United States Court of Appeals, District of Columbia Circuit
May 4, 2017
from the United States District Court for the District of
Columbia (No. 1:06-cr-00357-1)
Nathaniel H. Nesbitt argued the cause for appellant. With him
on the briefs was Peter S. Spivack.
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.
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.
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
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.
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.
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.
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.
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