United States v. Mohammed ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 06-357 (CKK)
KHAN MOHAMMED,
Defendant.
MEMORANDUM OPINION
(July 22, 2016)
On May 15, 2008, Khan Mohammed (“Mohammed”) was convicted by a jury in this Court
of one count of distributing one kilogram or more of heroin intending or knowing that it will be
unlawfully imported into the United States (Count I) and one count of distributing a controlled
substance knowing or intending to provide anything of pecuniary value to a person or organization
that has engaged in terrorism or terrorist activity (Count II). This matter is before the Court on
remand from the United States Court of Appeals for the District of Columbia Circuit to hold an
evidentiary hearing on Mohammed’s ineffective assistance of counsel claim that was raised on
direct appeal. See United States v. Mohammed, 693 F.3d 192, 202-05 (D.C. Cir. 2012).
After the issue was remanded to this Court, Mohammed filed his [118] Motion to Vacate
His Conviction, or in the Alternative for Resentencing, Based on Ineffective Assistance of
Counsel, and his [137] Motion for Hearing on Pending Motion to Vacate Conviction or in the
Alternative for Resentencing. The government filed a [161] Motion to Re-Characterize
Defendant’s March 1, 2013 filing As a Motion Pursuant to 28 U.S.C. § 2255. All of the pending
motions are fully briefed. Pursuant to the Court’s Orders, the government filed affidavits from
Mohammed’s trial counsel, Carlos J. Vanegas and Danielle C. Jahn, and the Court held an
evidentiary hearing on December 3, 2015, regarding Mohammed’s ineffective assistance of
counsel claim.
Upon consideration of the parties’ submissions, 1 the evidence provided during the
evidentiary hearing, the relevant authorities, and the record as a whole, the Court finds no grounds
for setting aside Mohammed’s conviction and sentence at this time. For the reasons described
herein, the Court shall DENY Mohammed’s [118] Motion to Vacate His Conviction, or in the
Alternative for Resentencing, Based on Ineffective Assistance of Counsel, DENY AS MOOT
Mohammed’s [137] Motion for Hearing on Pending Motion to Vacate Conviction or in the
Alternative for Resentencing, and DENY the Government’s [161] Motion to Re-Characterize
Defendant’s March 1, 2013 filing As a Motion Pursuant to 28 U.S.C. § 2255.
I. BACKGROUND
1
While the Court renders its decision today on the record as a whole, its consideration has
focused on the following documents, listed in chronological order of their filing: Def.’s Mot. to
Vacate His Conviction, or in the Alt. for Resentencing (“Def.’s Mot. to Vacate”), ECF No. [118];
Govt.’s Sld. Opp’n to Def.’s Mot. to Vacate (“Govt.’s Sld. Opp’n”), ECF No. [123]; Def.’s Sld.
Reply to Govt.’s Opp’n to Def.’s Mot. to Vacate (“Def.’s Sld. Reply”), ECF No. [128]; Def.’s
Mot. for Hrg. On Pending Mot. to Vacate Conviction or in the Alternative for Resentencing
(“Def.’s Mot. for Hrg.”), ECF No. [137]; Govt.’s Resp. to Def.’s Mot. for Hrg. (“Govt.’s Resp. to
Def.’s Mot. for Hrg.”), ECF No. [138]; Def.’s Reply to Govt.’s Resp. to his Mot. for Hrg. (“Def.’s
Reply to Mot. for Hrg.”), ECF No. [139]; Def.’s Notice in Resp. to the Ct.’s Order of May 8, 2015
(“Def.’s Notice”), ECF No. [142]; Govt.’s Notice In Resp. to Ct.’s Order of May 8, 2015 (“Govt.’s
Notice”), ECF No. [149]; Def.’s Resp. to Govt.’s Notice of July 23, 2015, & the Accomp. Decls.
