United States v. Gagandeep Saini ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50196
Plaintiff-Appellee,
D.C. No.
v. 2:17-cr-00185-
RHW-2
GAGANDEEP SAINI,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Robert H. Whaley, District Judge, Presiding
Argued and Submitted November 16, 2021
Pasadena, California
Filed January 24, 2022
Before: Jay S. Bybee and Mark J. Bennett, Circuit Judges,
and Joseph F. Bataillon, * District Judge.
Opinion by Judge Bennett
*
The Honorable Joseph F. Bataillon, United States District Judge
for the District of Nebraska, sitting by designation.
2 UNITED STATES V. SAINI
SUMMARY **
Criminal
The panel affirmed convictions for possession of device
making equipment (18 U.S.C. § 1029(a)(4)), possession of
at least fifteen 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), in a case in which the defendant argued 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.
The panel agreed with the defendant that “intent to
defraud” is an intent to deceive and cheat—an intent to
deprive the victim of money or property by deception. The
panel wrote that 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, and that
legislative history supports this interpretation.
Addressing the defendant’s argument about the
harmlessness standard stated in Neder v. United States, 527
U.S. 1 (1999), the panel rejected the defendant’s claim that
the omission of an element can be harmless only when the
defendant made no attempt to dispute the element. The
panel explained that whether the defendant contested the
omitted element is not determinative; harmless error inquiry
instead focuses on what the evidence showed regarding the
defendant’s intent to defraud and whether the court can
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SAINI 3
conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error. The panel
concluded that the instructional error was harmless, given
the overwhelming evidence that the defendant had the intent
to cheat his victims.
The panel rejected the defendant’s evidentiary
challenges as either meritless or unsupported.
COUNSEL
Jonathan D. Libby (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Charles E. Fowler Jr. (argued), Assistant United States
Attorney; Bram M. Alden, Chief, Criminal Appeals Section;
Tracy L. Wilkison, Acting United States Attorney; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
4 UNITED STATES V. SAINI
OPINION
BENNETT, Circuit Judge:
A jury convicted Gagandeep 1 Saini on four felony counts
related to credit card fraud, identity theft, and mail theft.
Saini challenges his convictions. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
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. But given the overwhelming evidence that Saini
had the intent to cheat his victims, the instructional error was
harmless. Saini’s remaining contentions are either meritless
or unsupported.
I. Background
The grand jury returned a four-count superseding
indictment that charged Saini with: Count 1, possession of
device making equipment (a credit card encoder) in violation
of 18 U.S.C. § 1029(a)(4); Count 2, possession of at least
fifteen unauthorized access devices in violation of 18 U.S.C.
§ 1029(a)(3); Count 3, aggravated identity theft in violation
of 18 U.S.C. § 1028A(a)(1), based on Saini’s unlawful
possession of a “California Driver’s License number
1
Saini’s first name has been misspelled in the caption throughout
this action. This is the correct spelling of his name.
UNITED STATES V. SAINI 5
belonging to [Ahmar Siddiqi], during and in relation to the
offense” charged in Count 2; and Count 4, possession of
stolen mail in violation of 18 U.S.C. § 1708. The
superseding indictment also charged Saini with aiding and
abetting Paulina Schaiy to commit all four offenses. Schaiy
had pleaded guilty to aggravated identity theft and agreed to
cooperate with the government.
The following is the relevant evidence presented at
Saini’s trial.
In December 2016, Burbank Police Detectives Dugas
and Starkov arrested Saini and Schaiy after finding
substantial evidence linking them to identity and mail theft.
The detectives testified about the events that led to the
arrests. While on patrol in an area known for criminal
activity, the detectives decided to approach two individuals
who had been sitting in a parked car in a hotel parking lot for
several hours. Saini, who was sitting in the driver’s seat, told
the detectives he did not have any identification, but gave his
name and answered some questions. Schaiy, who owned the
car, provided her identification. The detectives instructed
Saini to get out of the car, and as he did, a cut straw with a
burnt end (an item indicative of heroin use) fell from his lap
onto the ground. Detective Dugas then searched Saini and
found a driver’s license that belonged to Ahmar Siddiqi, a
credit card with Schaiy’s name, and a prepaid American
Express card. Saini said the license belonged to his
“cousin,” who had left it in the car. At trial, Siddiqi testified
that he did not know Saini or Schaiy, and that his license had
been mailed to him, but he never received it. The credit card
imprinted with Schaiy’s name had been reencoded with
someone else’s information.
