retail
food store only from eligible households or the households’ authorized
representative, and only in exchange for eligible food. Coupons may not be
accepted in exchange for cash,” 7 C.F.R. § 278.2(a). As applied to Nguyen, these
regulations “provide a person of ordinary intelligence fair notice of what is
prohibited . . . .” United States v. Williams, 553 U.S. 285, 304 (2008).
Specifically, a person of ordinary intelligence would understand that paying
beneficiaries cash equal to half the face value of their SNAP benefits – without
providing any food to those beneficiaries – violates these regulations.
AFFIRMED.
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