Petition for Writ of Certiorari — Ahmed v. United States (No. 06-1516)

Supreme Court, U.S.

) ae v' urt U.S

: 061516 MAY 14 2007

No.

OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

SADEQ NAJI AHMED,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

i)

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL SKINNER

LAW OFFICES OF

MICHAEL B. SKINNER

27 East Flint Street

Lake Orion, Michigan 48362-3222

Telephone (248) 693-4100

mskinner@mskinner.com

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL. COLLECT (402) 842-2831

QUESTION PRESENTED

Whether this Court should resolve a split among the

Circuit Courts of Appeals regarding the interpretation of

18 U.S.C. § 1001 and the test for determining whether a

question is ambiguous such that a defendant cannot be

convicted for making a false statement in answer to the

question.

TABLE OF CONTENTS :

Page

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Relevant Statutes and Constitutional Provisions......... 1

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Reasons for Granting the Petition................ccccseseesseeeees 7

This Court should resolve a split among the Circuit

Courts of Appeals regarding the interpretation of

18 U.S.C. § 1001 and the test for determining

whether a question is ambiguous such that a de-

fendant cannot be convicted for making a false

statement in answer to the question....................60005 7

ill

TABLE OF AUTHORITIES

Page

CASES

Bronston v. United States, 409 U.S. 352, 93 S. Ct.

SA Le Me OO CRIED inascascsinsasisncsesinenecsstrearsencess 8,9

United States v. Camper, 384 F.3d 1073 (9th Cir.

Sa dciscsacinstnscidicseicaesaiihahschviaaneseabinss ioucaiassaibeadiibadelecBanaiamtiek 10, 11, 12

United States v. Culliton, 328 F.3d 1074 (9th Cir.

_—__| IERIE RNR er reta eter aera ean Np a A CERO ll

United States v. Damrah, 412 F.3d 618 (6th Cir

IIE ik csacieiosg staple ghiesieeh dee edema aahiaed Mdinibagaaieecdastaiseanheanean 10

United States v. Gahagan, 881 F.2d 1380 (6th Cir

i iiatininraiisinn ids hochastaata dips naiabaiaieLbatiaiecslésaeidadcaksaiiiancens 8

United States v. Good, 326 F.3d 589 (4th Cir. 2003) ......... 11

United States v. Race, 632 F.2d 1014 (4th Cir. 1980)....... 12

United States v. Ryan, 828 F.2d 1010 (3d Cir. 1987)........ 10

STATUTES AND CONSTITUTIONAL PROVISIONS

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OPINIONS BELOW

The opinion of the Sixth Circuit Court of Appeals

affirming petitioner’s conviction dated December 29, 2006,

can be found at 472 F.3d 427. (App. 1).

ie)

JURISDICTION

The Sixth Circuit Court of Appeals opinion was filed

on December 29, 2006. Justice Stevens granted an exten-

sion to file this petition until May 14, 2007. The jurisdic-

tion of the Court is invoked under 28 U.S.C. § 1254.

>

RELEVANT STATUTES AND

CONSTITUTIONAL PROVISIONS

18 U.S.C. § 1001

(a) Except as otherwise provided in this section,

whoever, in any matter within the jurisdiction of

the executive, legislative, or judicial branch of

the Government of the United States, knowingly

and willfully —

(1) falsifies, conceals, or covers up by any

trick, scheme, or device a material fact;

(2) makes any materially false, fictitious,

or fraudulent statement or representation;

or

(3) makes or uses any false writing or

document knowing the same to contain any

materially false, fictitious, or fraudulent

statement or entry;

shall be fined under this title, imprisoned not

more than 5 years or, if the offense involves in-

ternational or domestic terrorism (as defined in

section 2331), imprisoned not more than 8 years,

or both.

(b) Subsection (a) does not apply to a party toa

judicial proceeding, or that party’s counsel, for

statements, representations, writings or docu-

ments submitted by such party or counsel to a

judge or magistrate in that proceeding.

(c) With respect to any matter within the juris-

diction of the legislative branch, subsection (a)

shall apply only to —

(1) administrative matters, including a

claim for payment, a matter related to the

procurement of property or services, person-

nel or employment practices, or support ser-

vices, or a document required by law, rule,

or regulation to be submitted to the Con-

gress or any office or officer within the legis-

lative branch; or

(2) any investigation or review, conducted

pursuant to the authority of any committee,

subcommittee, commission or office of the

Congress, consistent with applicable rules of

the House or Senate.

¢

STATEMENT OF THE CASE

On May 19, 2005, Petitioner, Sadeq Ahmed, was

convicted by a jury in the United States District Court for

the Eastern District of Michigan of two counts of making

false statements in violation of 18 U.S.C. § 1001(a)(2).

On December 3, 1997, Ahmed enlisted in the United

States Air Force for a four year term to be a fighter pilot.

He received a security clearance and until his discharge on

September 28, 2001, was the top junior enlisted troop at

Eglin Air Force Base. His final discharge, effective Sep-

tember 28, 2001, was honorable. At no time did the United

States Air Force seek a dishonorable discharge and, in

fact, Ahmed could re-enlist without any restrictions. His

discharge was subject to recall with no administrative

disciplinary action.

