U.S. v. Ameri

• Citation: 412 F.3d 893
• Decision Date: 22 July 2005
• Docket Number: No. 04-3296.,04-3296.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nasser Ahmed AMERI, also known as Nasir Almeri, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

412 F.3d 893

UNITED STATES of America, Plaintiff-Appellee, v. Nasser Ahmed AMERI, also known as Nasir Almeri, Defendant-Appellant.

No. 04-3296.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2005.

Filed: June 15, 2005.

Rehearing and Rehearing En Banc Denied July 22, 2005.

COPYRIGHT MATERIAL OMITTED

Omar F. Greene, Little Rock, Arkansas, for appellant.

H.E. (Bud) Cummins, Little Rock, Arkansas, for appellee.

Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Defendant-Appellant Nasser Ahmed Ameri appeals his conviction on eighteen counts related to production and possession of fraudulent documents, possession of document-making implements, social security fraud, theft of trade secrets (software), computer fraud, identity theft, possession of ammunition by an illegal alien, and making false statements. He argues that the district court¹ erred by finding him competent to stand trial, excluding him from the courtroom during his trial, and depriving him of his right to represent himself. He also argues that the evidence was insufficient to support the district court's finding of an amount of loss under the Sentencing Guidelines. Finally, he raises a Blakely/Booker sentencing issue that is related to the district court's finding regarding the amount of loss. We affirm.

I. Background

Mr. Ameri was an employee of a company hired by the State of Arkansas to develop and install secure document production software in facilities such as drivers' license stations. Mr. Ameri stole a copy of the software and used this software along with other tools of the trade to produce high-quality, false identification documents and to perpetrate various forms of fraud. He is a Yemeni national who, in the course of the investigation into his fraud and false document offenses, claimed to be a terrorist, claimed involvement with a plot to bomb the 2002 Winter Olympic Games in Salt Lake City, Utah, and identified numerous individuals purportedly involved in jihad-related activities. His claims regarding Salt Lake City and the named individuals were false. However, he made these claims less than six months after the September 11, 2001 attacks on the World Trade Center and the Pentagon, and the government took his claims seriously. This caused the government to expend considerable resources and disrupted the lives of the people he falsely named as terrorists.

The evidence against Mr. Ameri as to his various offenses was overwhelming and we need not recite it here. The important facts for this appeal relate to the manner in which the district court conducted the trial and the evidence that supported the district court's finding under U.S.S.G. § 2B1.1(b)(1) as to the amount of loss. We discuss these facts and issues below.

II. Trial Issues

Prior to the start of trial, the district court granted a government request for a psychological examination to determine Mr. Ameri's competency to stand trial. The government's examiners observed Mr. Ameri over a period of thirty days and found him to be free from mental disease or defect and competent to stand trial.

In pretrial motions, Mr. Ameri, on his own and through his second appointed attorney, alleged that FBI agents had drugged him with a "truth serum," made a videotape of an interview with him, and refused to disclose the videotape. The district court explored these issues in a hearing, found Mr. Ameri's allegations incredible, and denied his motions.

A confusing discussion then ensued. It appeared that Mr. Ameri challenged the court's jurisdiction, demanded discovery, demanded a continuance, and demanded to represent himself. The district court denied his requests for further discovery and a continuance. The district court then made clear the basis of its jurisdiction, explained the limited availability of discovery in criminal cases, and strongly encouraged Mr. Ameri to accept representation. The issue of representation was intertwined with Mr. Ameri's demand for discovery. He appeared concerned that the government attorneys had boxes of materials whereas his lawyer did not know all of the facts. Mr. Ameri, however, did not understand the rules of procedure and refused to agree not to disrupt the trial if allowed to proceed without counsel. The district court suggested that he accept the assistance of counsel, represent himself as to the facts and allow counsel to help him as to matters of law and procedure. Mr. Ameri objected and stated that since he didn't understand the rules of procedure, the trial would be unfair and the court "might as well just lock me in the cell, your Honor." The district court responded, "We're going to have a trial, and I note your objection and I overrule your objection to proceeding in the way we're going to proceed. Your exception is saved."