The detectives found an encoder, a device that writes
information onto a credit card’s magnetic strip, inside the
6 UNITED STATES V. SAINI
car. The prosecution played recordings of Saini admitting to
Detective Starkov that the encoder belonged to him and
claiming he had used it to create gift cards for a company
called “Nothing Bundt Cakes.” A Nothing Bundt Cakes
representative testified that the company had never
contracted with Saini or Schaiy to create gift cards.
In the car, the detectives found a laptop bag, which
contained a laptop, prepaid debit cards, credit cards
imprinted with the names “Gagandeep S Saini” and “Gurmaj
K Saini” (Saini’s mother’s name), and blank white cards
with magnetic strips. They also found a duffel bag, which
contained other people’s mail, prepaid debit cards, a
notebook with “profiles” (people’s names and their personal
information) and a drawing of a postal arrow key (a key
postal carriers use to open mailboxes at apartment
complexes), and various forms of identification belonging to
other people. One of the cards found in the duffel bag had
been reencoded with the name “Siddiqi,” matching the name
of the driver’s license found in Saini’s pocket. The
detectives also found another notebook in the car that
concealed mail belonging to other people and had more
handwritten “profiles.”
The detectives searched Schaiy’s purse and found a debit
card with someone else’s name, a counterfeit postal arrow
key, and a cell phone. The cell phone contained photos of
credit cards with other people’s names, photos of driver’s
licenses belonging to different people, more “profiles,” and
text messages between Schaiy and Saini about mail and
identity theft. For example, one text message referred to
stealing mail: “[A]re you going mailboxing?” 2 Another text
2
Schaiy testified that “mailboxing” meant taking mail from the
white “U.S. Mail” bins, which are stored under mailboxes. Saini testified
UNITED STATES V. SAINI 7
message sent a link to “http://www.thehiddenwiki.net/buyi
ng-stolen-credit-cards-3/.”
Postal Inspector Rodriguez testified that her
investigation showed that some cards found in the car had
been reencoded, meaning the information encoded on the
magnetic strips was different from the information printed
on the face of the cards. Using account numbers found on
papers retrieved from the car, Inspector Rodriguez identified
the issuing banks for some accounts. She contacted the
banks and found that they had suffered about $13,000 in
losses related to the accounts. The banks provided
documents, confirming the losses, and those documents
were admitted at trial. Inspector Rodriguez also testified that
she had interviewed the account holders and determined that
they had been victims of identity theft.
The district court allowed Postal Inspector Shen to testify
as an expert, as the court had rejected Saini’s pretrial motion
to exclude his expert testimony. Inspector Shen testified
about the types of information that are useful to identity
thieves, and that thieves can get such information from
stolen mail and by buying it on the dark web. Once they
have the information, they can use it to bypass account
security questions to gain access to existing accounts,
request additional credit cards, and open new accounts.
Inspector Shen explained that banks usually suffer the
fraudulent charge losses, but sometimes the merchant or the
customer bears the loss. He testified about postal arrow
keys, explaining that they are used by mail carriers to access
mailboxes in apartment complexes but can be easily
that he had sent a message to Schaiy asking if she was “mailboxing”
because he knew that she went “mailboxing all the time” and stole other
people’s mail.
8 UNITED STATES V. SAINI
duplicated. Inspector Shen also described what an encoder
does and explained that identity thieves can use the device
to reencode cards with stolen information.
Schaiy, testifying for the government, said that she and
Saini had been storing all their belongings in Schaiy’s car at
the time of their arrests. She testified that Saini had used her
Amazon account to purchase the encoder found in the car
and had used the device to reencode prepaid gift cards.