While working as an airman at Eglin, Ahmed spoke to

people around him about his feelings concerning the

bombing and the killing of innocent women and children

in his homeland. In November 1999, he allegedly stated to

Sgt. Roswell that Osama bin Laden was his hero. At that

time Sgt. Roswell also saw on Ahmed’s computer an

alleged picture of Osama bin Laden. Despite this, Ahmed

was promoted to senior airman and he was given no

reprimand. In March 2001, Ahmed also allegedly stated to

a command officer that every aircraft “that flies over Iraq

should crash.” Again he said innocent civilians, women,

and children were being killed and that was his concern.

Finally, while the September 11th invasion was occurring,

before anyone knew that Osama bin Laden was behind the

attack, Ahmed made statements that the military maneu-

ver was “brilliant.”

Ahmed’s original enlistment was for four years which

would have terminated in December 2001. Prior to the

attack on September 11, 2001, Ahmed had put in a request

for a discharge that would have allowed him to be dis-

charged in October or November of 2001. However, as a

result of his alleged statements, on September 17, 2001,

Ahmed was asked to report before the command officer,

4

Colone] Seroka. On September 17, 2001, after invoking his

Fifth Amendment privilege not to say anything, he was

removed from the 33rd Fighter Wing pending his honor-

able discharge ten days later on September 28, 2001. He

was restricted to his quarters until his discharge on

September 28, 2001. The government did not seek a

dishonorable discharge nor did his commanding officer.

Seroka said the circumstances required nothing but an

honorable discharge. Seroka testified that he did not have

the authority to suspend Ahmed’s security clearance.

Immediately after Ahmed’s honorable discharge, he

began to work for a private company that cleared passen-

gers boarding airplanes at Detroit Metropolitan Airport.

Subsequently, the Transportation Security Administration

requested that Ahmed make a new application. The

purpose of the application was to ensure that the TSA

workforce, employees, and contractors would have ade-

quate background investigation so they could determine

suitability and clearance eligibility. Ahmed was required to

fill out a questionnaire for public trust positions.

On July 22, 2004, Ahmed was indicted in a two-count

Indictment charging him with violation of 18 U.S.C.

§ 1001(a)(2) for answers he gave to two questions in the

application. Count One stated as follows:

On or about October 3, 2002, in the Eastern

District of Michigan, Southern Division, Sadeq

Naji Ahmed did knowingly and willfully make

falsc, fictitious, and fraudulent material state-

ments and representations in a matter within

the jurisdiction of Office of Personnel Manage-

ment, an agency of the executive branch of the

government of the United States, in that in

the Questionnaire For Public Trust Positions

(Equivalent Standard Form 8SP) that the defen-

dant submitted in conjunction with employment

as a Transportation Security Administration

Screener at Detroit Metropolitan Airport, in re-

sponse to question 12, Your Employment

Record, Sadeq Naji Ahmed stated that he

had not left a job under unfavorable cir-

cumstances, when in fact, as the defendant

then well knew, he left his employment with

the United States Department of the Air

Force on September 28, 2001 under unfa-

vorable circumstances, which included the

following...

The actual question twelve, as indicted in Count One,

stated as follows:

Has any of the following happened to you in the

last seven years? If “Yes,” begin with the most re-

cent occurrence and go backward, providing date

fired, quit, or left and other information re-

quested.

Use the following codes and explain the reason

your employment was ended:

1. Fired from job

2. Quit a job after being told you'd be fired

3. Left a job by mutual agreement following al-

legations of misconduct

4. Left a job by mutual agreement following al-

legations of unsatisfactory performance

5. Left a job for other reasons under unfavor-

_able circumstances

6

Count Two of the Indictment charged Ahmed as

follows:

THE GRAND JURY FURTHER CHARGES

THAT:

On or about October 3, 2002, in the Eastern Dis-

trict of Michigan, Southern Division, Sadeq Naji

Ahmed did knowingly and willfully make false,

fictitious, and fraudulent material statements

and representations in a matter within the juris- -

diction of the Office of Personnel Management,

an agency of the executive branch of the govern-

ment of the United States, in that the Question-

naire For Public Trust Positions (Equivalent

Standard Form 85P) that the defendant submit-

ted in conjunction with employment as a Trans-

portation Security Administration Screener at

Detroit Metropolitan Airport, in response to

question 18(b), Your Investigations Record,

Sadeq Naji Ahmed stated that he had not

had a security clearance or access authori-

zation denied, suspended, or revoked, when

in fact, as the defendant then well knew, his

security clearance and access to classified

information had been suspended on Sep-

tember 17, 2001 by the U.S. Department of

the Air Force at Eglin Air Force Base in

Florida...

The actual question 18(b), as indicted in Count 2,

reads as follows:

To your knowledge, have you ever had clearance

or access authorization denied, suspended, or re-

voked, or have you ever been debarred from gov-

ernment employment? If “yes,” give date of action

and agency. Note: An administrative downgrade

or termination of security clearance is not revo-

cation.

At trial and on appeal, Ahmed argued that his an-

swers were literally true and that the questions were

ambiguous such that the Indictment should have been

dismissed. The trial court disagreed, the Sixth Circuit

affirmed Ahmed’s convictions and Ahmed now petitions

this Court for a writ oy certiorari.

