United States v. Nael Sammour ( 2016 )

Case: 13-13962 Date Filed: 03/16/2016 Page: 1 of 29
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13962
________________________
D.C. Docket No. 0:13-cr-60024-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAEL SAMMOUR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(March 16, 2016)
Before WILLIAM PRYOR and DUBINA, Circuit Judges, and ROBRENO, *
District Judge.
WILLIAM PRYOR, Circuit Judge:
*
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Case: 13-13962 Date Filed: 03/16/2016 Page: 2 of 29
This appeal requires us to review the convictions and sentence of Nael
Sammour, who participated in a scheme to file fraudulent income tax returns with
stolen identities. Sammour, an Arab Muslim, argues that he was denied a fair trial
after a juror, at the start of deliberations, slipped a note to the clerk stating that she
feared for her safety because “this reeks of al Qaeda.” The juror expressed this fear
even though Sammour was charged with identity theft; the case had nothing to do
with terrorism or al Qaeda. Exercising its “broad discretion” in dealing with
potential juror bias, United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978),
the district court questioned the juror outside the presence of the other jurors,
dispelled her fears, and found that she could be fair and impartial before returning
her to the jury room. Sammour quibbles with the questions the district court asked
and the credibility determination it made, but the district court is expert in these
matters. See Patton v. Yount, 467 U.S. 1025, 1038–39 (1984). It interacts with
jurors every day (we never do), and it was present when the juror answered its
questions (we were not). The district court did not abuse its discretion. And
Sammour’s challenges to the sufficiency of the evidence, the jury instructions, and
the reasonableness of his sentence are meritless. We affirm.
2
Case: 13-13962 Date Filed: 03/16/2016 Page: 3 of 29
I. BACKGROUND
Nael Sammour is a 55-year-old man who owned a wholesale grocery store
in Broward County, Florida. He is an Arab Muslim who immigrated to the United
States in 1980. And soon after, he started a life of crime in this country.
In 2012, Sammour became involved in a scheme to file fraudulent income
tax returns. Sammour’s cohorts stole the names and social security numbers of
other persons and filed federal tax returns on their behalf. When the Treasury
Department issued refund checks based on the fraudulent returns, the fraudsters
had the checks mailed to themselves.
Sammour’s job was to cash the checks. He enlisted someone to create fake
driver’s licenses and social security cards for the names on the checks. But because
cashing fraudulent checks is difficult, Sammour needed someone with connections
to check-cashing stores willing to look the other way.
The Internal Revenue Service detected this scheme and sent Agent Amjad
Qaqish undercover to pose as an interested check-casher. Agent Qaqish met with
Sammour seven times. Their meetings were conducted in Arabic, and Agent
Qaqish surreptitiously recorded the meetings with a camera and microphone. All
told, Sammour gave Agent Qaqish 70 Treasury checks totaling more than
$700,000. Agent Qaqish never actually cashed the checks, but he made small
payments to Sammour to maintain their relationship.
3
Case: 13-13962 Date Filed: 03/16/2016 Page: 4 of 29
Two meetings between Sammour and Agent Qaqish are particularly
important. On November 17, 2012, Agent Qaqish met Sammour at a Starbucks
coffee shop. Sammour gave him a Treasury check for $377,049 made payable to
“Alex Giorland” for Agent Qaqish to cash in exchange for a 25 percent
commission. Sammour also gave him a fake driver’s license for “Alex Giorland”
and an envelope with a social security number and date of birth on it. On
December 6, 2012, Agent Qaqish met Sammour at a Popeye’s restaurant.
Sammour gave Agent Qaqish a Treasury check for $5,318.25 made payable to
“Angie H. Gonzales,” as well as a fake driver’s license and social security card.
In the course of these meetings, Sammour revealed that he had a
sophisticated understanding of the tax-fraud scheme. He told Agent Qaqish that he
was “a hundred percent sure” that the checks were “good.” “[T]he way this is
done,” Sammour explained, “is we set it up so where we pick one individual, give
him three dependents, put down that he doesn’t make too much money, and then
we’re able to maximize the amount of the refund that he gets.” “[T]hey make sure
their calculations are exactly accurate so they can maximize the refunds.” When
Agent Qaqish expressed concern that the victims might report the checks as stolen,
Sammour told him not to worry. His cohorts select their victims “carefully” by
“trying to find people that wouldn’t have filed tax returns.” “[W]e wait to make
sure that whoever is gonna file has filed, and then we do this.”
4
Case: 13-13962 Date Filed: 03/16/2016 Page: 5 of 29
Sammour was arrested in January 2013. Agents found two Treasury checks
in his pockets worth $11,794.99 and three Treasury checks in his car worth
$22,879.97. Those checks brought the total number of checks that Sammour had
transferred or possessed to 75.