Schaiy testified that she had reported to government agents
that both bags found in the car belonged to Saini, that Saini
had purchased the laptop using a fraudulent card, and that
the counterfeit postal arrow key found in Schaiy’s purse
belonged to Saini. She had seen Saini purchase stolen
account information online at least ten times, and some of
the mail found in the car had been stolen by Saini. Saini
once used a reencoded prepaid gift card to buy shoes for
Schaiy. She and Saini had also used stolen credit card
information to pay for hotel rooms. And on several
occasions, they had used stolen credit card information to
pay for hotel rooms that they then sold to other people for
cash at about half the actual cost of the rooms.
Saini’s main defense was that he was not involved in the
fraudulent scheme, that nothing in the car belonged to him,
and that Schaiy was lying. Saini testified. He said that
nothing in the car belonged to him. He said that Schaiy had
ordered the encoder on Amazon and that he did not recall
saying the encoder was his. But he admitted that he had lied
to the detective about making gift cards for Nothing Bundt
Cakes. Saini testified that Schaiy had stolen mail, reencoded
cards, and possessed the “profiles” and that he had nothing
to do with those activities. But he testified that there were
chat messages from him to another person in which he
offered to resell a hotel room at a discounted price for cash,
UNITED STATES V. SAINI 9
and that the person had paid him and Schaiy cash for the
room. He also admitted that he did not know Siddiqi and
that Siddiqi was not his cousin, but he explained that he
called Siddiqi his cousin because “[i]t’s a Middle Eastern
thing, Indian thing, you know. Brown people kind of refer
to each other as cousins.”
Saini had requested that the jury instruction on “intent to
defraud” under § 1029(a)(3) and (4) be modified to include
the underlined language: “An intent to defraud is an intent to
deceive or cheat and obtain something of value.” 3 In
rejecting Saini’s request, the court stated: “If you look at the
offense itself, it just says you have to have an intent to
defraud and then possession of something, so it doesn’t
include that you have to also intend to go get somebody’s
money.” Thus, the court instructed the jury that “[i]ntent to
defraud is an intent to deceive or cheat.”
The jury convicted Saini as charged, and the court
sentenced him to 36 months’ imprisonment. Saini timely
appeals only his convictions.
II. Standard of Review
We review “de novo whether a trial court’s jury
instructions correctly stated the elements of a crime.” United
States v. Miller, 953 F.3d 1095, 1101 (9th Cir. 2020). But
even if we find instructional error, we affirm the conviction
if the error was harmless beyond a reasonable doubt. See id.
at 1103.
3
The government has taken the position that, even though Saini’s
proposed instruction retained the disjunctive “deceive or cheat”
language, it was equivalent to this instruction: “An intent to defraud is
an intent to deceive and cheat.”
10 UNITED STATES V. SAINI
We review a district court’s evidentiary rulings under the
deferential abuse of discretion standard. United States v.
Hankey, 203 F.3d 1160, 1166–67 (9th Cir. 2000). Under that
standard, the admission of expert testimony “will be
reversed only if ‘manifestly erroneous.’” Id. at 1167(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)).
But “[w]e review evidentiary rulings to which no objection
was made for plain error.” United States v. Orm Hieng,
679 F.3d 1131, 1135 (9th Cir. 2012).
III. Discussion
A. Instructional Error
1. “Intent to Defraud” under § 1029(a)(3) and (4)
Whether “intent to defraud” under 18 U.S.C.
§ 1029(a)(3) and (4) requires the intent to “deceive or cheat”
or the intent to “deceive and cheat” is a question of first
impression. We hold that the plain and ordinary meaning of
the statute requires an intent to deceive and cheat, which
means the government must prove that the defendant had the
intent to deprive a victim of money or property by deception.
See Miller, 953 F.3d at 1103 (defining an “intent to deceive
and cheat” as an intent to “deprive the victim of money or
property by means of deception”).
We start, of course, with the statutory text. See United
States v. Pacheco, 977 F.3d 764, 767 (9th Cir. 2020).
Section 1029(a)(3) makes it a crime to “knowingly and with
intent to defraud possess[] fifteen or more devices which are
counterfeit or unauthorized access devices.” 18 U.S.C.
