United States v. Sammour

• Decision Date: 16 March 2016
• Docket Number: No. 13–13962.,13–13962.
• Citation: 816 F.3d 1328
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nael SAMMOUR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

816 F.3d 1328

UNITED STATES of America, Plaintiff–Appellee,

v.Nael SAMMOUR, Defendant–Appellant.

No. 13–13962.

United States Court of Appeals, Eleventh Circuit.

March 16, 2016.

Kathleen Mary Salyer, Wifredo A. Ferrer, U.S. Attorney's Office, Miami, FL, Marc Anton, Richard O.I. Brown, U.S. Attorney's Office, Fort Lauderdale, FL, for Plaintiff–Appellee.

Richard Docobo, Richard Docobo, PA, Miami, FL, for Defendant–Appellant.

Before WILLIAM PRYOR and DUBINA, Circuit Judges, and ROBRENO,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

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, 104 S.Ct. 2885, 81 L.Ed.2d 847 (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.

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.

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."

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 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.

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.

?

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...