A grand jury indicted Sammour on two counts of aggravated identity theft,
18 U.S.C. § 1028A, and eight counts of theft of public money, id. § 641. Sammour
pleaded guilty to the eight counts of theft of public money without the benefit of a
plea agreement. But he went to trial on the two counts of aggravated identity theft.
At trial, the government called four witnesses: Agent Qaqish, Agent Bradley
Cohen, Alex Giorlando, and Angie Huerta Gonzalez. Agent Qaqish testified about
the undercover sting and his meetings with Sammour. The jury watched the
videotapes of the meetings at Popeye’s and Starbucks while Agent Qaqish narrated
what was happening. Because Sammour and Agent Qaqish were speaking Arabic
on the videotapes, the jury followed the conversations by reading transcripts that
were translated into English.
Agent Cohen, a special agent in the Service’s Criminal Investigation
Division, explained to the jury how tax fraud works. When the Service receives a
tax return, it verifies the filer’s identity by checking his social security number and
the first four letters of his last name. If this information matches the information in
the Service’s database, then the Service will issue a Treasury check to the address
5
Case: 13-13962 Date Filed: 03/16/2016 Page: 6 of 29
listed on the return. The Service does not verify whether the filer lives at that
address. A fraudster who has someone’s name and social security number can file
a return on that person’s behalf and change the address so that the check comes to
him instead. But this scheme does not work unless the fraudster files the fraudulent
return before the victim files her legitimate return, as the Service will issue only
one check per person.
The government called Alex Giorlando and Angie Huerta Gonzalez to prove
that they were the same “Alex Giorland” and “Angie H. Gonzales” whose
identifications Sammour had given to Agent Qaqish. Agent Cohen found these
individuals after the Service recovered their checks. Both witnesses testified that
they spell their names slightly differently than Sammour’s documents spelled
them: Alex Giorlando has an “o” on the end of his last name, and Angie Huerta
Gonzalez has a “z” instead of an “s” on the end of her last name. But Alex
Giorlando testified that the date of birth and social security number for “Alex
Giorland” are his actual date of birth and social security number. And Angie
Huerta Gonzalez testified that the social security number for “Angie H. Gonzales”
is her actual social security number. The witnesses also testified that they had tried
to file tax returns but were unsuccessful because someone had already filed returns
in their names.
6
Case: 13-13962 Date Filed: 03/16/2016 Page: 7 of 29
After the close of all evidence, Sammour filed a motion for a judgment of
acquittal. He argued that the government failed to present sufficient evidence that
“Alex Giorland” and “Angie H. Gonzales” were actual persons or that Sammour
knew they were actual persons. The district court denied his motion.
The district court then instructed the jury. Although the indictment charged
Sammour with possessing and transferring “a means of identification of another
person, that is, [a] name and Social Security number,” the jury instructions
identified the relevant “means of identification” as “any name, social security
number, or date of birth.” (Emphasis added.) Despite this additional wording,
Sammour did not object to the jury instructions.
While the jury deliberated, the district court received a note from the clerk.
The note came from Juror 9, who silently slipped it to the clerk while the clerk was
passing out lunch menus. We reproduce the note below with the juror’s signature
redacted.
7
Case: 13-13962 Date Filed: 03/16/2016 Page: 8 of 29
The district court informed the parties about the note. Sammour asked for a
mistrial, but the district court declined. It instead decided to question Juror 9
outside the presence of the other jurors.
The district court called Juror 9 back into the courtroom. It first asked her
whether she had communicated her fears to any other juror. Juror 9 answered, “I
have not.” The district court asked, “So, this is just your own personal concern?”
Juror 9 responded, “I’m just paranoid.” The district court again asked her whether
she had kept these concerns to herself. Juror 9 responded, “Oh, absolutely. Because
I didn’t want to sway the rest of the jury.” The district court then sought to allay
her concerns. It explained that “there’s no connection to terrorism in this case.
There’s no evidence of it. There’s no indication of Al-Qaeda or terrorism.” “Even
if there were a jury protection program,” the district court explained, “this case
wouldn’t qualify for it.” The district court asked Juror 9 whether she could “put
aside this concern and be fair.” She answered, “I’ll do what’s fair.” The district
court again asked her whether she could put aside her fears “and be a fair juror for
both the defendant, the government, just follow the law, and base your verdict on
the facts.” Juror 9 answered, “Yes.” The district court instructed her to return to the
jury room. Sammour complained that Juror 9 looked like she was about to cry, but
the district court disagreed. It “didn’t see anything about her looking like she was
gonna cry” and it “believe[d] her when she said that she would be fair.” It
8
Case: 13-13962 Date Filed: 03/16/2016 Page: 9 of 29
concluded that it had sufficiently “quelled” her fears, which she admitted were a
product of her own idiosyncratic paranoia.
Shortly afterwards, the jury returned its verdict. It convicted Sammour of
both counts of aggravated identity theft. Sammour renewed his motion for a
judgment of acquittal, but the district court again denied it.