§ 1029(a)(3). Subsection (a)(4) makes it a crime to
“knowingly, and with intent to defraud, produce[], traffic[]
in, ha[ve] control or custody of, or possess[] device-making
equipment.” Id. § 1029(a)(4). Because the statute does not
UNITED STATES V. SAINI 11
define “intent to defraud,” we may refer to dictionary
definitions to help determine its plain meaning. See
Pacheco, 977 F.3d at 767. “The plain meaning of the text
controls unless it is ambiguous or leads to an absurd result.”
Id.
“Intent to defraud” means “an intention to deceive
another person, and to induce such other person, in reliance
upon such deception, to assume, create, transfer, alter or
terminate a right, obligation or power with reference to
property.” Intent to defraud, Black’s Law Dictionary 381
(5th ed. 1979); see also id. (“Defraud” means “[t]o deprive
a person of property or any interest . . . by fraud, deceit, or
artifice.”); Defraud, Webster’s New Collegiate Dictionary
298 (1977) (“[T]o deprive of something by deception or
fraud.”). 4 Based on these definitions, the ordinary meaning
of an “intent to defraud” as used in § 1029(a)(3) and (4) is
an intent to deprive a person of money or property by
deception.
Though our analysis begins and ends with the statutory
text because it is unambiguous and our interpretation does
not lead to any absurdity, 5 we note that legislative history
4
Subsections (a)(3) and (a)(4) of § 1029 were enacted as part of the
Comprehensive Crime Control Act of 1984. Pub. L. No. 98-473, Tit. II,
§ 1602(a), 98 Stat. 1837, 2183 (1984). We thus look to dictionaries in
use at that time. See Gollehon v. Mahoney, 626 F.3d 1019, 1023 (9th
Cir. 2010) (“To determine the plain meaning of a statute, we traditionally
refer to dictionaries in use at the time of the statute’s enactment.”).
5
There is nothing absurd about Congress targeting fraud that seeks
to deprive victims of money or property. Indeed, Congress has targeted
such harm in other statutes. See, e.g., Shaw v. United States, 137 S. Ct.
462, 469 (2016) (holding that bank fraud under 18 U.S.C. § 1344(1)
requires the intent to “deceive the bank and deprive it of something of
value”); United States v. Miller, 953 F.3d 1095, 1098–99 (9th Cir. 2020)
12 UNITED STATES V. SAINI
supports our interpretation. The relevant Senate Report
states: “‘With intent to defraud’ means that the offender has
a conscious objective, desire or purpose to ‘deceive another
person, and to induce such other person, in reliance upon
such deception, to assume, create, transfer, alter or terminate
a right, obligation or power with reference to property.’”
S. Rep. No. 98-368, at 6 (1984), as reprinted in 1984
U.S.C.C.A.N. 3647, 3652 (footnote omitted) (quoting
Black’s Law Dictionary 381 (5th ed. 1979)). The Senate
Report indicates that Congress intended to criminalize the
intent to deprive a person of money or property by deception,
not just the mere intent to deceive.
We are unpersuaded by the government’s
counterarguments. The government claims that Congress
would have expressly required an intent to cheat if it had so
intended. But this ignores that the ordinary meaning of
“intent to defraud” in fact includes an intent to cheat. The
government also claims that the history and purpose of the
statute show that Congress intended to criminalize only the
intent to deceive. But again, this argument ignores the
ordinary meaning of “intent to defraud.” And the
government points to nothing in the legislative history
suggesting that Congress intended to target those who intend
to deceive but do not intend to cheat victims out of money
or property. Indeed, the legislative history does not support
the government’s view, as it shows that Congress was
mainly concerned about the loss of money and property
caused by deception. See, e.g., S. Rep. No. 98-368, at 2
(1984), as reprinted in 1984 U.S.C.C.A.N. 3647, 3648
(holding that wire fraud under 18 U.S.C. § 1343 requires an intent to
deceive and cheat). And, in fact, it is logical (the opposite of absurd) that
Congress would target criminals whose wrongdoing results in their
pecuniary gain at the expense of defrauded victims.
UNITED STATES V. SAINI 13
(explaining that legislation is needed to target the staggering
and increasing financial losses from credit and debit card
fraud).
The government next points to case law. It argues that
our decision in Miller is distinguishable. Even were that so,
it would be irrelevant. In Miller, we held that the intent to
defraud under the wire fraud statute, 18 U.S.C. § 1343,
“requires the intent to deceive and cheat.” 953 F.3d at 1103.