>

REASONS FOR GRANTING THE PETITION

This Court should resolve a split among the Circuit

Courts of Appeals regarding the interpretation of 18

U.S.C. § 1001 and the test for determining whether a

question is ambiguous such that a defendant cannot

be convicted for making a false statement in answer

to the question.

In both the trial court and the Sixth Circuit Court of

Appeals, Ahmed argued that the Indictment was insuffi-

cient because his statements were literally true and that

the questions posed to Ahmed were so ambiguous that the

Indictment failed to charge an offense.

Count One of the Indictment charged Ahmed with

knowingly and intentionally making a false statement

“that he had not left a job under unfavorable circum-

stances, when in fact the defendant well knew, that he left

his employment with the United States Department of the

Air Force on September 28, 2001, under unfavorable

~ circumstances.” Count One, paragraph (g) of the Indict-

ment also stated that Ahmed was honorably discharged

from the Air Force. Therefore, Ahmed argued that the

answer to question twelve was literally true and Ahmed,

having been honorably discharged from the Air Force, did

not leave his employment under unfavorable circum-

stances.

In Count Two of the Indictment, Ahmed was alleged to

have stated that he had not had a security clearance or

access authorization denied, suspended, or revoked when,

in fact, Ahmed well knew his security clearance and access

to classified information had been suspended on Septem-

ber 17, 2001, by the Air Force.

Ahmed argued that he in fact answered this question

with a literally true answer because the note to the ques-

tion stated that “[aJn administrative downgrade or termi-

nation of security clearance is not revocation.” Because

Colonel Seroka testified that he was not authorized to

suspend Ahmed’s security clearance, Ahmed relied on a

reasonable interpretation of the question that rendered his

statement literally true.

There is a consensus in federal law that a prosecution

for making a false statement cannot be sustained for a

statement that is, on its face, literally true. See United

States v. Gahagan, 881 F.2d 1380, 1383 (6th Cir. 1989). In

Gahagan, for example, the defendant’s conviction for his

denial of ownership of a vehicle was reversed because “on

its face it was not a false representation given the trans-

ferred title to the vehicle prior to the certification.” Jd. at

987. In Bronston v. United States, 409 U.S. 352, 93 S. Ct.

595, 34 L.Ed.2d 568 (1973), this Court held that the

general federal perjury statute did not reach a witness’s

literally true but unresponsive answer, even if the witness

intended to mislead his questioner by the answer and even

if the answer is arguably “false by negative implication.”

Id. at 357-360.

9

The holding in Bronston has been used by the lower

courts to permit a literal truth defense to a false state-

ments charge. Directly related to the literal truth defense

is the defense that the question was ambiguous. A defen-

dant might argue that his statement was literally true

under one interpretation of an ambiguous question. The

ambiguity of the question can be an independent basis for

a defense on the theory that no prosecution can be sus-

tained for any answer to an ambiguous question. What-

ever the precise posture of the defense, the core of the

literal truth and the ambiguity defenses is the meaning of

ambiguity. The circuit courts have not agreed on a test for

ambiguitySome circuits require a “fundamental ambigu-

ity” that prevents any consensus on meaning between

reasonable people. Under this theory, a prosecution can

proceed even if a statement has more than one reasonable

interpretation as long as the government can prove that

the defendant knowingly answered falsely to one of the

interpretations. The conflicting test does not permit

prosecution for any question that has more than one

reasonable interpretation.

The Sixth Circuit followed the stricter rule, holding

both that the statements were not literally true and that

the questions were not fundamentally ambiguous. The

court stated that “Ahmed has in no way demonstrated that

his statements were facially true. His contention amounts

only to an assertion that under some conceivable inter-

pretation of the questions, his answers would not have

been false.” 472 F.3d at 432 (App. 6-7). The court found

that Ahmed was relying on unstated premises in the

questions to support his claim that the answers were

literally true. Jd. (App. 7). The court further found that a

defendant cannot rely on unstated premises to invalidate

4

10

a prosecution under the statute. Jd. (App. 7). In other

words, the court did not allow Ahmed to rely on the fact

that there was more than one reasonable interpretation of

the questions.

Regarding Ahmed’s argument that the questions were

ambiguous, the court cited Sixth Circuit and Third Circuit

law that only “fundamentally ambiguous” questions

provide a defendant with a defense; the court defined

fundamentally ambiguous as a question “without meaning

‘about which men of ordinary intellect could agree, nor one

which could be used with mutual understanding by ques-

tioner and answerer.” Jd. at 433 (App. 8-9) (United States v.

Damrah, 412 F.3d 618, 626 (6th Cir. 2005) (quoting United

States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987)). The

Sixth Circuit concluded that Ahmed could defend against

the charges on the theory that his belief that he was hon-

orably discharged and that Colonel Seroka could not sus-

pend his security clearance, but that these defenses had to

be presented to the jury as factual issues. Jd. (App. 8).

The test for what is an ambiguous or a “fundamen-

tally ambiguous” question is not settled in the circuit

courts. The Ninth Circuit noted the split in a 2004 case. In

United States v. Camper, 384 F.3d 1073 (9th Cir. 2004), the

court affirmed the conviction of a man for making a false

statement when applying for a job concerning security

clearance as a ramp agent at Los Angeles International

Airport. Jd. at 1074. Camper had been convicted of a

misdemeanor firearm charge, but when filling out his

application checked “no” to the question that asked

whether he had been convicted of unlawful possession of a

weapon. /d. Camper argued that his answer was literally

true because the question was ambiguous. /d. at 1075.

