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Ineffective Assistance– trial counsel’s wholesale ineffective assistance in investigating evidence of key witness’ bias leads to overturning of narcoterrorism claim: United States v. Khan Mohammed, _ F.3d _ (D.C. Circuit, No. 16-3102, July 21, 2017).

In 2012, the D.C. Circuit affirmed on direct appeal Khan Mohammed’s sentence and conviction for drug trafficking and international terrorism, but remanded for an evidentiary hearing on his claim of ineffective assistance of counsel. United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012). Following an evidentiary hearing and a second direct appeal, the Circuit affirmed the conviction for drug trafficking but concluded that Mohammed’s trial 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.

After Mohammed, an Afghani national, was convicted of serious drug charges and the cause remanded for a hearing on his ineffective assistance claim, it was determined that trial counsel hadn’t followed up on representations that he intended to seek out witnesses in Afghanistan and travel there to interview them. In fact, he didn’t appear to make any effort to do that. Worse yet, he did not seek out witnesses whom Mr. Mohammed had identified as potentially able to support his claim that he wasn’t a Taliban member, contrary to the Government’s claim. Nor had he followed up on a Lewis-type request to seek out the criminal record of the Government’s key witness on that charge, one Jaweed. (Slip Op. at 3) (citing Lewis v. United States, 393 A.2d 109 (D.C. 1978)). And if that wasn’t enough, the panel pointed out that defense counsel evidently undertook the most perfunctory of effort to investigate the strong suggestion that Jaweed’s romantic interest in Mohammed’s sister had been spurned – a sign of potential bias. Nor had counsel explored various other tangible leads relating to bias, including Mohammed’s victory in a local election over Jaweed’s cousin and Jaweed’s involvement with a lawsuit involving Mohammed. (Slip Op. at 3-4).

At trial, Jaweed was the “pillar” and, in trial counsel’s later testimony, “‘bread and butter’” of the Government’s case. Defense counsel failed to probe Jaweed’s possible preexisting bias against Mohammed and called no witnesses. (Slip Op. at 4-5).

On remand, successor counsel presented the declaration of appellate counsel that by working the telephone, he had located no less than 28 witnesses against Jaweed. Of note, Mohammed’s former appellate lawyer found “witnesses [who] stated that Jaweed had a bad reputation for “criminal behavior and gangsterism,” with one witness adding that he was ‘a liar an an oath-breaker,’  and  that  Mohammed was a  well-regarded local leader who was not in the Taliban.” “Of particular note,” the panel observed, “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. 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.’ Rezwan said that he and others overheard Jaweed tell Mohammed: ‘I will not leave you alone even if it takes 20 years.’” (Slip Op. at 6).

On appeal, the panel (Rogers, Pillard, Millett, JJ) concluded that the district court had erroneously rejected Mohammed’s ineffective assistance theory, at least as to the narcoterrorism conviction. Judge Pillard wrote that in these types of cases, “‘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.”’” (Slip Op. at 6-7) (quoting Payne v. Stansberry, 760 F.3d 10, 13 (D.C. Cir.  2014) (quoting Strickland v.  Washington, 466 U.S.  668, 687-88, 694 (1984))). The standard of review of an ineffectiveness claim, Judge Pillard stated, was to review “‘for clear error any findings of  historical  fact  embedded  in  the  District  Court’s  conclusions  on  deficient  performance  and  prejudice,’ and  [to] review[] questions of law de novo”. (Slip Op. at 7) (quoting United States v. Nwoye, 824 F.3d 1129, 1135 n.4 (D.C. Cir. 2016)).

1A.  Turning first to the failure to investigate claim, Judge Pillard explained that “‘Where the case involves a failure to investigate, the “particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of   deference to counsel’s judgments.’” (Slip Op. at 7) quoting United States v. McDade, 699 F.3d 499, 506 (D.C. Cir. 2012). Thus “Counsel reasonably may decline to investigate when she or he determines that any potential information an investigation might uncover would have limited value or ‘could be easily attacked on cross-examination.’” (Slip Op. at 7-8) (quoting McDade, 699 F.3d at 507). But that rule didn’t apply here, for “the complete failure to investigate potential impeachment witnesses cannot be construed as a strategic decision on the part of counsel.” (Slip Op. at 7-8) (citing Reynoso v. Giurbino, 462 F.3d 1099, 1102 (9th Cir. 2006)). “‘It is especially important to investigate the case,’ because ‘[o]nly when reasonable investigation has been performed is counsel in a position to make informed tactical decisions.’” (Slip Op. at 8) (quoting United States v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987)).