But our holding today rests on the plain and ordinary
meaning of a different statute, one that Miller neither
considered nor discussed.
The government also claims that our decision would
conflict with the Eleventh Circuit. We disagree. First, the
government’s argument is based on United States v.
Eppolito, 701 F. App’x 805 (11th Cir. 2017) (per curiam),
an unpublished memorandum disposition. Second, contrary
to the government’s interpretation of Eppolito, the court
there did not hold that § 1029(a) does not require an intent
to obtain something of value. In Eppolito, the court
reviewed the alleged instructional error for plain error.
701 F. App’x at 807. Rather than reach the merits of the
defendant’s argument that § 1029(a)(3) always requires an
intent to deceive and cause another to suffer financial loss or
obtain something of value, the court held that regardless of
any error, it wasn’t plain. Id. at 807–08. Finally, our
interpretation of the statute aligns with precedential Eleventh
Circuit case law, which appears to require an intent to
deceive for the purpose of causing another to suffer financial
loss or obtaining something valuable. See United States v.
Klopf, 423 F.3d 1228, 1240 (11th Cir. 2005) (stating that
“[i]ntent to defraud [under § 1029(a)(2)] has often been
defined as the specific intent to deceive or cheat, for the
purpose of either causing some financial loss to another, or
14 UNITED STATES V. SAINI
bringing about some financial gain to one’s self” (quotation
marks omitted) (quoting United States v. Peden, 556 F.2d
278, 280 (5th Cir. 1977))).
The government also relies on the comment attached to
the Ninth Circuit Model Criminal Jury Instruction on intent
to defraud. The instruction reads: “An intent to defraud is
an intent to deceive [or] [and] cheat.” 9th Cir. Model Crim.
Jury Instr. 5.12 (2021), https://www.ce9.uscourts.gov/jury-
instructions/sites/default/files/WPD/Criminal_Instructions_
2021_9_0.pdf. The comment states, in relevant part: “[F]or
purposes of other statutes, such as conspiracy to defraud the
United States (18 U.S.C. § 371), intent to defraud only
requires intent to deceive, not to cheat.” Id. The comment,
however, does not discuss which formulation of the
instruction is appropriate for violations under the statute at
issue, § 1029(a), and more importantly, is only instructive at
best. See United States v. Tuan Ngoc Luong, 965 F.3d 973,
983 (9th Cir. 2020) (“Pattern jury instructions are not
authoritative legal pronouncements.”); see also Caveat, 9th
Cir. Model Crim. Jury Instr. iv (“The Ninth Circuit Court of
Appeals does not adopt these instructions as definitive.
Indeed, occasionally the correctness of a given instruction
may be the subject of a Ninth Circuit opinion.”).
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.
2. Harmless Error Analysis
The omission of an element from jury instructions is
subject to harmless error review. See United States v. Conti,
804 F.3d 977, 980 (9th Cir. 2015). “[W]here a reviewing
UNITED STATES V. SAINI 15
court concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the
same absent the error, the erroneous instruction is properly
found to be harmless.” Neder v. United States, 527 U.S. 1,
17 (1999).
a. Neder’s Harmlessness Standard
We must first address Saini’s argument about the
harmlessness standard under Neder. Neder stated that an
error is harmless “where a reviewing court concludes beyond
a reasonable doubt that the omitted element was uncontested
and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error.” Id. at 17(emphasis added). Focusing on the word “uncontested,”
Saini claims that this statement in Neder means that the
omission of an element can be harmless only when the
defendant made no attempt to dispute the element. 6 In other
words, Saini’s position is that “uncontested” should be given
its literal meaning. We note at the outset that this position
makes little logical sense, as whether an error causes harm
would not likely turn on whether the defendant protested or
interposed an objection. It would turn on the state of the
actual evidence.
Saini also cites no Ninth Circuit precedent adopting this
literal interpretation, and we have found none. Although we
have not squarely addressed the issue, Ninth Circuit cases
indicate that we do not apply “uncontested” literally, and we
so hold here. For example, in United States v. Gracidas-
6
Although Saini abandoned this claim during oral argument, Oral
Arg. at 4:02 4:23, https://www.ca9.uscourts.gov/media/video/?2021111
6/19-50196/, we nonetheless address the arguments in his brief.