11

The Camper court noted that the Ninth Circuit

“distinguishes between answers that contain some ambi-

guity and those that are fundamentally ambiguous.” Jd. at

1076. “A question is fundamentally ambiguous when men

of ordinary intelligence cannot arrive at a mutual under-

standing of its meaning.” Jd. (quoting United States v.

Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003)). “Some

ambiguity” alone does not render a perjury conviction

invalid. Jd.

The Camper court noted that the Fourth Circuit uses

a different test for ambiguity. In a similar case regarding

statements on an application for airport security clear-

ance, the Fourth Circuit affirmed the dismissal of a false

statement indictment. United States v. Good, 326 F.3d 589

(4th Cir. 2003). The Camper court distinguished Good on

its facts, but also found “[a] far more compelling basis for

distinguishing Good [is] that the Fourth Circuit takes a

very different approach to ambiguity” than the Ninth

Circuit. Jd. at 1077.

Even if we were to accept the Government’s

argument that the per diem clause is ambiguous,

which would be the best that could be said for

the Government’s argument, the result would not

be different from [reversal conviction.] To be am-

biguous a contract must be susceptible of at least

two reasonable constructions. When the Gov-

ernment concedes that the clause is ambiguous,

it necessarily concedes that the defendant’s con-

struction of the per diem clause, which is one of

the constructions, is reasonable. Such a conclu-

sion requires a ruling that the defendants cannot

be convicted under § 1001 for a statement or bill-

ing that may be said to be accurate within a rea-

sonable construction of the contract. This is so

12

because one cannot be found guilty of a false

statement under a contract beyond a reasonable

doubt when his statement is within a reasonable

construction of the contract.

United States v. Race, 632 F.2d 1014, 1020 (4th Cir. 1980)

- (quoted in Camper, 384 F.3d at 1078). The Camper court

concluded that the Ninth Circuit permits conviction for a

false statement even when a question has “two plausible

meanings” if the government can prove that “the defen-

dant understood one such meaning and answered falsely

to it[.]” Jd. at 1078.

The Sixth Circuit follows the stricter fundamental

ambiguity rule described by the Ninth Circuit. This split

has persisted for many years in the circuit courts without

resolution.

Ahmed’s answer to the question as to whether he had

left a job under unfavorable circumstances was literally

true under one reasonable interpretation of the question.

As was testified to by Col. Seroka, the government did not

seek a dishonorable discharge nor did his commanding

officer. Seroka testified that the events did not meet

anything but an honorable discharge.

As to Count Two, the actual question was:

To your knowledge, have you ever had a

clearance or access authorization denied, sus-

pended, or revoked, or have you ever been de-

barred from government employment? If “yes,”

give date of action and agency. Note: An admin-

istrative downgrade or termination of security

clearance is not revocation.

Seroka testified that he did not have the authority to

revoke the Defendant’s security clearance and that was

13

done through a separate organization. The Air Force

Central Adjudication Facility is the only authority that

has the authority to grant, suspend, deny or revoke

personal security clearance. The colonel testified that he

did not suspend the Defendant’s security clearance, but

terminated his access to secured areas as part of his

discharge decision. The interpretation by his colonel was

there was no suspension of his security clearance. It was

reasonable for Ahmed to rely on the note on question 18(b)

that said, “{aln administrative downgrade or termination

of security clearance is not revocation.”

The Sixth Circuit disagreed with Ahmed’s arguments,

holding both that the statements were not facially true

and that the questions were not fundamentally ambigu-

ous. Ahmed prays that this Court grant his petition for

writ of certiorari to resolve the standard for ambiguity

under a prosecution for violation of 18 U.S.C. § 1001.

Respectfully submitted,

MICHAEL B. SKINNER

LAW OFFICES OF

MICHAEL B. SKINNER

27 East Flint Street

Lake Orion, Michigan 48362-3222

Telephone (248) 693-4100

App. 1

472 F.3d 427

United States Court of Appeals, Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v. |

Sadeq Naji AHMED, Defendant-Appellant.

No. 05-2319.

Argued: Nov. 28, 2006.

Decided and Filed: Dec. 29, 2006.

ARGUED: Richard M. Lustig, Richard M. Lustig

Law Office, Birmingham, Michigan, for Appellant. Cath-

leen M. Corken, Assistant United States Attorney, Detroit,

Michigan, for Appellee. ON BRIEF: Richard M. Lustig,

Richard M. Lustig Law Office, Birmingham, Michigan, for

Appellant. Cathleen M. Corken, Assistant United States

Attorney, Detroit, Michigan, for Appellee.

Before: BOGGS, Chief Judge; COOK, Circuit Judge;

and CARR, Chief District Judge.*

OPINION

BOGGS, Chief Judge.

