United States v. Mohammed

863 F.3d 885

UNITED STATES of America, Appellee

v.Khan MOHAMMED, Appellant

No. 16-3102

United States Court of Appeals, District of Columbia Circuit.

Argued May 4, 2017

Decided July 21, 2017

Nathaniel H. Nesbitt argued the cause for appellant. With him on the briefs was Peter S. Spivack.

Vijay Shanker, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Trevor N. McFadden, Deputy Assistant Attorney General, and Matthew Robert Stiglitz, Attorney. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: Rogers, Millett and Pillard, Circuit Judges.

Pillard, Circuit Judge:

Appellant Khan Mohammed was extradited from Afghanistan to the United States and convicted, following a 2008 jury trial, of international drug trafficking and narcoterrorism, i.e. , using drug proceeds to fund terrorists or terrorism. This case comes to us on direct appeal a second time, after this court affirmed Mohammed's sentence and conviction but remanded for an evidentiary hearing on his claim of ineffective assistance of counsel. See United States v. Mohammed , 693 F.3d 192 (D.C. Cir. 2012). We conclude that the performance of Mohammed's trial counsel was constitutionally deficient. Counsel failed to investigate the possibility of impeaching the government's central witness as biased against Mohammed, despite ample indication that he should and could do so. Our review persuades us, however, that counsel's deficient performance did not prejudice Mohammed as to the drug trafficking charge. As to the narcoterrorism charge, we cannot on this record confidently assess prejudice, and therefore remand to the district court for further proceedings on that issue.

I.

We assume familiarity with our prior decision and the district court's opinion on remand. See United States v. Mohammed , No. 06-357, 2016 WL 3982447 (D.D.C. July 22, 2016). We recite here only those facts relevant to our disposition.

At a status conference more than two months before trial, Mohammed's trial counsel advised the district court that he intended to seek witnesses in Afghanistan on Mohammed's behalf, but noted that there were "very difficult obstacles in terms of finding witnesses, locating them, and then somehow bringing them to the United States under some type of parole visas." 2/25/08 Status Hearing Tr. at 9. Months later, on the eve of trial, counsel confirmed that he "did look into ... how do you even get [to Afghanistan], and who [from the office] was I going to take," but there were "no volunteers." 5/2/08 Ex Parte Hearing Tr. at 38. Ultimately, as counsel conceded, he failed to "follow through" on his previously expressed intent to contact witnesses in Afghanistan. Id. Although the government provided a contact list from Mohammed's phone book in discovery, counsel never attempted to call any potential witnesses in Afghanistan and, in fact, mistakenly represented that he "wasn't given telephone numbers." Id. at 37.

The district court also asked Mohammed himself whether he had told counsel to contact any potential witnesses in Afghanistan. 5/2/08 Ex Parte Hearing Tr. at 21. Mohammed responded that he had "asked [counsel] to bring my witnesses," and specifically identified four witnesses who would say that he was not associated with the Taliban. Id. at 21-22. Counsel confirmed Mohammed had given him those four names but apparently thought the only way he could have spoken with the potential witnesses would have been to travel to Afghanistan, which he concluded posed "insurmountable" difficulties. Id. at 36.

One of the key issues on which witnesses in Afghanistan might have shed light was the credibility of the government's confidential informant and central witness at trial, a man known by the pseudonym Jaweed. Mohammed's trial counsel was aware of the possibility that Jaweed had a criminal history that could be useful in undermining his credibility, as shown by his request that the government perform a Lewis check—pursuant to Lewis v. United States , 393 A.2d 109 (D.C. 1978) —into Jaweed's criminal history in Afghanistan. That check produced no governmental records on Jaweed and counsel did not further pursue the issue.

Counsel briefly raised the possibility of impeaching Jaweed as biased against Mohammed. The two men, hailing from the same village, had known each other for some time; indeed, Jaweed's mother once asked Mohammed if he would consider allowing Jaweed to marry Mohammed's sister, an inquiry that evidently did not yield the desired result for Jaweed. See Mohammed , 2016 WL 3982447, at *14. At a status conference a couple of weeks before trial, counsel noted that Jaweed had "been previously accused with a lawsuit." 4/22/08 Status Hearing Tr. at 6. But counsel represented (erroneously, it is now claimed) that the lawsuit did not involve Mohammed, and the district court advised that, barring some connection to Mohammed, evidence relating to the lawsuit would not be admissible to show bias. Id. at 5-8. The district court stated, however, that counsel would be free to explore possible bias arising from Mohammed's victory in a local election over Jaweed's cousin. See id. at 7-8. Counsel took no steps to investigate the election, Mohammed's potential connection to the lawsuit, or other possible sources of bias.