16 UNITED STATES V. SAINI
Ulibarry, 231 F.3d 1188 (9th Cir. 2000), the defendant
contested the omitted element by arguing (but without
admitting any supporting evidence) that he lacked the
required specific intent because “he was asleep when the car
was driven to the port of entry.” Id. at 1197. Even though
the defendant technically contested the element, we found
the error harmless. Id. at 1197–98. Similarly, in United
States v. Cherer, 513 F.3d 1150 (9th Cir. 2008) (en banc),
we held that the instructional error was harmless even
though the defendant contested the omitted element by
arguing and pointing to evidence that he did not believe the
victim was under sixteen. Id. at 1156. 7
And other circuits have declined to read “uncontested”
literally. The Eleventh Circuit did so when it applied Neder
on remand from the Supreme Court in United States v.
Neder, 197 F.3d 1122 (11th Cir. 1999) (Neder II), cert.
denied, 530 U.S. 1261 (2000). In rejecting a literal
interpretation, the Eleventh Circuit reasoned:
Neder claims the Supreme Court held that the
failure to instruct on materiality can never be
harmless error unless the Government shows
both that Neder never contested materiality
and that the evidence overwhelmingly
supports the materiality of every charged
falsehood. However, the Supreme Court did
not hold that omission of an element can
7
Cherer also directly undermines Saini’s argument that the
harmless error analysis requires us to believe his evidence and draw all
reasonable inferences in his favor. See Cherer, 513 F.3d at 1155–56.
Given this, and because Saini cites no authority supporting his argument
that “uncontested” should be given its literal meaning, we reject Saini’s
argument that we must accept his evidence and draw all reasonable
inferences in his favor in conducting our harmless error review.
UNITED STATES V. SAINI 17
never be harmless error unless uncontested.
Indeed, the Supreme Court emphasized that
the correct focus of harmless-error analysis
is: “Is it clear beyond a reasonable doubt that
a rational jury would have found the
defendant guilty absent the error?” Stated
another way, the focus is whether “the jury
verdict would have been the same absent the
error” or “whether the record contains
evidence that could rationally lead to a
contrary finding with respect to
[materiality].” Thus, whether Neder
contested materiality may be considered but
is not the pivotal concern. Instead, what the
evidence showed regarding materiality is the
touchstone.
Id. at 1129 (alteration in original) (citations and footnote
omitted); see also id. at 1129 n.6 (“Considered in context,
the Supreme Court’s statement clearly does not mean that
omission of an element of an offense can never be harmless
error unless uncontested. The statement means only that the
fact materiality was not contested supports the conclusion
that the jury’s verdict would have been the same absent the
error.”).
The Third Circuit also recently rejected a literal
interpretation, though with less analysis:
The Supreme Court has upheld convictions
on harmless error review, for example, where
“the omitted element was uncontested and
supported by overwhelming evidence.” We
do not read “uncontested” literally to restrict
harmless error to cases where the defendant
18 UNITED STATES V. SAINI
made no attempt whatsoever to dispute the
element, but rather more generally to mean
the missing piece “is supported by
uncontroverted evidence.”
United States v. Boyd, 999 F.3d 171, 179 (3d Cir. 2021)
(citation omitted).
We find these parts of Neder II and Boyd persuasive.
They also align with our precedent issued after Neder, in
which we found harmless error even though the defendants
had technically contested the improperly omitted elements.
See Gracidas-Ulibarry, 231 F.3d 1188; Cherer, 513 F.3d
1150. Thus, whether Saini contested the omitted element is
not determinative. Our harmless error inquiry instead
focuses on what the evidence showed regarding Saini’s
intent to defraud and whether we can conclude beyond a
reasonable doubt “that the jury verdict would have been the
same absent the error.” Neder, 527 U.S. at 17.
b. Evidence Proving Saini’s Intent to Defraud
The evidence of Saini’s intent to defraud—to deprive his
victims of money or property by deception—was
overwhelming. There was abundant evidence that Saini had
control of or possessed the encoder and stolen account
information found inside the car. 8 And it was uncontested
that the stolen information had been used to make purchases,
8
Saini was sitting in the driver’s seat of the car. Schaiy testified that
Saini’s belongings were being stored in the car at the time of their arrests.