Sadeq Ahmed was indicted on two counts of making

false statements in violation of 18 U.S.C. § 1001(a)(2),

based on written answers he gave about his employment

history as part of his background investigation for a

baggage screener position with the Transportation Secu-

rity Administration (TSA). After a jury trial resulted in

guilty verdicts on both counts, the district court sentenced

him to 18 months of imprisonment. Ahmed now appeals

* The Honorable James G. Carr, Chief United States District

Judge for the Northern District of Ohio, sitting by designation.

App. 2

his conviction, alleging insufficiency of the indictment and

evidentiary errors; and his sentence, alleging that the

district court’s imposition of a sentence above the guide-

lines range was unreasonable. We affirm.

ce

I

In December 1997, Sadeq Ahmed enlisted in the

United States Air Force, and was stationed at Elgin Air

Force Base in Florida, where he was assigned to the

Operations Support Squadron of the 33rd Fighter Wing.

His responsibilities included analyzing performance and

capability information relating to F-15 fighters and pilots,

and required security clearance.

In March 2001, Ahmed authored and circulated a

document defending Usama bin Laden as a victim of

religious persecution, and accusing the United States of

acts of terrorism, for, among other things, the use of

atomic weapons at Hiroshima and Nagasaki, bombing of

Iraqi civilians, imposing sanctions on Iraq, and supporting

the “terrorist state” of Israel. He further indicated, in

statements to other servicemen, that he believed all

aircraft flying over Iraq should crash, a statement under-

stood to apply to the United States aircraft then enforcing

no-fly zone restrictions. In a discussion of his document

and statements with his supervisor, Ahmed indicated that,

if the United States went to war with Iraq, he would have

to fight on the Iraqi side. On other occasions, he verbally

contemplated the possibility of fighting against, and

killing, United States soldiers should the United States

become involved in a conflict that violated his religious

beliefs, and that he would like the opportunity to fight in

the noble cause of his hero, bin Laden.

App. 3

As the events of September 11, 2001, unfolded, Ah-

med, watching the destruction on television in the com-

pany of his colleagues, remarked that the attacks were a

“beautiful sight,” and later commented that the United

States deserved the attacks because of its support for

Israel, and that he was very happy about what had hap-

pened. By this time, the Operations Support Squadron

commander, Col. Steven Seroka, had been aware for

several months that Ahmed’s statements were causing

concern to his superiors. After being informed of Ahmed’s

comments on September 11, Seroka asked Ahmed’s superi-

ors to speak with him to determine his loyalties. His

superiors met with Ahmed to discuss the matter on Sep-

tember 13, and reported back to Seroka that Ahmed had

specified his loyalty to his family and religion, but had not

included the United States or its military among his

loyalties, and had stated that he was neither for or against

the September 11 attacks.

On September 17, 2001, Ahmed was ordered to “report

in,” a formal meeting with his full chain of command that

is governed by an established protocol. At the meeting,

Seroka informed Ahmed that he was suspending his access

to classified information, and prohibited him from entering

the area of the 33rd Fighter Wing. Seroka read Ahmed a

“Notification of Suspension of Access,” which indicated

that a determination had been made to suspend his access

to classified information and unescorted entry into re-

stricted areas. Ahmed signed and retained a copy of this

notification. Ahmed also signed a “Security Termination

Statement,” which indicated his “termination of access to

all classified information,” and a document entitled “Re-

striction from 33 Fighter Wing.” Ahmed was relieved of his

duties with the Operational Support Squadron, and

App. 4

assigned to another squadron in another part of the base,

which involved no access to classified information. He was

escorted from the meeting to his former worksite to gather

his personal belongings, and escorted to his new station.

At the time of the reporting in, Ahmed had been scheduled

for discharge on December 2, 2001.

After the meeting, Seroka was concerned that stop

loss would be implemented before that date, thus poten-

tially deferring Ahmed’s discharge, and asked Ahmed’s

new chain of command to discuss an earlier discharge date

with him. Seroka subsequently approved an advancement

of Ahmed’s discharge date to September 28, 2001. Subse-

quent to his discharge on that date, Ahmed was mailed his

final performance evaluation, and returned a mailed

acknowledgment of receipt. In this evaluation, Ahmed’s

immediate supervisor, Sgt. Sharpe, rated Ahmed positively

on a number of points relating to his duties, but catego-

rized his “conduct on/off duty” as “unacceptable,” and did

not recommend his promotion “at this time.” The report

also included extensive comments from Seroka, indicating

that the ratings did not “fully capture or document the

magnitude of SrA Ahmed’s disloyal, near seditionist

behavior,” providing considerable detail regarding Ahmed’s

history in this regard, and recommending a more critical

evaluation in specific categories. Seroka testified at trial

that, on advice of military lawyers, he did not seek a

dishonorable discharge.

After his discharge, Ahmed worked for a-private com-

pany providing baggage and passenger screening services at

Detroit Metropolitan Airport. In October 2002, the TSA took

over screening functions, ~and Ahmed was transferred

to TSA, conditional on his completion of a security back-

ground investigation. As part of that investigation, Ahmed

App. 5

completed a “Questionnaire for Public Trust Positions,”

developed by the Office of Personnel Management. Section

12 of the form asked whether the applicant had, within

the last seven years, been

1-Fired from job; 2-Quit a job after being told

you'd be fired; 3-Left a job by mutual agreement

following allegations of misconduct; 4-Left a job

by mutual agreement following allegations of un-

satisfactory performance; 5-Left a job for others

[sic] reasons under unfavorable circumstances

Ahmed checked “no”. Section 18b of the form

asked:To your knowledge, have you ever had a

clearance or access authorization denied, sus-

pended, or revoked, or have you ever been de-

barred from government employment? If “yes,”

give date of action and agency. note: An adminis-

trative downgrade or termination of security

clearance is not a revocation.