After a short recess, during which Mr. Ameri apparently declared that he did not want to be present for the trial, the district court questioned Mr. Ameri about participating in the trial. The district court initially told Mr. Ameri:

Here's what I'm going to do: I'm not going to order you to participate, but I'm going to order you to be here. And in case you change your mind and want to help your lawyer, I urge you to try to help in your defense. Because you will receive a fair trial, whether you think you will or not. You will receive a fair trial. I'm going to order you to be here. But if you are disruptive, if you jump up and start talking and interrupt, I will have you removed. I don't want to do that. I want you to be here so you can confront your accusers and so you can help your lawyer if you—your lawyer will need help from you. But I'm—all I'm doing, I'm ordering you at this point to be present, and you will be present during the proceedings until such time as you become disruptive or don't act right, and then I may remove you from the courtroom. I don't want to do that, because I want you to be here.

Mr. Ameri then stated, "Well your honor, how can I participate in an injustice fair trial, your Honor?"; "I really don't want to be participating in an injustice trial, your Honor. This is injustice."; "So, your Honor, I don't have a right to not be participating? Because I'm not consenting for participating, your Honor." The district court then again told Mr. Ameri that he was required to be present. Mr. Ameri protested and the following exchange took place:

Mr. Ameri: Your Honor, I'm not gonna allow them to give me injustice, your Honor. This is America. They can't do this to me. I gotta be in contempt of court. Throw me out, your Honor. I'm not going to participate in an injustice trial, your Honor.

The Court: In other words, you're going to be disruptive? You're going to jump up and talk during the trial?

Mr. Ameri: Well, how, your Honor, you going to let somebody in just you like this?

The Court: You have just earned your right to go to the lock-up. We'll be in recess. Let's bring the jury up. Let me tell you something: I'm going to inform the jury that you had an opportunity to be here, but you chose not to be here.

Mr. Ameri: I didn't choose, your Honor. It's just injustice, your Honor. It is unfair, your Honor.

Following another recess, the district court, the prosecutor, and Mr. Ameri's attorney discussed how to explain Mr. Ameri's absence to the jury. The district court decided to take extra time at recesses to allow Mr. Ameri's attorney to ask him if he had changed his mind about participating in the trial. In this discussion, Mr. Ameri's attorney stated, "I don't know necessarily how we could make it any—how I could soften the blow, but Mr. Ameri did have the right to participate; he just chose not to participate. I don't think we can say anything differently."

The attorneys and the court then discussed how to handle the issue of having a witness identify Mr. Ameri if Mr. Ameri was not present. In response to a suggestion that Mr. Ameri be brought into the courtroom merely for identification purposes, Mr. Ameri's attorney stated, "Your Honor, I would object to that. He has chosen not to participate. That is his right, and that would be a formal forced participation to bring him back in here."

Prior to the first day of the trial, the district court spoke with Mr. Ameri in the courtroom, and again, Mr. Ameri would not agree to participate. Prior to the second day of the trial, Mr. Ameri's counsel notified the court that she had discovered that the jail had not been supplying Mr. Ameri with an anti-depression drug that he was supposed to be receiving. Concerned that the absence of this drug might have rendered Mr. Ameri incompetent, the district court decided to have Mr. Ameri re-evaluated for competency, but continued with the trial.

Later in the trial, Mr. Ameri's attorney conveyed messages from Mr. Ameri to the district court:

Counsel: Your Honor, Mr. Ameri just wanted me to inform you, although he has not been a part of these proceedings, he wanted me to impress upon the Court that the Court should not be upset with him and hold that against him. So I wanted to make the Court aware of his concern regarding that.

The Court: But he does not want to be here?

Counsel: He does not want to be here because he does not believe he can receive a fair trial.

The Court: You can assure him that I'm not upset. He would have been entirely welcome had he exercised his right to be here. At the same time, if he wanted to exercise his right not to be here, I'm not going to fuss at him.

On a later day, a similar exchange took place in which counsel for Mr. Ameri conveyed Mr. Ameri's concern and assured the court that Mr. Ameri knew he had a right to be present but did not wish to be present.

The transcript of the discussions surrounding Mr. Ameri's requests, partially excerpted above, are confusing because Mr. Ameri repeatedly interrupted other speakers and made conflicting demands upon the court (a request to represent himself and a request to...