Continuing onwards, the court of appeals described the case as involving “a complete failure to investigate” and catalogued trial counsel’s aforesaid numerous missteps in failing to investigate and pursue rich evidence of Jaweed’s potential bias against Mohammed, even though he knew that Jaweed would be a central witness against Mohammed. Indeed, the panel pointed out trial counsel’s concession below that he feared he was ineffective in representing his client. (Slip Op. at 8-9).  With remarkable understatement, Judge Pillard found that “In light of all that information, the possibility that Jaweed might be biased against Mohammed was clearly worth investigating.” (Slip Op. at 10).

This overall failure of diligence, the panel noted, extended to counsel’s failure to lodge a standing objection to aspects of Jaweed’s testimony where he purported to interpret Mohammed’s “state of mind” incident to numerous recorded conversations between them. Surprisingly, defense counsel let the prosecutor elicit numerous statements as to what Mohammed supposedly meant, rather than what Jaweed understood Mohammed was telling him. (Slip Op. at 11).

1B.  It didn’t end there, for the panel gently remonstrated with the Trial Judge for concluding in the face of all this evidence of lassitude that Mohammed had failed to show ineffective assistance. Per Judge Pillard, “We respectfully   disagree with the district court that counsel ‘was under no duty to investigate whether Jaweed was biased against Mohammed when the only information he had about this purported bias was the election.’” (Slip Op. at 10). “Any information about potential sources of bias in a witness as crucial as Jaweed should  have  led  to  further investigation.  Yet   counsel   did   not   investigate, apparently because he mistakenly believed he would need to travel to Afghanistan to do so.” (Id). As Judge Pillard summarized the law, “‘[C]ounsel has a duty to investigate, even if his or her client does not divulge relevant information,’ Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014), and counsel may not ‘ignore[] pertinent avenues for investigation of which he  should  have  been  aware.” Porter [v. McCollum], 558 U.S. [30] at 40 [2009].’”

1C.  The end result was that Mohammed’s conviction for drug dealing stood whereas the narcotrafficking charge was reversed. “In assessing prejudice,  the  ultimate  question  is  whether  Mohammed has shown a reasonable probability that adequate investigation would have enabled trial counsel to sow sufficient doubt  about  Jaweed’s  credibility  to  sway  even  “one  juror.” (Slip Op. at 11) (citing and quoting Hope v. Cartledge, 857 F.3d 518, 524 (4th Cir. 2017) (internal citations omitted)). Mohammed’s own tape-recorded words doomed the drug trafficking charge; “‘the recordings spoke for themselves and directly implicated Mohammed through his own unequivocal words and conduct.’” (Slip Op. at 11) (quoting Government’s Brief at 4)). Mohammed’s incautious comments came back to haunt him, at least insofar as the drug dealing was concerned” “Mohammed himself, speaking on the wiretap, disclosed the requisite knowledge or intent that the drugs he was trafficking would be imported to the United States.” (Slip Op. at 12).

A different case was made for the narcoterrorism charges. “Because Jaweed’s   testimony     provided the only unambiguous   link   between   Mohammed and the Taliban, however, it is reasonably probable that the jury would not have convicted Mohammed if Jaweed’s testimony could have been effectively undermined.” (Slip Op. at 12). Pointing to the diligent work of Mohammed’s former appellate counsel, who had uncovered such damning bias evidence by working the telephone, the Court of Appeals emphasized that the district judge’s inquiry on remand had been too narrow: “As appellate counsel’s inquiries illustrated, an adequate investigation would   involve   following   up   with   witnesses besides the four Mohammed specifically identified in an effort to identify anyone able to testify about what appears likely to be a potent  source  of  impeachment  evidence:    Mohammed’s role in Jaweed’s  jirga and Jaweed’s enraged  response.” (Slip Op. at 13). A remand was required to assess “what an adequate investigation in 2008 could have uncovered and how counsel could have used that information at trial (as fodder for cross-examination as well as direct testimony).” (Slip Op. at 14) (citing United States v. Cordova, 806 F.3d 1085, 1091 (D.C.  Cir.  2015) (no prejudice  based  in  part  on  appellants’  failure  to identify  how  their  cross-examination  might  have benefited  from additional information).

 

Nathaniel H. Nesbitt and Peter Spivack of Hogan Lovells get today’s tip of the hat for a masterful performance. And all due credit is extended to Shardul Desai, Mr. Mohammed’s former appellate counsel, whose diligence in locating potential witnesses must be noted.

  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.