Ahmed checked “no.”

On July 21, 2004, Ahmed was indicted on two counts

of making false statements, in violation of 18 U.S.C.

§ 1001(a)(2), based on these responses. On May 19, 2005,

the jury returned a guilty verdict on both counts. The

district court calculated a guidelines range of zero to six

months of imprisonment, and imposed a sentence of 18

months. Ahmed filed a timely notice of appeal.

II

Ahmed argues that his indictment failed to allege an

offense under 18 U.S.C. § 1001 because his answers to the

questions were literally true or, alternatively, that the

vagueness of the questions precludes a finding his responses

App. 6

constituted false statements.’ Ahmed raised an objection to

count 1 of the indictment, relating to his answer in Section

12, in his motion to dismiss, but raises his objection to

count 2, relating to his answer in Section 18, for the first

time on appeal. We review the sufficiency of an indictment

de novo, but as to the second count, because it was unchal-

lenged below, we construe the indictment “liberally in

favor of its sufficiency.” United States v. Perry, 438 F.3d

642, 651 (6th Cir.2006).

Ahmed’s argument rests on the contention that,

because he was honorably discharged, his denial of “unfa-

vorable circumstances” surrounding his departure from

the Air Force was literally true; and that because his

security clearance had not been revoked (an action outside

of Col. Seroka’s authority), his answer to the second question

was literally true in light of its instruction that an “adminis-

trative downgrade or termination ... is not a revocation.”

Ahmed is correct as a legal matter that a § 1001 indictment

“premised on a statement which on its face is not false” is

fatally defective, insofar as a false statement is an element of

the crime. United States v. Gatewood, 173 F.3d 983, 986 (6th

Cir.1999) (quoting United States v. Gahagan, 881 F.2d

1380, 1383 (6th Cir.1989)).

However, Ahmed has in no way demonstrated that

his statements were facially true. His contention amounts

only to an assertion that under some conceivable inter-

pretation of the questions, his answers would not have

* Ahmed briefly mentions the argument he made below in his

motion to dismiss, that Count 1 of the indictment “was void for vague-

ness and overbredth [sic] and, therefore unconstitutional,” but does not

appear to renew that argument on appeal. We thus consider it aban-

doned. Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir.2005).

App. 7

been false. He argues, in effect, that because “unfavorable

circumstances” could be construed to exclude an honorable

discharge, and because the restrictions placed on his

classified access after his reporting in could be construed

to be an “administrative downgrade or termination,” his

answers are literally true. Our cases have not directly

addressed this type of contention in a § 1001 context, but

as a matter of logic, this is a far cry from a demonstration

of facial truth. As other courts have observed in the analo-

gous context of perjury prosecutions, the possibility that a

defendant “can postulate unstated premises of the ques-

tion that would make his answer literally true” does not

bar the possibility of liability. United States v. Cuesta, 597

F.2d 903, 920 (5th Cir.1979); see also United States v.

Kehoe, 562 F.2d 65, 68 (1st Cir.1977) (“We do not believe

that the possibility that the defendant understood the

questions to be limited to one particular incident raises an

issue of literal truth.”). Rather, his argument only raises a

jury issue as to a reasonable interpretation of the question

and his actual understanding.

The § 1001 cases Ahmed relies on to support his

contention of facial truth are inapposite. In Gatewood, the

defendant was charged with falsely certifying that he had

made “payments” to subcontractors, when he had in fact

made payments that covered only part of what was owed.

In Gahagan, the defendant was charged with falsely

denying ownership of a vehicle, when he had legally

transferred title to the vehicle before making that repre-

sentation (although apparently he still had effective

control of the vehicle). In both cases, this court found the

indictments to be defective, insofar as the statements in

question were. facially true: construing the responses in

these cases as false would have required an unstated

App. 8

premise (in Gatewood, that “payments” meant “full pay-

ments,” and in Gahagan, that “ownership” meant some-

thing other than legal title). This case presents precisely

the opposite situation, where unstated premises are

required to construe Ahmed’s answers as true.’

Ahmed’s alternative argument, that the vagueness of

the questions renders it impossible to conclude that he

answered them falsely, is similarly unavailing. Even if the

interpretations of the questions Ahmed claims to have had

in mind when he answered are plausible-i.e., even if the

questions exhibited some conceivable degree of ambiguity-

“a defendant’s ‘understanding of the question is for the

jury to resolve in the first instance.’” United States v.

Damrah, 412 F.3d 618, 626 (6th Cir.2005) (citing United

States v. Farmer, 137 F.3d 1265, 1269-(10th Cir.1998)).

