United States of America v. CINDY OMIDI, AKA Nahid Omidi, AKA Cindy Pezeshk, AKA Nahid Pezeshk

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CINDY OMIDI, AKA Nahid Omidi, AKA
Cindy Pezeshk, AKA Nahid Pezeshk,
Defendant-Appellant.
Nos. 15-50376
15-50537
D.C. No.
2:13-cr-00739-SVW-1
MEMORANDUM*
Appeals from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 5, 2018
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and MAHAN,** District Judge.
Cindy Omidi (“Omidi”) appeals from her conviction for one count of
structuring in violation of 31 U.S.C. § 5324(a)(3), (d)(2), and 18 U.S.C. § 2.
Omidi also appeals from the $290,800 money judgment entered against her.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
FILED
MAR 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Because the parties are familiar with the facts, we do not recount them here. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The indictment was not constructively amended. The indictment
listed the specific transactions Omidi was charged with structuring, and the
government’s evidence at trial established that Omidi had structured those, and
only those, transactions. See United States v. Hui Hsiung, 778 F.3d 738, 757–58
(9th Cir. 2015) (holding no constructive amendment where the indictment
contained facts that “necessarily supported” and “gave fair notice” of the contents
of the jury instruction); United States v. Olson, 925 F.2d 1170, 1174–75 (9th Cir.
1991) (holding no constructive amendment where the government “did not try to
prove” that the defendant engaged in the uncharged conduct), abrogated in part on
other grounds by United States v. Cotton, 535 U.S. 625, 630 (2002).
2. Substantial evidence supported Omidi’s conviction. The government
offered proof that Omidi purchased over 300 money orders between July 2008 and
December 2009 at numerous postal offices, often on consecutive days, in amounts
just under the $3,000 threshold that would have triggered the Bank Secrecy Act’s
reporting requirements. See 31 C.F.R. § 1010.415. Although Omidi presses her
theory of the case, we “may not usurp the role of the [jury] by considering how it
would have resolved the conflicts, made the inferences, or considered the evidence
at trial.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

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3. We decline to reverse based on cumulative error. Assuming error for
all of Omidi’s claims that we review for plain error—the summary chart’s
admission, the improper jury instruction, the absence of an attempt instruction, the
sustaining of hearsay objections, and the instruction permitting the jury to convict
upon “agreeing on a purchase or group of purchases”—we find it unlikely that any
of those alleged errors “affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). We also find that the district
court did not abuse its discretion by instructing the jury on aiding and abetting.
Because sufficient evidence supports Omidi’s structuring conviction, we reject her
argument that there was insufficient evidence of specific intent to permit her
conviction for aiding and abetting the same. See 31 U.S.C. § 5324(a) (prohibiting
the structuring of transactions “for the purpose of evading” the Bank Secrecy Act’s
reporting requirements); see also United States v. Pang, 362 F.3d 1187, 1193–94
(9th Cir. 2004). And when we consider all of these claimed errors at once, we
conclude that their cumulative effect “is also harmless because it is more probable
than not that, taken together, they did not materially affect the verdict.” United
States v. Fernandez, 388 F.3d 1199, 1257 (9th Cir. 2004).
4. We affirm the money judgment entered by the district court. Section
5317 of Title 31, the forfeiture statute for structuring convictions, incorporates the
procedures established in 21 U.S.C. § 853. 31 U.S.C. § 5317(c)(1)(B)

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(“Forfeitures under this paragraph shall be governed by the procedures established
in section 413 of the Controlled Substances Act [21 U.S.C. § 853].”). “Section
853(p) provides a procedure for the forfeiture of substitute property,” United
States v. Lo, 839 F.3d 777, 790 (9th Cir. 2016) (emphasis added), cert. denied, 138
S. Ct. 354 (2017), and “mandates imposition of a money judgment on substitute
property,” United States v. Casey, 444 F.3d 1071, 1077 (9th Cir. 2006). Relying
on § 853(p), the district court properly entered the money judgment against Omidi
as a substitute for the money orders involved in her offense.
AFFIRMED.

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