At trial, the government's case rested on two pillars: the recordings of Jaweed's undercover conversations with Mohammed, and Jaweed's own testimony, which addressed the meaning of those conversations and, more broadly, the two men's interactions. Jaweed's testimony was, as trial counsel later recalled, "the bread and butter of the case." 12/3/15 Evidentiary Hearing Tr. at 25. The government repeatedly asked Jaweed to clarify the meaning of exchanges between him and Mohammed. Mohammed identifies 118 such clarifications, but counsel objected only once, about halfway through. See Appellant Br. 7. On that occasion, the government asked Jaweed to clarify the meaning of Mohammed's statement, "I will, God willing, speak with them, this will be done and that, too, and the work will be ready." 5/12/08 A.M. Trial Tr. at 25. Counsel objected that the question called for speculation and lacked foundation. Id. at 25-26. The district court overruled the objection, explaining that, in its view, Jaweed was "entitled to say what he understands Khan Mohammed to be saying." Id. at 27. Jaweed then testified that Mohammed "was trying to say that he would see or speak with [Taliban commanders, and] the work of missiles and the opium would be done." Id.

Trial counsel's cross-examination of Jaweed focused on the possibility that Jaweed had monetary incentives—he was paid $8,000 for his work as an informant, see 5/13/08 A.M. Trial Tr. at 86-87—to testify against Mohammed. He did not probe any preexisting bias on Jaweed's part against Mohammed. Trial counsel called no defense witnesses.

Mohammed appealed on several grounds, including ineffective assistance of counsel. This court affirmed the conviction and sentence and remanded for the district court to hold an evidentiary hearing on the ineffectiveness claim. See Mohammed , 693 F.3d at 195, 204. On the initial appeal, we noted that "the thrust of Mohammed's argument" was that "counsel should have made some effort to learn if the [potential] witnesses could undermine Jaweed's credibility in general, by testifying, for example, that he had a reputation for dishonesty or that he harbored a grudge against Mohammed." Id. at 203. The court determined that, because "Jaweed's testimony arguably shaped how the jury understood Mohammed's words," counsel's failure to challenge Jaweed's credibility could have been prejudicial and a remand was necessary for the district court to develop evidence and decide the issue in the first instance. Id. at 204.

On remand, the district court received declarations from Mohammed's appellate counsel and his trial counsel and held an evidentiary hearing at which trial counsel and Mohammed testified. Mohammed's appellate counsel stated that, in 2011, while working on Mohammed's first appeal, he managed to interview 28 witnesses in Afghanistan over the phone. See Declaration of Shardul Desai ¶¶ 9-11 (Feb. 28, 2013). Those witnesses stated that Jaweed had a bad reputation for "criminal behavior and gangsterism," with one witness adding that he was "a liar and an oath-breaker," and that Mohammed was a well-regarded local leader who was not in the Taliban. Id. at ¶¶ 13-14, 20-21. Of particular note, one witness, Malek Rezwan, stated that he sat on a tribal arbitration council (jirga ) with Mohammed in which Jaweed was found to have stolen jewelry, opium, and money. Id. at ¶ 16. Rezwan recalled Jaweed being particularly "vengeful" toward Mohammed for casting his vote in support of a ruling against Jaweed because he thought Mohammed should have voted "along village lines." Id. Rezwan said that he and others overheard Jaweed tell Mohammed: "I will not leave you alone even if it takes 20 years." Id.

The district court rejected Mohammed's ineffectiveness claim principally on the ground that trial counsel reasonably responded to matters that Mohammed timely brought to his attention for possible investigation. In particular, the court focused on the four potential witnesses whom, it found, Mohammed specifically identified for counsel. See 2016 WL 3982447, at *17. The court concluded that counsel reasonably did not pursue those witnesses given the limited information he had, and that, in any event, Mohammed failed to establish that those witnesses would have provided helpful information. See id. at *23.

II.

To prevail on a claim of ineffective assistance of counsel, "the defendant must show that (1) his counsel's performance ‘fell below an objective standard of reasonableness,’ and (2) ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Payne v. Stansberry , 760 F.3d 10, 13 (D.C....