Indeed, a false statement charge under § 1001, like a

perjury charge, effectively demands “an inquiry into the

Defendant’s state of mind and his intent to deceive at the

time the testimony was given,” and “the entire focus of a

perjury inquiry centers upon what the testifier knew and

when he knew it,” in order to “establish[] beyond a rea-

sonable doubt that he knew his testimony to be false when

he gave it.” United States v. DeZarn, 157 F.3d 1042, 1049

(6th Cir.1998). Short of a question that is “fundamentally

ambiguous” — one “without meaning ‘about which men of

ordinary intellect could agree, nor one which could be used

* Ahmed also invokes Bronston v. United States, 409 U.S. 352, 93

S.Ct. 595, 34 L.Ed.2d 568 (1973), in support of his “litera) truth” claim,

but the literal truth defense articulated in Bronston specifically

concerns non-responsive answers that are literally true, even if clearly

intended to deceive. Ahmed, however, has given no reason to suggest

that his answers here were similarly non-responsive-indeed, an answer

of “no” hardly could be.

‘

App. 9

with mutual understanding by a questioner and an-

swerer,” Damrah, 412 F.3d at 626 (quoting United States

v. Ryan, 828 F.2d 1010, 1015 (3d Cir.1987)) — Ahmed’s

actual understanding of the questions is a matter for the

jury. Although the questions at issue here may indeed be

broad, there is no basis to conclude that they display the

kind of fundamental ambiguity that would invalidate the

indictment. See id. at 627 (noting the distinction between

ambiguity and breadth).

Ill

Ahmed further claims that he was denied his right to

a fair trial as a result of two alleged evidentiary errors

during his trial. Neither of these claims merits reversal.

* The distinction between non-responsiveness and faux ambiguity

can be seen in an analogy to the Bronston case. When Bronston was

asked whether he had ever had a Swiss bank account and he answered,

“The company had an account there for about six months... ,” 409 U.S.

at 354, 93 S.Ct. 595, the answer was non-responsive but, as the court

held, not false. On the other hand, had Bronston answered “no” because

he had in mind the possible ambiguity that a “Swiss” bank account

would be one made out of chocolate, it would properly have been a

question for the jury as to whether that alleged interpretation was

either plausible, or actually in his mind, rather than a post hoc

rationalization.

Here, in the same fashion, it is possible that a person could think

that there is no circumstance other than a dishonorable discharge that

would constitute “unfavorable circumstances,” but similarly, whether

that interpretation was reasonable or actually in the defendant’s mind

is a matter for the jury. The same applies to Ahmed’s other answer,

where it could be possible that, even after having been given a piece of

paper that says “a security determination has been made to suspend

your access to classified information,” a person could believe that his

access authorization had not been suspended, but that too is a matter

for the jury. See DeZarn, 157 F.3d at 1049.

App. 10

A

At trial, Inga Tibbs, an Assistant Director in TSA’s

Personnel Security Division, testified for the prosecution

about the agency’s determination of Ahmed’s employment

suitability, and the role his answers to the Questionnaire

played in that determination. As part of that testimony,

she indicated that the information provided by the Office

of Personnel Management suggested to the TSA that

Ahmed had not been honest in his answer to Section 12 of

the Questionnaire, and that this conclusion influenced

their employment suitability determination. At trial,

Ahmed objected to this line of questioning on the ground

that it was more prejudicial than probative; on appeal, he

argues instead that admission of this testimony was

improper lay opinion under Fed.R.Evid. 701, and-

apparently without noting the inherent contradiction-

improper “ultimate issue” expert testimony under

Fed.R.Evid. 704(b). Insofar as his argument on appeal is

based on grounds not asserted at trial, we review for plain

error. United: States v. Reed, 167 F.3d 984, 989 (6th

Cir.1999).

Ahmed’s Rule 704(b) argument is completely without

merit: the rule by its terms applies to expert witness

testimony, and Tibbs was not testifying as an expert

witness.

Fed.R.Evid. 701 permits lay opinion testimony where

it is “(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’ testi-

mony or the determination of a fact in issue, and (c) not

based on scientific, technical, or other specialized knowl-

edge within the scope of Rule 702.” The testimony here

clearly meets these criteria. Tibbs was directly involved in

~~

App. 11

the determination of Ahmed’s suitability for continued

employment, and testified based on her personal know!l-

edge of the TSA’s evaluation of Ahmed’s answers, thus

satisfying the first condition. See Torres v. County of

Oakland, 758 F.2d 147, 149 (6th Cir.1985) (the “founda-

tional requirement of personal knowledge” is satisfied

when the witness was “privy to the details” of the events

in question). Tibbs’s testimony was elicited to prove that

Ahmed’s answers were material to the agency’s determina-

tion that he was unsuitable for employment-an element of

a § 1001 offense, and one that was disputed at trial by the

Ahmed, who argued that the TSA conducts its own inves-

tigation and would base its decision on that, rather than

his answers-and thus clearly helpful to a determination of

a fact in issue. See United States v. Steele, 933 F.2d 1313,

1319 (6th Cir.1991) (a statement is material under § 1001

if it has a tendency to influence a function entrusted to a

governmental agency). Finally, there is no suggestion that

Tibbs’ testimony was based on any kind of specialized

knowledge.

Ahmed correctly notes that this court disfavors lay

opinion testimony when it consists of a legal conclusion,

citing Torres for the proposition that “testimony containing

a legal conclusion ... conveying the witness’ unexpressed,

and perhaps erroneous, legal standards to the jury ...

invade[s] the province of the court to determine the appli-

cable law and to instruct the jury as to that law.” 758 F.2d

at 150 (internal quotation marks and citations omitted).