And extensive evidence tied Saini to the items in the car: he admitted the
encoder was his; credit cards found inside the laptop bag were imprinted
with Saini’s name and his mother’s name; and a card found inside the
duffel bag had been reencoded with the name Siddiqi, matching the name
on the stolen driver’s license found in Saini’s pocket.
UNITED STATES V. SAINI 19
causing about $13,000 in losses to banks and merchants.
This was strong evidence proving Saini’s intent to defraud.
See United States v. Rogers, 321 F.3d 1226, 1230 (9th Cir.
2003) (“It is settled law that intent to defraud may be
established by circumstantial evidence.”).
Saini’s intent to defraud could also be inferred from his
lie to the detective about why he possessed the encoder. See
Rogers, 321 F.3d at 1230 (inferring intent to defraud from
inconsistent statements and misrepresentations). Schaiy’s
testimony also showed that Saini intended to defraud his
victims. Schaiy testified that she and Saini had engaged in a
scheme in which they had used stolen credit card
information to pay for hotel rooms and then resold those
hotel rooms to people for cash at discounted rates. What’s
more, Saini’s own testimony corroborated his participation
in the scheme, as he admitted that he had resold a hotel room
to a person at a discounted price for cash. The scheme
itself—using other people’s money to pay for rooms—was
strong evidence of Saini’s intent to defraud. See United
States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per
curiam) (“[T]he scheme itself may be probative
circumstantial evidence of an intent to defraud.”). Given the
overwhelming evidence establishing Saini’s intent to cheat,
the jury verdict would have been the same absent the
instructional error.
Our conclusion is also supported by the jury’s verdict,
viewed in light of the record. In convicting Saini, the jury
found that Saini either had an intent to deceive or cheat.
Given the record, it is inconceivable that the jury could have
found that Saini had an intent to deceive but not cheat. 9 This
9
Saini has not argued that the jury could have found he had the intent
to cheat but not deceive. Even if he had, that argument would have failed
20 UNITED STATES V. SAINI
is so because the government’s evidence showed that the two
elements went hand in hand—the only objective of the
scheme was to deprive victims of money through deception.
Moreover, Saini advanced no theory on which the jury could
have found that he had an intent to deceive but not cheat. In
fact, his entire defense was that he was simply innocent and
none of the items in the car were his, despite the
overwhelming evidence to the contrary. 10 The jury rejected
the defense that none of the items in the car were his when it
found him guilty. And the jury could not have found that he
had the intent to deceive and that the items in the car were
his, without also finding that he had the intent to cheat. 11
In sum, the district court’s instruction on the intent to
defraud element was erroneous, as an intent to defraud under
§ 1029(a)(3) and (4) requires an intent to deceive and cheat.
But the error was harmless because, given the overwhelming
evidence proving Saini’s intent to defraud, we are confident
for the same reason it is inconceivable that the jury could have found he
had an intent to deceive but not cheat—the elements went hand in hand
based on the evidence.
10
Among the items in the car that Saini claimed weren’t his was the
laptop bag containing the credit cards imprinted with his own name and
his mother’s name, the prepaid debit cards, and the blank white cards
with magnetic strips.
11
We acknowledge Saini’s argument that, because he possessed
Siddiqi’s driver’s license and didn’t admit to using the license to obtain
anything of value, the jury could have found he had only an intent to
deceive. This argument, however, is implausible based on the record.
Saini never presented this argument to the jury. Further, his argument
ignores the overwhelming evidence showing his intent to cheat, and the
fact that the jury, having rejected his defense, was left with only one
reasonable conclusion to draw from such evidence—that Saini possessed
the stolen mail, encoder, “profiles,” and various cards, including ones
that had been reencoded, to cheat his victims.
UNITED STATES V. SAINI 21
beyond a reasonable doubt that the jury verdict would have
been the same absent the error.