After the trial, the district court sentenced Sammour for the two counts of
aggravated identity theft and the eight counts of theft of public money. The
sentence for aggravated identity theft was straightforward. The statute required a
sentence of 24 months per count, although sentences for multiple counts could run
concurrently. 18 U.S.C. § 1028A. This statutory sentence could not be increased or
decreased under the guidelines. See United States Sentencing Guidelines Manual
§ 2B1.6 (Nov. 2012). Accordingly, the district court imposed concurrent sentences
of 24 months.
The sentence for theft of public money, by contrast, required more detailed
calculations. The presentence investigation report recommended a guideline range
of 70–87 months. It calculated an offense level of 26: the base offense level for
theft of public money was 6, id. § 2B1.1(a)(2), and the report recommended an
increase of 14 levels because the loss to the government was greater than
$400,000, id. § 2B1.1(b)(1)(H), an increase of 4 levels because the crime involved
more than 50 victims, id. § 2B1.1(b)(2)(B), and an increase of 2 levels because the
9
Case: 13-13962 Date Filed: 03/16/2016 Page: 10 of 29
crime involved the trafficking of an access device, id. § 2B1.1(b)(11)(B). The
report calculated a criminal history category of II. Sammour received 3 criminal
history points for a 1995 conviction of federal bank fraud, for which he spent 27
months in prison and five years on supervised release.
Sammour has more than a dozen other convictions that were unscorable
either because they were too old or because the sentences were too short. Those
convictions include a 1982 conviction for possession of an unregistered handgun; a
1985 conviction for resisting an officer without violence; 1985 convictions for
receiving stolen property and possession of criminal tools; 1987 convictions for
driving with a suspended license and without a tag; 1988 convictions for
aggravated assault, battery, aggravated battery, resisting an officer without
violence, and corruption by threat against a public servant; a 1988 conviction for
driving with a suspended license; 1991 convictions for forgery, uttering a forged
instrument, and receiving stolen property; a 1991 conviction for federal bank
fraud; and 2009 convictions for reckless driving and improperly passing a vehicle.
Both parties requested modifications to the presentence investigation report.
The government asked for an upward departure to a higher criminal history
category, id. § 4A1.3(a)(1), which the district court granted. Based on Sammour’s
numerous unscored convictions, the district court concluded that category II did
not sufficiently represent his criminal history. It treated the unscored convictions as
10
Case: 13-13962 Date Filed: 03/16/2016 Page: 11 of 29
if they were scorable, which yielded a total of 11 criminal history points and a
criminal history category of V. Accordingly, the district court departed upward
from criminal history category II to V. Sammour objected to the 2-level increase
for trafficking an access device, and the district court sustained his objection.
Sammour also objected to the 4-level increase based on the number of
victims, but the district court rejected his arguments. Sammour argued that he
never “used” anyone’s identification, id. § 2B1.1 cmt. n.4(E), because he “mere[ly]
transfer[red]” the identifications to Agent Qaqish, United States v. Hall, 704 F.3d
1317, 1323 (11th Cir. 2013). The district court disagreed because Sammour’s case
involved “much more” than the transfer of identifications. Indeed, the presentence
investigation report explained that “[t]he scheme involved the use of stolen
identities, specifically names, social security numbers and dates of birth that are
being used to file false income tax returns.” (Emphasis added.) And Sammour
never objected to that fact.
Sammour also objected to the 4-level increase for 50+ victims on the ground
that the government had failed to prove the identifications belonged to 50 real
individuals, but the district court overruled this objection too. The entire point of
the tax-fraud scheme was to target real individuals, the district court explained.
Sammour had 75 unique Treasury checks in his possession, and Agent Cohen
testified that the Service does not issue Treasury checks to “false, made-up” social
11
Case: 13-13962 Date Filed: 03/16/2016 Page: 12 of 29
security numbers. Agent Cohen also testified that he spoke to 26 of Sammour’s
victims on the phone, another 21 had mailed in affidavits, and the remaining 28
were listed in the Service’s database. Based on this information, the district court
concluded that Sammour’s crimes affected at least 50 real victims.
Finally, the district court rejected Sammour’s request for a 2-level decrease
based on acceptance of responsibility, U.S.S.G. § 3E1.1(a). Sammour argued that
he had accepted responsibility by pleading guilty to theft of public money and by
apologizing for his actions during the sentencing proceedings. But the district court
disagreed. Sammour forced the government to trial on the two counts of
aggravated identity theft. And he downplayed his culpability during the sentencing
proceedings by stating that “somebody just talked me into it.” That statement, the
district court found, “really doesn’t sound like someone who’s completely accepted
responsibility.”
With an offense level of 24 and a criminal history category of V, the final
guideline range for the counts of theft of public money was 92–115 months.