of Carlos Vanegas & Danielle Jahn (“Def.’s Resp. to Govt.’s Notice”), ECF No. [152]; Govt.’s
Resp. to Def.’s Sept. 2, 2015 Filing (“Govt.’s Resp. to Def.’s Resp.”), ECF No, [153]; Govt.’s
Mot. to Re-Characterize Def.’s Mar. 1, 2013 Filings as Mot. Pursuant to 18 U.S.C. § 2255
(“Govt.’s Mot. to Re-Characterize Def.’s Mot. as § 2255”), ECF No. [161]; Def.’s Opp’n to
Govt.’s Mot. to Re-Characterize Mar. 1, 2013, Filing as a Mot. Pursuant to 18 U.S.C. § 2255
(“Def.’s Opp’n to Govt.’s Mot. to Re-Characterize Def.’s Mot. as § 2255”), ECF No. [162];
Govt.’s Reply to Def.’s Dec. 21, 2015 Opp’n (“Govt.’s Reply to Mot. to Re-Characterize Def.’s
Mot. as § 2255”), ECF No. [163]; evidence presented at trial and at the evidentiary hearing held
on December 3, 2015, as well as transcripts of status and evidentiary hearings and trial.
2
This matter comes before the Court on remand from the United States Court of Appeals
for the District of Columbia Circuit (“D.C. Circuit”), which summarized the factual scenario
leading to the indictment in the instant action:
While living in Pakistan in 2006, a man named Jaweed, who hailed from the village
of Geratak in Afghanistan’s Nangarhar province, fell in with Abdul Rahman, a
former Taliban official for the Jalalabad province of Afghanistan also living in
Pakistan. Rahman was plotting an attack on the Jalalabad airfield, a strategic NATO
airbase in eastern Afghanistan, and instructed Jaweed to return to Geratak and
contact a fellow villager, Khan Mohammed, who was also involved in the plot and
needed help. Jaweed did as he was told and visited Mohammed, who brought him
into the planning of the attack, directing him to obtain the missiles that would be
used in the strike.
But Jaweed soon turned against Rahman and Mohammed and disclosed the plot to
Afghan authorities. The Afghan police persuaded Jaweed to continue his role in the
plot, but to become their informant. When primary responsibility for the
investigation was turned over to agents of the U.S. Drug Enforcement
Administration (DEA) deployed in Nangarhar, Jaweed worked with them as well.
The DEA agents wired Jaweed and recorded several of his conversations with
Mohammed in August and September 2006.
In the first of those conversations, Mohammed discussed with Jaweed details of the
attack on the airfield and claimed that he had not only the same purpose as Rahman,
but the same authority. Hearing his plans and his boast, the DEA decided to arrest
Mohammed soon after Jaweed had given him the missiles. Concern about losing
control of the missiles once they were in Mohammed’s hands, however, led to a
different strategy. The DEA would arrest Mohammed for narcotics trafficking.
Following this plan, Jaweed told Mohammed he had a friend looking for opium.
Mohammed replied that he knew a source who could supply as much as Jaweed’s
friend needed. Jaweed and Mohammed met three more times to iron out details,
such as the price for the opium and Mohammed’s commission. These discussions
also included plans for the attack on the airfield. For example, during one of the
meetings Mohammed said they needed a car to secure the missiles. See Government
Trial Ex. 2C (Mohammed, stating that they would “tightly and firmly load [the
missiles] in our car”). Eleven days later, Mohammed announced at another meeting
that he would use the profits from the drug sale to buy a car, which could help carry
out more drug deals.
The opium deal went off without a hitch. Jaweed accompanied Mohammed to a
local bazaar where Mohammed negotiated the sale with his source. The next day,
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Jaweed accompanied Mohammed to the seller’s home and secretly videotaped
Mohammed inspecting, paying for, and taking away the opium he then sold to
Jaweed. Pleased with the results, the DEA agents told Jaweed to orchestrate another
sale, this time for heroin. When Jaweed raised the idea, Mohammed readily agreed
and acquired almost two kilograms of heroin, which he then sold to Jaweed.
