863 F.3d 885
D.C. Cir.2017Background
- Khan Mohammed was extradited from Afghanistan, tried in 2008, and convicted of international drug trafficking and narcoterrorism based largely on recorded conversations and testimony from a government confidential informant known as "Jaweed."
- Trial counsel expressed intent to contact witnesses in Afghanistan who could rebut the government’s portrayal of Mohammed as Taliban-connected but never contacted them despite receiving a contact list in discovery and being told by Mohammed of specific potential witnesses.
- Counsel sought a Lewis check of Jaweed’s criminal record (which returned nothing) but did not investigate potential bias or prior conflicts between Jaweed and Mohammed (e.g., local election defeat, failed marriage proposal, jirga dispute).
- At trial Jaweed’s testimony repeatedly interpreted Mohammed’s statements for the jury; counsel objected only once and did not lodge a standing objection or present defense witnesses.
- On initial appeal this court remanded for an evidentiary hearing on ineffective assistance; the district court denied relief, finding counsel’s inaction reasonable; on second appeal this court held counsel’s performance was constitutionally deficient for failing to investigate bias but remanded to assess prejudice as to the narcoterrorism count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel performed deficiently by failing to investigate potential bias of key witness Jaweed | Mohammed: counsel failed to follow up on leads, ignored contact list, and did not investigate obvious signs of bias; this was not strategic | Gov: counsel reasonably responded to what Mohammed specifically identified and investigation was not obviously necessary | Held: Deficient performance — counsel had duty to investigate and the complete failure to follow obvious leads was unreasonable |
| Whether counsel erred by failing to object / lodge a standing objection to Jaweed’s repeated interpretations of Mohammed’s statements | Mohammed: timely and standing objections would have limited Jaweed to his understanding and undermined weight of his testimony | Gov: testimony was admissible as witness’s understanding; objections not outcome-determinative | Held: Failure to object was subpar performance and part of broader failure to impeach Jaweed |
| Whether deficient performance prejudiced Mohammed as to drug trafficking conviction | Mohammed: effective impeachment of Jaweed could have changed jury’s view | Gov: recordings independently and unequivocally incriminated Mohammed | Held: No prejudice as to drug trafficking — recordings independently proved the offense |
| Whether deficient performance prejudiced Mohammed as to narcoterrorism conviction | Mohammed: Jaweed was the only clear link to the Taliban; impeachment could have prevented conviction on narcoterrorism theory | Gov: other evidence could support narcoterrorism verdict without Jaweed | Held: Prejudice cannot be confidently assessed on this record; remand for factfinding on what adequate investigation in 2008 would have uncovered and whether it would have changed the verdict on narcoterrorism |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test)
- Wiggins v. Smith, 539 U.S. 510 (counsel must investigate sufficiently to make informed tactical decisions)
- Porter v. McCollum, 558 U.S. 30 (counsel’s duty to investigate not obviated by uncooperative client)
- Rompilla v. Beard, 545 U.S. 374 (counsel must investigate available records even when client is obstructive)
- United States v. McDade, 699 F.3d 499 (investigation may be declined only when uncovered evidence would have limited value)
- United States v. Debango, 780 F.2d 81 (complete failure to investigate cannot be deemed trial strategy)
- United States v. Barbour, 813 F.2d 1232 (only after reasonable investigation can counsel make informed tactical choices)
- Griffin v. United States, 502 U.S. 46 (jury instructions and alternative theories of liability do not justify reversal absent adequate evidentiary support)