Although Sammour’s brother testified at the sentencing hearing that Sammour is a
good person who had performed charitable works in Haiti, the district court
sentenced him to 115 months of imprisonment, the top of the guideline range.
Applying the statutory sentencing factors, 18 U.S.C. § 3553(a), the district court
stressed Sammour’s extensive criminal history, which involved several violent
12
Case: 13-13962 Date Filed: 03/16/2016 Page: 13 of 29
crimes as well as property crimes that resembled his current offenses. The district
court concluded that a sentence of 115 months was needed to “promote[] respect
for the law” and to provide “an adequate deterrent.” It stated that it would have
imposed this sentence “irrespective of how the guidelines were scored.”
II. STANDARDS OF REVIEW
Several standards of review govern the issues on appeal. We review the
sufficiency of the evidence de novo. United States v. Hernandez, 433 F.3d 1328,
1332 (11th Cir. 2005). We also review de novo whether the jury instructions
constructively amended the indictment, United States v. Gutierrez, 745 F.3d 463,
473 (11th Cir. 2014), but when a defendant raises this argument for the first time
on appeal, we review it for plain error, United States v. Madden, 733 F.3d 1314,
1322 (11th Cir. 2013). We review the procedures used to address juror misconduct
for abuse of discretion, and we review a finding that a juror was not biased for
clear error. See United States v. Dominguez, 226 F.3d 1235, 1247 (11th Cir. 2000).
Finally, we review sentences for abuse of discretion, see United States v.
Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011), although we review the
application of the guidelines de novo and findings of fact for clear error, United
States v. Barrington, 648 F.3d 1178, 1194–95 (11th Cir. 2011).
13
Case: 13-13962 Date Filed: 03/16/2016 Page: 14 of 29
III. DISCUSSION
Sammour raises seven issues on appeal. Three pertain to his trial, and four to
his sentence. We address the trial issues first and the sentencing issues second.
A. Trial Issues
Sammour argues that we should vacate his convictions of aggravated
identity theft because the district court made three errors at trial. First, he contends
that the district court wrongly denied his motion for a judgment of acquittal based
on the insufficiency of the evidence. Second, he argues that the district court issued
a jury instruction that constructively amended the indictment. Third, he contends
that the district court abused its discretion in dealing with Juror 9. We discuss, and
reject, these arguments in turn.
1. Sufficient Evidence Supports the Convictions of Aggravated Identity
Theft.
Sammour argues that he cannot be convicted of aggravated identity theft
because the government failed to prove that the identifications belonged to real
persons or that Sammour knew they belonged to real persons. The government
must prove both elements beyond a reasonable doubt. See Flores-Figueroa v.
United States, 556 U.S. 646, 647 (2009). But we must affirm the jury’s verdict if
“any rational trier of fact could have found the[se] essential elements of the crime
beyond a reasonable doubt.” Musacchio v. United States, 136 S. Ct. 709, 715
(2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “[W]e view the
14
Case: 13-13962 Date Filed: 03/16/2016 Page: 15 of 29
evidence in the light most favorable to the prosecution and draw all reasonable
inferences and credibility choices in favor of the jury verdict.” United States v.
Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013). Sammour cannot clear this high
hurdle.
A rational jury could have found, beyond a reasonable doubt, that the
identifications belonged to real persons. Agent Cohen testified that the Service
does not issue a Treasury check for a tax return without a valid social security
number. And he determined that the social security numbers Sammour transferred
to Agent Qaqish belonged, in fact, to Alex Giorlando and Angie Huerta Gonzalez.
Alex Giorlando testified that the date of birth and social security number for “Alex
Giorland” were his date of birth and social security number, and Angie Gonzalez
testified that the social security number for “Angie H. Gonzales” was her social
security number. The probability that someone made up the names “Alex
Giorland” and “Angie H. Gonzales” and randomly assigned them the actual social
security numbers of Alex Giorlando and Angie Huerta Gonzalez is zero. Sammour
argues that the names on the identifications are misspelled, but the misspellings are
suspicious too. Agent Cohen testified that the Service verifies only the first four
letters of a filer’s last name. Someone who understood this process could slightly
misspell the filer’s name—here, only the last letters of “Giorlando” and
“Gonzalez” are misspelled—and avoid detection by the Service while maintaining
15
Case: 13-13962 Date Filed: 03/16/2016 Page: 16 of 29
plausible deniability. Unfortunately for Sammour, his deniability is not plausible.
A rational jury easily could have found that the stolen identifications for “Alex
Giorland” and “Angie H. Gonzales” belonged to real persons.
A rational jury also could have found, beyond a reasonable doubt, that
Sammour knew the stolen identifications belonged to real persons. The videotaped
meetings with Agent Qaqish revealed that Sammour had a sophisticated
understanding of the tax-fraud scheme. He explained that his cohorts “pick” their
victims “carefully” and target people who “wouldn’t have filed tax returns.” He
also explained that “we wait to make sure that whoever is gonna file has filed”
before attempting to file a fraudulent return. Sammour understood the scheme well
enough to boast to Agent Qaqish that he was “a hundred percent sure” the Treasury
checks were valid. Viewing this evidence in the light most favorable to the
government, a rational jury could have found that Sammour knew the
identifications he gave to Agent Qaqish belonged to real persons. Using stolen
identities was the central feature of the scheme.