Mohammed was enthused by the prospect of how much money their newly formed
drug business could make. When Jaweed told Mohammed that his friend would
send the opium and heroin to the United States, Mohammed declared, “Good, may
God turn all the infidels to dead-corpses.” Government Trial Ex. 2H. Their
“common goal,” Mohammed told Jaweed, was to eliminate the “infidels” either “by
opium or by shooting.” Id.
United States v. Mohammed, 693 F.3d 192, 195-96 (D.C. Cir. 2012). On December 13, 2006, a
federal grand jury indicted Defendant Khan Mohammed for distributing one kilogram or more of
heroin intending or knowing that it will be unlawfully imported into the United States in violation
of 21 U.S.C. §§ 959(a)(1)-(2), 960(b)(1)(A) and 18 U.S.C. § 2 (“Count I”). Indictment (Dec. 13,
2006), ECF No. [1]. Mohammed was arrested and extradited to the United States on November 5,
2007. On January 23, 2008, the government filed a Superseding Indictment adding a second count
of distributing a controlled substance knowing or intending to provide anything of pecuniary value
to a person and organization that has engaged or engages in terrorism or terrorist activity in
violation of 21 U.S.C. § 841(a) (“narcoterrorism charge”). Superseding Indictment (Jan. 23,
2008), ECF No. [18].
The matter proceeded to trial in this Court, and on May 15, 2008, a jury convicted
Mohammed on both counts of the indictment. See Verdict Form, ECF No. [62]. On December
22, 2008, this Court sentenced Mohammed to a term of life imprisonment on Counts I and II to
run concurrently. Judgment in a Crim. Case at 3, ECF No. [84]. Mohammed currently is serving
his sentence.
4
Mohammed filed a timely appeal and, on September 4, 2012, the D.C. Circuit upheld
Mohammed’s conviction in a published opinion. See generally Mohammed, 693 F.3d 192.
However, the D.C. Circuit also remanded the matter to this Court to hold an evidentiary hearing
on the claim of ineffective assistance of counsel raised by Mohammed on appeal. Id. at 195.
On direct appeal, Mohammed argued that his trial counsel was ineffective for failing to
adequately investigate certain evidence that Mohammed asserts would have strengthened his
defense. Specifically, Mohammed argued that despite identifying potential defense witnesses to
his trial counsel, his counsel failed to contact these potential witnesses from Mohammed’s village
in Afghanistan whom Mohammed claimed could bolster his character and impugn Jaweed’s
character. See id. at 202. Ultimately, the D.C. Circuit found that Mohammed raised a colorable
claim for ineffective assistance of counsel and the trial record did not conclusively show whether
Mohammed was entitled to relief. Id. at 204. As such, the D.C. Circuit remanded the ineffective
assistance of counsel claim to this Court to hold an evidentiary hearing and “test [Mohammed’s]
allegations further.” Id.
After the matter was remanded to this Court, Mohammed filed his Motion to Vacate his
Conviction, or in the Alternative for Resentencing which currently is pending before the Court.
Mohammed’s motion is premised on ineffective assistance of counsel claims related to his trial
counsel, Carlos J. Vanegas and Danielle C. Jahn. Specifically, Mohammed claims that his trial
counsel rendered him ineffective assistance by: (1) failing to conduct a proper pre-trial
investigation; (2) failing to challenge a government witness’s “interpretations” of taped evidence
that was introduced at trial; and (3) failing to raise a duress argument at the time of sentencing.
