23 F.4th 1155
9th Cir.2022Background
- Gagandeep Saini was convicted by a jury on four counts: possession of device-making equipment (18 U.S.C. § 1029(a)(4)), possession of ≥15 unauthorized access devices (18 U.S.C. § 1029(a)(3)), aggravated identity theft (18 U.S.C. § 1028A(a)(1)), and possession of stolen mail (18 U.S.C. § 1708); the indictment also charged aiding and abetting with co-defendant Paulina Schaiy.
- Police found in Schaiy’s car (where Saini sat): a credit-card encoder, reencoded cards, blank magnetic-strip cards, laptops, notebooks containing personal “profiles,” stolen mail, a counterfeit postal arrow key, and identification belonging to victims (including a driver’s license for Ahmar Siddiqi).
- Schaiy cooperated and testified that Saini purchased the encoder, used stolen account information to reencode cards, and participated in a scheme (e.g., buying hotel rooms with stolen cards and reselling rooms for cash); banks later reported about $13,000 in losses tied to accounts linked to items recovered.
- At trial Saini denied involvement (claimed items were Schaiy’s), admitted lying about one statement, and conceded selling one hotel room for cash; he requested a jury instruction defining “intent to defraud” to require obtaining something of value.
- The district court instructed that “intent to defraud is an intent to deceive or cheat.” Saini appealed, arguing the proper meaning is an intent to deceive and cheat (i.e., to deprive a victim of money or property by deception). The Ninth Circuit agreed with Saini’s statutory interpretation but held the instructional error was harmless beyond a reasonable doubt given overwhelming evidence of intent to cheat; other evidentiary challenges were rejected and convictions affirmed.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Saini) | Held |
|---|---|---|---|
| Meaning of “intent to defraud” in §1029(a)(3),(a)(4) | The court’s instruction (“deceive or cheat”) was adequate; intent to defraud need not be read to require intent to obtain money/property | "Intent to defraud" means intent to deceive and cheat—i.e., intent to deprive a victim of money or property by deception | Court: "intent to defraud" requires intent to deceive and cheat (intent to deprive of money/property by deception) |
| Whether instructional omission was harmless | Any error was harmless: evidence overwhelmingly showed intent to cheat/obtain value | Neder requires the omitted element be truly "uncontested"; because he contested intent, error was not harmless | Harmless beyond a reasonable doubt: evidence overwhelmingly proved intent to defraud; verdict would be same absent error |
| Admissibility of Inspector Shen’s expert testimony (Rule 702/403) | Testimony about how thieves obtain/use stolen data and encoders was proper expert help and probative | Testimony was improper, unfairly prejudicial, and cumulative | District court did not abuse discretion—testimony admissible under Rule 702; no unfair prejudice or preserved error shown |
| Admission of other government officials as expert/fact witnesses | N/A (government presented them) | Trial court erred by allowing officials to testify as experts and fact witnesses | Issue inadequately developed on appeal; court declined to address it (waived) |
Key Cases Cited
- United States v. Miller, 953 F.3d 1095 (9th Cir. 2020) (interpreting "intent to defraud" under wire fraud to require intent to deceive and cheat)
- United States v. Pacheco, 977 F.3d 764 (9th Cir. 2020) (use of contemporaneous dictionaries to determine statutory plain meaning)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error standard when an element is omitted from jury instructions)
- United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (harmless error may be found even when defendant technically contested the omitted element)
- United States v. Cherer, 513 F.3d 1150 (9th Cir. 2008) (en banc) (similar application of harmless-error review where defendant contested element)
- United States v. Rogers, 321 F.3d 1226 (9th Cir. 2003) (intent to defraud may be established by circumstantial evidence)
- United States v. Sullivan, 522 F.3d 967 (9th Cir. 2008) (scheme itself can be probative circumstantial evidence of intent)
- United States v. Klopf, 423 F.3d 1228 (11th Cir. 2005) (defining intent to defraud as intent to deceive or cheat to cause financial loss or gain)