2. The Jury Instructions Did Not Plainly Amend the Indictment.
Sammour contends that the jury instructions constructively amended the
indictment in violation of the Fifth Amendment. “A constructive amendment
‘occurs when the essential elements of the offense contained in the indictment are
altered to broaden the possible bases for conviction beyond what is contained in
16
Case: 13-13962 Date Filed: 03/16/2016 Page: 17 of 29
the indictment.’” Madden, 733 F.3d at 1318 (quoting United States v. Keller, 916
F.2d 628, 634 (11th Cir. 1990)). Sammour argues that the jury instructions
constructively amended the indictment by adding an additional means of
identification (“date of birth”) to the means listed in the indictment (“name and
social security number”). Sammour concedes that he did not raise this argument in
the district court and that we review it for plain error.
Sammour’s concession that he has raised this issue for the first time on
appeal is wise, but fatal. “[T]here can be no plain error where there is no precedent
from the Supreme Court or this Court directly resolving [an issue].” United States
v. Cavallo, 790 F.3d 1202, 1234 (11th Cir. 2015) (second alteration in original)
(quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)).
Sammour cannot identify any precedent establishing that a constructive
amendment occurs in this circumstance.
Neither this Court nor the Supreme Court has ever held that a jury
instruction for aggravated identity theft constructively amends the indictment when
it lists an additional means of identification. Sammour cites no such decision, and
we cannot find one. In United States v. Narog, we held that a jury instruction for
possession of a controlled substance constructively amended the indictment when
it changed “methamphetamine” to “some controlled substance.” 372 F.3d 1243,
1247–49 (11th Cir. 2004) (citing United States v. Weissman, 899 F.2d 1111 (11th
17
Case: 13-13962 Date Filed: 03/16/2016 Page: 18 of 29
Cir. 1990)). But Narog does not plainly extend to other crimes or circumstances.
See United States v. Dortch, 696 F.3d 1104, 1112–14 (11th Cir. 2012) (concluding
that a jury instruction for felon in possession of a firearm did not plainly amend the
indictment when it changed “a Taurus . . . pistol and an Arminius revolver” to “a
firearm”). In United States v. Baldwin, we suggested that, under Narog, a
constructive amendment would “potentially” occur if a jury instruction for
aggravated identity theft “allow[ed] a conviction based on the use of a different
means of identification” from the one listed in the indictment. 774 F.3d 711, 725
(11th Cir. 2014). But that equivocal dictum cannot establish “plain” error. United
States v. Lett, 483 F.3d 782, 790 (11th Cir. 2007); accord United States v. Whren,
111 F.3d 956, 960–61 (D.C. Cir. 1997) (“[I]t is not a plain error for a trial court not
to follow a mere dictum of the court of appeals.”). Some of our sister circuits draw
a distinction between a jury instruction that changes an element of the crime and a
jury instruction that merely changes a means of satisfying an element of the crime.
See, e.g., United States v. D’Amelio, 683 F.3d 412, 422 (2d Cir. 2012). “Date of
birth” is not an element of aggravated identity theft; it is a means of satisfying the
“means of identification” element. Altering a means does not constructively amend
the indictment, according to our sister circuits, because it does not alter an
“essential element” of the crime such that “the defendant may have been convicted
of an offense other than that charged in the indictment.” United States v. Robison,
18
Case: 13-13962 Date Filed: 03/16/2016 Page: 19 of 29
904 F.2d 365, 369 (6th Cir. 1990) (quoting United States v. Ford, 872 F.2d 1231,
1236 (6th Cir. 1989)); accord United States v. Patino, 962 F.2d 263, 266 (2d Cir.
1992). Because the law in this Circuit is unsettled and other courts have rejected
Sammour’s argument, we cannot say that the district court plainly erred. See
Dortch, 696 F.3d at 1112.
3. The District Court Did Not Abuse Its Discretion in Responding to the
Note from Juror 9.
Sammour argues that the district court abused its discretion by allowing
Juror 9 to remain on the jury even after her note expressed concerns that Sammour
was affiliated with al Qaeda. The district court allowed Juror 9 to remain on the
jury after questioning her outside the presence of the other jurors and finding that
she would be fair and impartial. Sammour contends that Juror 9 could not be
impartial and that the district court should have either dismissed her, declared a
mistrial, or warned her not to share her fears with the other jurors.