5
II. LEGAL STANDARD
A defendant claiming ineffective assistance of counsel must show (1) “that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347,
1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the
petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said
to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562
U.S. 86, 104 (2011). “The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions . . . . [I]nquiry into counsel’s conversations
with the defendant may be critical to a proper assessment of . . . counsel’s other litigation
decisions.” Strickland, 466 U.S. at 691. In evaluating ineffective assistance of counsel claims,
the Court must give consideration to “counsel’s overall performance,” Kimmelman v. Morrison,
477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689. Moreover,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
III. DISCUSSION
Mohammed raises three ineffective assistance of counsel claims, alleging his trial counsel:
(1) failed to conduct a proper pre-trial investigation; (2) failed to challenge a government witness’s
6
“interpretations” of taped evidence that was introduced at trial; and (3) failed to raise a duress
argument at the time of sentencing. The Court shall address each claim in turn.
The Court notes that Mohammed was represented at trial by both Vanegas and Jahn.
However, Jahn first entered her appearance in this matter on April 25, 2008, less than two weeks
before jury selection commenced. She also testified that she first met with Mohammed
approximately one week prior to entering her appearance and never met with Mohammed without
Vanegas present. Tr. 63:9-12, 64:15-16 (Dec. 3, 2015). Jahn’s role in this matter was as the junior
attorney who was tasked with assisting with trial. Id. 64:15-16. In light of Jahn’s limited role in
Mohammed’s representation, the Court focuses its discussion on Vanegas’ representation of
Mohammed.
A. Pretrial Investigation of Defense Witnesses
Mohammed first alleges that his trial counsel failed to conduct any pretrial investigation of
witnesses who could have impeached the testimony of government witness Jaweed and Jaweed’s
interpretations of the recordings admitted into evidence at trial. Def.’s Mot. to Vacate at 11, ECF
No. [118]. As the D.C. Circuit explained, “[t]he key to Mohammed’s claim is whether his
attorney’s less-than-thorough pre-trial investigation was supported by ‘reasonable professional
judgments.’” Mohammed, 693 F.3d at 203. The D.C. Circuit provided that it remanded the matter
to this Court “to give fuller context to the decisions counsel made, such as what Mohammed told
his attorney while preparing his defense or what his attorney may have uncovered himself during
trial preparation.” Id.
It is undisputed that Mohammed requested that Vanegas contact witnesses in Afghanistan
prior to trial. Tr. 26:6-15, 81:9-11, 38:1-5, 56:12-16, 119:6-13 (Dec. 3, 2015). There are three
7
specific discussions regarding defense witnesses in Afghanistan that took place on the record prior
to trial. When Vanegas made his first request for a continuance which was granted, Vanegas
alluded to and spoke in general terms about exploring testimony from witnesses in Afghanistan.
At the second request for a continuance, four specific names were discussed. Ultimately, at the
evidentiary hearing post trial, Mohammed testified that he provided Vanegas with the names of
three different individuals during trial preparation. In addition to these discussions, the pre-trial
record also demonstrates that Vanegas explored Mohammed’s allegation that Jaweed had a
conviction for robbery or theft, and on April 22, 2008, Vanegas noted that Jaweed may have a
vendetta against Mohammed due to the results of an election in their village. At the evidentiary
hearing, Mohammed and Vanegas provided conflicting accounts as to what testimony Mohammed
informed Vanegas that the witnesses might provide. Given that this Court is tasked with evaluating
the reasonableness of trial counsel’s performance in light of the information before him at that
time, the Court shall discuss the context in which these decisions were made and Vanegas’
rationale for his decisions.
First, the Court shall discuss the information in the record regarding Mohammed’s request
that Vanegas contact potential witnesses in Afghanistan leading up to trial. Second, the Court shall
discuss new information gleaned while this issue has been on remand, from a declaration submitted
by Mohammed’s appellate counsel, from the declarations submitted by Mohammed’s trial counsel,
and from the testimony given during the evidentiary hearing held in this matter. Upon
consideration of the record and the evidence before it, and for the reasons described herein, the
Court has determined that Vanegas’ pre-trial investigation was supported by reasonable
professional judgments and that Mohammed has failed to establish that he was prejudiced by
8
Vanegas’ failure to contact the witnesses whom he identified prior to trial.