B. Evidentiary Challenges
1. Inspector Shen’s Testimony
Saini challenges the district court’s admission of
Inspector Shen’s expert testimony. He argues that the
district court abused its discretion by determining that
Inspector Shen’s testimony was (1) proper under Federal
Rule of Evidence (“Rule”) 702(a) because it concerned
matters outside the common knowledge of the average
layperson; and (2) not unfairly prejudicial under Rule 403
because of his impressive resume and qualifications. 12
Inspector Shen’s testimony mainly focused on details
about how thieves obtain personal information and use such
information to commit fraud. For example, he explained that
thieves can easily obtain personal information on the dark
web and described how that information can then be used to
gain access to credit card accounts. The district court
reasonably concluded that these types of details would help
the jury, and thus the court properly admitted Inspector
Shen’s testimony under Rule 702(a). Indeed, that we have
12
Rule 702(a) provides: “A witness who is qualified as an expert . . .
may testify in the form of an opinion . . . if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue . . . .” Fed. R.
Evid. 702(a).
Rule 403 provides: “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
22 UNITED STATES V. SAINI
found similar modus operandi testimony to be the proper
subject of expert testimony further supports that the district
court did not abuse its discretion in admitting Inspector
Shen’s testimony. See, e.g., United States v. Alonso, 48 F.3d
1536, 1540 (9th Cir. 1995) (holding that law enforcement
testimony “discussing observations of people, counter-
surveillance and surveillance” was the proper subject of
expert testimony, as it concerned the “methods and
techniques” used in criminal activity); United States v.
Valencia-Amezcua, 278 F.3d 901, 909 (9th Cir. 2002) (“The
admissibility of this expert testimony [about large-scale
methamphetamine lab operations] is persuasively supported
by our several prior decisions endorsing the admission of
modus operandi testimony and in particular those suggesting
that drug traffickers generally do not entrust large quantities
of drugs to unknowing transporters.”).
Saini’s argument that Inspector Shen’s impressive
qualifications were unfairly prejudicial under Rule 403 is
also unavailing. The district court rejected this argument.
The district court’s determination was reasonable, as Saini
discusses no authority supporting that an expert’s impressive
qualifications alone can be unfairly prejudicial, and he cited
no such authority to the district court. In sum, Saini fails to
show that the district court abused its discretion in admitting
Inspector Shen’s testimony.
Saini also argues that the district court erred in admitting
Inspector Shen’s testimony because it was unnecessarily
cumulative under Rule 403. We review this argument for
plain error. 13 See Orm Hieng, 679 F.3d at 1135–36. Because
13
Saini does not refute the government’s argument that plain error
review applies. And the record shows that Saini failed to sufficiently
preserve the issue for appeal. Although Saini’s counsel briefly made the
UNITED STATES V. SAINI 23
Saini makes no attempt to show that he has satisfied the plain
error factors, his cumulative evidence argument under Rule
403 fails.
2. Other Government Officials’ Testimony
In a heading in his opening brief, Saini claims that the
district court erred by allowing other government officials to
give both expert and fact testimony. Saini, however,
presents no argument supporting this claim. We therefore
decline to address it. See United States v. Williamson,
439 F.3d 1125, 1138 (9th Cir. 2006) (“With no argument
presented, [the court] decline[s] to address the claim.”).
IV. Conclusion
“Intent to defraud” under § 1029(a)(3) and (4) requires
the intent to deceive and cheat, meaning the intent to deprive
the victim of money or property through deception. Thus,
the district court’s instruction defining an “intent to defraud”
as an intent to deceive or cheat was erroneous. But the error
was harmless because the evidence establishing Saini’s
intent to defraud was overwhelming. Saini’s evidentiary
cumulative evidence argument at the motion in limine hearing, the
district court did not address it or rule on it, and Saini failed to make a
contemporaneous objection at trial. See United States v. Archdale,
229 F.3d 861, 864 (9th Cir. 2000) (“Absent a thorough examination of
the objection raised in the motion in limine and an explicit and definitive
ruling by the district court that the evidence is admissible, a party does
not preserve the issue of admissibility for appeal absent a
contemporaneous objection.”).
24 UNITED STATES V. SAINI
challenges are also unavailing. We therefore affirm Saini’s
convictions.
AFFIRMED.