*

The Honorable James G. Carr, Chief United States District Judge for the Northern District of Ohio, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0475p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SADEQ NAJI AHMED,

Defendant-Appellant.

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No. 05-2319

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-80629—Bernard A. Friedman, Chief District Judge.

Argued: November 28, 2006

Decided and Filed: December 29, 2006 

Before: BOGGS, Chief Judge; COOK, Circuit Judge; and CARR, Chief District Judge.*

_________________

COUNSEL

ARGUED: Richard M. Lustig, RICHARD M. LUSTIG LAW OFFICE, Birmingham, Michigan,

for Appellant. Cathleen 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.

_________________

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 Security 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 his

conviction, alleging insufficiency of the indictment and evidentiary errors; and his sentence, alleging

1
No. 05-2319 United States v. Ahmed Page 2

that the district court’s imposition of a sentence above the guidelines range was unreasonable. We

affirm.

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

understood 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.

As the events of September 11, 2001, unfolded, Ahmed, watching the destruction on

television in the company 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 happened. 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 superiors to speak with him to determine his loyalties. His superiors met

with Ahmed to discuss the matter on September 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 restricted 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 “Restriction from 33

Fighter Wing.” Ahmed was relieved of his duties with the Operational Support Squadron, and

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 potentially 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. Subsequent 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
No. 05-2319 United States v. Ahmed Page 3

1

Ahmed briefly mentions the argument he made below in his motion to dismiss, that Count 1 of the indictment

“was void for vagueness and overbredth [sic] and, therefore unconstitutional,” but does not appear to renew that

argument on appeal. We thus consider it abandoned. Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005). 

of points relating to his duties, but categorized 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 company 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

background investigation. As part of that investigation, Ahmed 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 unsatisfactory 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,

suspended, or revoked, or have you ever been debarred from government

employment? If “yes,” give date of action and agency. note: An administrative

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 constituted false statements.1

 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 unchallenged

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 “unfavorable 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 “administrative downgrade or termination . . . is not a revocation.” Ahmed is correct as a legal
No. 05-2319 United States v. Ahmed Page 4

2

Ahmed also invokes Bronston v. United States, 409 U.S. 352 (1973), in support of his “literal 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.

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 interpretation of the questions,

his answers would not have 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 analogous context of perjury prosecutions, the

possibility that a defendant “can postulate unstated premises of the question 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. 1978) (“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 representation (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 premise (in Gatewood, that “payments” meant “full

payments,” and in Gahagan, that “ownership” meant something other than legal title). This case

presents precisely the opposite situation, where unstated premises are required to construe Ahmed’s

answers as true.

2

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 reasonable 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 with mutual understanding by a questioner and answerer,’”

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
No. 05-2319 United States v. Ahmed Page 5

3

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, 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.

of fundamental ambiguity that would invalidate the indictment. See id. at 627 (noting the distinction

between ambiguity and breadth).3

III

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.

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’ testimony or the

determination of a fact in issue, and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” The testimony here clearly meets these criteria. Tibbs

was directly involved in the determination of Ahmed’s suitability for continued employment, and

testified based on her personal knowledge of the TSA’s evaluation of Ahmed’s answers, thus

satisfying the first condition. See United States v. Torres, 758 F.2d 147, 149 (6th Cir. 1985) (the

“foundational 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 determination 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 investigation 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 sugestion that Tibbs’ testimony was based

on any kind of specialized knowledge.
No. 05-2319 United States v. Ahmed Page 6

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 applicable 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

implicated in the testimony.” Ibid. Tibbs’s testimony that 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 “determin[ing]

whether the terms used by the witness have a separate, distinct and specialized meaning in the law

different from that present in the vernacular,” ibid., and there is no suggestion in the record that

Tibbs’s testimony was anything other than a non-technical expression of her informed opinion that

Ahmed had given false answers on his Questionnaire, and that such opinion was material to the

agency’s 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 admitting 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 (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 subsequently offered

at trial.” Id. at 618. 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 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 articulated, 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 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 contemplated false statements
No. 05-2319 United States v. Ahmed Page 7

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 sentence 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 (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

substantive unreasonableness. United States v. Ferguson, 456 F.3d 660, 664-65 (6th Cir. 2006).

Beyond his (incorrect) allegation 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 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.