                                                                           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                           NOT FOR PUBLICATION                              OCT 25 2012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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