To prevail, Sammour must establish, based on a cold record, that the district
court abused its broad discretion despite its superior vantage point:
The most salient aspect of the law in this area is the breadth of
discretion given to judges who are called upon to deal with the
possibility of juror misconduct. District court judges deal with jurors
on a regular basis, and those judges are in the trenches when problems
arise. The problems that present themselves are seldom clearly
defined and a number of variables have to be considered. There are
often no obviously right or wrong answers to the questions that arise.
. . . . [T]he district court is in a better position to evaluate credibility,
as well as “the mood at trial and the predilections of the jury.”
19
Case: 13-13962 Date Filed: 03/16/2016 Page: 20 of 29
Dominguez, 226 F.3d at 1246–47 (citation omitted) (quoting United States v.
Harris, 908 F.2d 728, 734 (11th Cir. 1990)). When a district court finds that a juror
is not biased, our “deference . . . is at its pinnacle.” Skilling v. United States, 561
U.S. 358, 396 (2010). “[T]he determination is essentially one of credibility, and
therefore largely one of demeanor,” Yount, 467 U.S. at 1038, and “[i]t is here that
the [reviewing] court’s deference must operate,” id. at 1040. Accord Chiantese,
582 F.2d at 980. Sammour comes nowhere near satisfying this standard.
The district court did not clearly err in finding that Juror 9 could be fair and
impartial. After hearing her answers to its questions, the district court “believe[d]
her when she said that she would be fair.” Sammour argues that Juror 9 was
hesitant and looked like she might cry, but the district court disagreed. We have no
basis to overturn its finding: the “cold record” does not reveal the inflections in
Juror 9’s voice or her demeanor as she answered the questions. Yount, 467 U.S. at
1040. Furthermore, the district court took measures to allay Juror 9’s fears by
explaining that the case had nothing to do with terrorism and that her life was not
in any danger. It reasonably found that this discussion “quelled” her concerns,
especially because her concerns did not appear to be that serious to begin with. As
soon as the district court started questioning her, Juror 9 confessed that she is “just
paranoid.” And Juror 9 proved she was sensitive to the need to remain fair and
impartial. She silently slipped her note to the clerk so that the other jurors would
20
Case: 13-13962 Date Filed: 03/16/2016 Page: 21 of 29
not notice, and she did not share her fears with the other jurors because she “didn’t
want to sway [them].” When questioned, she confirmed that she would “do what’s
fair” in Sammour’s case. The district court found her credible, and nothing in the
record suggests that its finding was clearly erroneous.
Because the district court did not clearly err in finding that Juror 9 was
unbiased, it did not abuse its discretion by refusing to declare a mistrial or dismiss
her from the jury. Nor did it need to remind Juror 9 not to share her fears with the
other jurors. The whole tenor of its questioning informed Juror 9 that she should
keep her concerns to herself, and Juror 9 acknowledged that she understood why
when she said she “didn’t want to sway the rest of the jury.” The district court did
not abuse its discretion by failing to remind Juror 9 of something she already knew.
Sammour speculates that the other jurors may have harbored fears similar to
those of Juror 9, but a defendant alleging juror bias “must do more than speculate.”
United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990). Sammour never
challenged any other juror in the district court, which is “strong evidence that he
was convinced [they] were not biased.” Skilling, 561 U.S. at 396 (quoting Beck v.
Washington, 369 U.S. 541, 558 (1962)). He argues that the district court should
have questioned the other jurors individually to make sure they did not have fears
about al Qaeda. But such an approach could have backfired by raising concerns in
the minds of the jurors that were not there before. See United States v. Register,
21
Case: 13-13962 Date Filed: 03/16/2016 Page: 22 of 29
182 F.3d 820, 841 (11th Cir. 1999). In sum, we cannot say that the district court
abused its considerable discretion in responding to the note from Juror 9.
B. Sentencing Issues
Although Sammour raises arguments about his sentence of 24 months for
aggravated identity theft, those arguments are frivolous. The district court imposed
the statutory sentence for those counts, as it was required to do. See 18 U.S.C.
§ 1028A; U.S.S.G. § 2B1.6. No error occurred.
As for theft of public money, Sammour challenges his sentence of 115
months on four grounds. First, he argues that the district court should not have
applied the 4-level enhancement for 50+ victims. Second, he contends that the
district court should have applied the 2-level adjustment for acceptance of
responsibility. Third, Sammour contends that the district court should not have
departed upward from criminal history category II to V. Fourth, he argues that a
sentence of 115 months is substantively unreasonable. We address these arguments
in order. None is meritorious.
1. The District Court Did Not Abuse Its Discretion When It Applied the
Enhancement for 50+ Victims.