However, we also “accord a relatively wide degree of

discretion in admitting or excluding testimony which

arguably contains a legal conclusion . . . because it is often

difficult to determine whether a legal conclusion is impli-

cated in the testimony.” Ibid. Tibbs’s testimony that

App. 12

Ahmed answered falsely at most amounts to an extremely

ambiguous case. Falsity is an element of a § 1001 offense,

and in that respect her testimony implicates a legal

conclusion. However, such an ambiguity is resolved by

“determinfing] whether the terms used by the witness

have a separate, distinct and specialized meaning in the

law different from that present in the vernacular,” idid.,

and there is no suggestion in the record that Tibbs’s

testimony was anything other than a non-technical ex-

pression of her informed opinion that Ahmed had given

false answers on his Questionnaire, and that such opinion

was material to the agencys determination of Ahmed’s

suitability for employment. No limiting instruction was

sought as to the proper use of her testimony.

B

Ahmed also argues that the trial court erred in admit-

ting Col. Seroka’s testimony regarding his exercise of his

right to remain silent during his September 17 “reporting

in,” in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.

2240, 49 L.Ed.2d 91 (1976). His argument misses the point

of Doyle, which held that it was a due process violation to

use post-arrest silence “to impeach an explanation subse-

quently offered at trial.” Jd. at 618, 96 S.Ct. 2240. Ahmed’s

silence in 2001, by contrast, did not relate to the matter

for which he was charged and tried — his answers on the

questionnaire in 2002 — rendering this case plainly outside

the scope of Doyle.

Ahmed also contends that the trial court erred by not

permitting cross-examination of Col. Seroka concerning

the contents of a written statement Ahmed made after his

reporting in (where he had been given 72 hours to respond

App. 13

in writing), and in not allowing the document itself to be

introduced. On cross-examination, Seroka testified that

Ahmed had submitted a response, but that it did not

address the issues and concerns raised at the reporting in.

At trial, Ahmed sought to overcome a hearsay objection to

introducing the document and testimony concerning its

contents on the grounds that he sought to impeach Seroka,

by showing that the documents did indeed address his

concerns. On appeal Ahmed suggests that the document

was not hearsay, for reasons that are not clearly articu-

lated, but which in any case cannot be correct. To the

extent that Ahmed merely sought to prove that he had

addressed the concerns raised at the reporting in, the

contents of the letter itself add nothing to the testimony

elicited from Col. Seroka on cross-examination, and

introducing the contents could only have been useful as

proof of the assertions made therein. Ahmed suggests no

applicable exception to the general inadmissibility of

hearsay, Fed.R.Evid. 802.

IV

Ahmed argues that the district court’s imposition of

an 18-month sentence, where the relevant guidelines

range was a prison sentence of zero to six months, was

unreasonable. He asserts that the district court failed to

consider adequately the sentencing factors set out in 18

U.S.C. § 3553(a) by not considering his education, career

in the Air Force, and expression of his First Amendment

rights. A review of the record, however, indicates the

contrary. The district court noted Ahmed’s excellent

service record prior to the incidents that led to his early

discharge, considered the continuing education Ahmed

was engaging in at the time (and indeed allowed Ahmed to

App. 14

report for his sentence after his graduation), and explicitly

addressed Ahmed’s allegation that the sentence and the

charges were in retaliation for protected but unpopular

speech or opinions. The trial court further explained in

detail its belief that the guidelines range largely contem-

plated false statements in the context of financial or other

similar fraud rather than in a public safety or national

security context, and that a false statement in the latter

context was considerably more serious, warranting greater

punishment based on gravity and the need for deterrence.

Given that the trial court in fact addressed the § 3553(a)

factors that Ahmed considered relevant, and that there is

no indication that it failed to consider any other relevant

factors, we consider the sentence to be procedurally

reasonable. See United States v. McBride, 434 F.3d 470,

475-76 & n. 3 (6th Cir.2006).

Ahmed does not develop an argument that his sen-

tence -was substantively unreasonable, beyond his request

that this court direct the trial court to “resentence him in

accordance with the Guidelines,” a request that clearly

misapprehends the post-Booker role of the Sentencing

Guidelines by implying that they remain mandatory. See

United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005). Although we do not accord a

presumption of substantive reasonableness to sentences

outside the guidelines range (as we do for sentences within

it), neither do we accord them a presumption of substan-

tive unreasonableness. United States v. Ferguson, 456 F.3d

660, 664-65 (6th Cir.2006). Beyond his (incorrect) allega-

tion that the trial court failed to consider pertinent factors,

and the assertion, addressed by the trial court, that his

unpopular speech was impermissibly considered as a factor,

Ahmed offers no reason to conclude that his sentence was

App. 15

substantively unreasonable. Indeed, the sentence was

grounded in the trial court’s clearly articulated, well-

reasoned concerns about the seriousness of the crime and

the need for deterrence, did not accord “an unreasonable

amount of weight to any pertinent factor,” and was not

selected arbitrarily. United States v. Webb, 403 F.3d 373,

385 (2005).

V

For the foregoing reasons, we AFFIRM the district

court’s judgment.