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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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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CI TOE isicciinrnscircnteintsenniannnniaaianienadiakaial 1
SU iicicinsseveiisitaacninnniguiibinibiialigaes pbiniiteadepinciaia 1
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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I SII cities csc dalea cecretaargcrdintinand cdaekingeabialineatannivaceiads 1

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0471%3A1. Public record. Not legal advice.