Sammour argues that the district court should not have increased his offense
level based on the number of victims. The 2012 guidelines instruct district courts
to increase the offense level for theft of public money by 4 if the offense “involved
50 or more victims.” U.S.S.G. § 2B1.1(b)(2)(B). A “victim” of theft of public
22
Case: 13-13962 Date Filed: 03/16/2016 Page: 23 of 29
money includes “any individual whose means of identification was used
unlawfully or without authority.” Id. § 2B1.1 cmt. n.4(E). The word “used” means
the “employment of something . . . for the purpose for which it is adapted,” Hall,
704 F.3d at 1322 (alteration in original) (quoting Black’s Law Dictionary 1681 (9th
ed. 2009)); it does not include the “mere transfer . . . without more,” id. Moreover,
the identifications must belong to “actual (i.e., not fictitious)” individuals. U.S.S.G.
§ 2B1.1 cmt. n.1. Sammour argues that his victims are not “victims” under the
guidelines because he merely transferred their identifications to Agent Qaqish. He
also argues that the government failed to prove that the identifications belonged to
50 real individuals. We reject both arguments.
Sammour’s victims qualify as “victims” under the guidelines because,
although Agent Qaqish never “used” their identifications to cash the Treasury
checks, Sammour’s cohorts “used” their identifications to obtain the Treasury
checks in the first place. Cf. Hall, 704 F.3d at 1322 (explaining that a defendant
“used” identifications when her conspirators applied for and obtained credit cards
with the identifying information). Under the guidelines, Sammour is responsible
for all “relevant conduct,” including the “reasonably foreseeable acts” of his
cohorts that occurred “in furtherance of” the tax-fraud scheme and “in preparation
for” his crimes. U.S.S.G. § 1B1.3. He is responsible for that conduct even though
he was never charged with a conspiracy, id., so long as the government can prove
23
Case: 13-13962 Date Filed: 03/16/2016 Page: 24 of 29
it by a preponderance of the evidence, see United States v. Faust, 456 F.3d 1342,
1347 (11th Cir. 2006). And it did so here. Sammour explained the entire scheme to
Agent Qaqish on the videotapes. Moreover, the presentence investigation report
stated that “[t]he scheme involved the use of stolen identities, specifically names,
social security numbers and dates of birth that are being used to file false income
tax returns,” (emphasis added), and Sammour admitted this fact by never objecting
to it, see United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009). Because
Sammour’s cohorts indisputably used the identifications to procure the Treasury
checks, Sammour’s victims count as “victims” under the guidelines.
The government also proved, by a preponderance of the evidence, that the
identifications belonged to 50 real individuals. For starters, the Internal Revenue
Service issued 75 Treasury checks, and Agent Cohen testified that the Service does
not issue a tax refund without a valid social security number. This fact alone
proves that Sammour’s victims were real individuals. See United States v. Philidor,
717 F.3d 883, 886 (11th Cir. 2013). Moreover, Agent Cohen heard from 47 of the
victims. The district court reasonably extrapolated that at least three of the
remaining victims, all of whom appeared in the Service’s database, would have
been verified too if they had current phone numbers. Indeed, targeting real victims
was the entire point of the scheme. The district court did not clearly err in finding
that Sammour had at least 50 victims.
24
Case: 13-13962 Date Filed: 03/16/2016 Page: 25 of 29
2. The District Court Did Not Abuse Its Discretion When It Denied an
Adjustment for Acceptance of Responsibility.
According to Sammour, the district court should have granted an adjustment
for acceptance of responsibility. Under the guidelines, a district court should
decrease the offense level by 2 if the defendant “clearly demonstrates acceptance
of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Sammour contends that he
accepted responsibility by pleading guilty to the counts of theft of public money
and by apologizing for his actions during the sentencing proceedings. But his
arguments do not overcome the “great deference” we owe the district court due to
its “unique position to evaluate a defendant’s acceptance of responsibility.” United
States v. Chukwura, 5 F.3d 1420, 1424 (11th Cir. 1993) (citing U.S.S.G. § 3E1.1
cmt. n.5).
The district court did not clearly err when it found that Sammour had not
accepted responsibility. Sammour apologized for his actions during the sentencing
proceedings, but his belated apology was entitled to little weight. See U.S.S.G.
§ 3E1.1 cmt. n.1(H); United States v. Jones, 899 F.2d 1097, 1101 (11th Cir. 1990),
overruled in part on other grounds by United States v. Morrill, 984 F.2d 1136(11th Cir. 1993) (en banc). And even though Sammour pleaded guilty to the counts
of theft of public money, a guilty plea “may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of responsibility.” U.S.S.G.
§ 3E1.1 cmt. n.3. For example, Sammour continued to downplay his culpability at
25
Case: 13-13962 Date Filed: 03/16/2016 Page: 26 of 29
the sentencing proceedings by stating that someone had “talked me into it.” Such
statements are inconsistent with accepting responsibility. See United States v.
Caraballo, 595 F.3d 1214, 1233 (11th Cir. 2010). Sammour also “frivolously
contest[ed] relevant conduct” by forcing the government to go to trial on the two
counts of aggravated identity theft. U.S.S.G. § 3E1.1 cmt. n.1(A). Throughout this
litigation, Sammour has denied that his victims are real persons and that he knew
they were real persons—despite being caught on camera stating precisely the
opposite. His denials are “inconsistent with acceptance of responsibility,” id., and
outweigh his guilty plea to the counts of theft of public money, id. § 3E1.1 cmt.
n.3. See United States v. Williams, 408 F.3d 745, 756–57 (11th Cir. 2005); United
States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997). Because Sammour has not
clearly accepted responsibility, the district court did not abuse its discretion by
denying the 2-level adjustment.
3. The District Court Did Not Abuse Its Discretion When It Departed
Upward to a Higher Criminal History Category.
Sammour contends that the district court abused its discretion when it
increased his criminal history category from II to V. A district court can depart
upward to a higher criminal history category if the lower category “substantially
underrepresents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). In
making this determination, the district court can rely on “[p]rior sentence(s) not
26
Case: 13-13962 Date Filed: 03/16/2016 Page: 27 of 29
used in computing the criminal history category.” Id. § 4A1.3(a)(2)(A). Sammour
argues that the district court used the wrong methodology when it departed upward
to category V. He also contends that category V is too high because his past crimes
are low-level and old. Both arguments fail.
The district court used a valid method when it departed upward. A district
court may apply an upward departure using the following “step-by-step
procedure”:
[T]he court must look first to the next criminal history category. If
that category adequately reflects the defendant’s past conduct, then
the court must state its findings and sentence the defendant within the
range for the new category. “If, on the other hand, the court decides
that this new category is still inadequate to reflect the defendant’s
criminal history, the court must look to the next highest category and
repeat its inquiry.”
United States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993) (citations omitted)
(quoting United States v. Johnson, 934 F.2d 1237, 1239–40 (11th Cir. 1991)). But
a district court may also, alternatively, assign criminal history points to the
unscored convictions and extrapolate the criminal history category that would have
applied. See United States v. Maurice, 69 F.3d 1553, 1559 (11th Cir. 1995). The
district court followed this alternative—and equally valid—approach and
explained its calculations. Sammour does not argue that any of its calculations
were erroneous.
27
Case: 13-13962 Date Filed: 03/16/2016 Page: 28 of 29
The nature of Sammour’s criminal history warranted an upward departure to
category V. Sammour argues that many of his past crimes are low-level and old,
but the record proves otherwise. Sammour’s history reflects a life of crime
consisting of numerous convictions for various offenses over the course of four
decades. Several of those convictions were for violent crimes. And several more
involved fraud-based crimes similar to the ones Sammour committed here. We
have affirmed large upward departures in similar circumstances. See, e.g., United
States v. McKinley, 732 F.3d 1291, 1298 (11th Cir. 2013); United States v. Jones,
289 F.3d 1260, 1267 (11th Cir. 2002). The district court did not abuse its discretion
in doing so here.
4. The Sentence Is Substantively Reasonable.
Sammour’s last argument is that his sentence is substantively unreasonable.
The district court concluded that 115 months of imprisonment was an appropriate
sentence for the eight counts of theft of public money due to Sammour’s extensive
criminal history. Sammour contends that the district court did not sufficiently
account for other factors like his charitable works. But “[t]he weight given to any
specific § 3553(a) factor is committed to the sound discretion of the district court,”
United States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015), and Sammour cannot
prove an abuse of discretion.
28
Case: 13-13962 Date Filed: 03/16/2016 Page: 29 of 29
Sammour’s sentence of 115 months is substantively reasonable. It is within
the guideline range, and we ordinarily expect such sentences to be reasonable. See
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). When “both the
sentencing judge and the Sentencing Commission . . . reached the same conclusion
as to the proper sentence in the particular case,” it “significantly increases the
likelihood that the sentence is a reasonable one.” Rita v. United States, 551 U.S.
338, 347 (2007). And a sentence of 115 months is far lower than the statutory
maximum sentence of 80 years, see 18 U.S.C. § 641, which further supports its
reasonableness, see McKinley, 732 F.3d at 1299. Moreover, the district court did
not abuse its discretion in weighing Sammour’s extensive criminal history more
heavily than the other factors. See United States v. Osorio-Moreno, No. 14-14447,
slip op. 1, 10–12 (11th Cir. Mar. 1, 2016); United States v. Rosales-Bruno, 789
F.3d 1249, 1263 (11th Cir. 2015). Despite Sammour’s charitable works, the district
court reasonably concluded that he needed a sentence at the top of the guideline
range to “promote respect for the law” and “afford adequate deterrence,” 18 U.S.C.
§ 3553(a)(2)(A)–(B). See United States v. Snipes, 611 F.3d 855, 872–73 (11th Cir.
2010). This Court “will not reweigh the factors.” Johnson, 803 F.3d at 620.
IV. CONCLUSION
We AFFIRM Sammour’s convictions and sentence.
29