1. Pre-Trial Record Reflects Mohammed’s Request for Defense Witnesses from
Afghanistan
On November 5, 2007, this matter came before the court for a return on a bench warrant
and an arraignment. At that time, Magistrate Judge Alan Kay appointed Vanegas to represent
Mohammed in this proceeding. During the early phases of Vanegas’ representation of
Mohammed, Mohammed participated in two unsuccessful debriefings with the government. Tr.
11:21-24, 13:1-10 (Dec 3, 2015). Mohammed then rejected a plea offer extended to him by the
government. Tr. 26:14-22 (Nov. 20, 2007); Tr. 4:3-18, 5:14-25, 6:18—7:3 (Jan. 29, 2008); Tr.
4:18—8:9, 21:2—23:16 (Feb. 4, 2008); Tr. 9:14—10:10 (Feb. 25, 2008); Tr. 15:3—16:16 (Mar.
20, 2008); Tr. 48:20—50:14, 50:23—82:9 (Apr. 22, 2008); Tr. 13:3-16 (Dec. 3, 2015). On January
23, 2008, the government, after prosecutors traveled to Afghanistan, filed a superseding indictment
that added the narcoterrorism charge. Tr. 13:70-10; see also Superseding Indictment (Jan. 23,
2008).
a. Request for a Continuance of February 25, 2008, Trial Date
The matter was originally set for trial on February 25, 2008. Min. Order (Dec. 13, 2007).
However, on February 4, 2008, Vanegas, after consulting with Mohammed and with Mohammed’s
express agreement, requested a three-month continuance of the trial date. Tr. 32:10-13, 35:4-12
(Feb. 4, 2008). The basis for the request was to allow more time for Vanegas and Mohammed to
systematically review transcripts provided as part of discovery with the assistance of a Pashto
interpreter, to tend to some health issues related to Mohammed, to research and respond to
Mohammed’s legal questions regarding the applicability of United States’ laws to foreign nationals
9
for conduct taking place outside of the United States, and to discuss the possibility of an Alford
plea. Id. 29:12—31:12. At that hearing, Vanegas explained that he had invested a significant
amount of time in trying to resolve the case short of trial but at that point he felt it prudent to focus
on trial preparation. Id. 29:21—30:4, 31:7-12. Based on this request, the Court continued the trial
until May 5, 2008. 2 Id. 43:7-12. As such, Mohammed’s request for witnesses was not the basis
for the first request for a continuance as this issue had not yet been raised by Mohammed.
b. February 25, 2008, Status Hearing
At the next status hearing, held on February 25, 2008, Vanegas expressly brought up the
issue of potentially bringing defense witnesses to the United States. Vanegas explained:
[T]he only new issue that I see that has arisen is the issue with respect to witnesses
that Mr. Mohammed would like to be at his trial. And so I will look into the practical
issues and the resources available to try to find those witnesses and to bring them
to the United States, and then the legal support on behalf of bringing those
witnesses.
Tr. 14:1-7 (Feb. 25, 2008). During that hearing, Vanegas also indicated that he was considering
filing some type of motion with respect to these witnesses, noting that “it presents 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,” as it involved contacting witnesses in a war zone.
Id. 9:4-7. Vanegas stated that he planned to speak with the prosecutor and the Federal Public
Defender for the District of Columbia as he would likely need the government’s and/or the Court’s
assistance in obtaining defense witnesses and needed to explore the legal basis for making such a
request. Id. 9:8-13, 24:12-19. As such, the record reflects that Mohammed had raised this issue to
2
The Court later set May 2, 2008, as the first day of voir dire. Min. Order (Mar. 20,
2008).
10
Vanegas at least as early as February 25, 2008, but not earlier. However, there are no specifics in
the record at that time regarding what information Mohammed indicated to Vanegas that the
potential witnesses might provide and, importantly, that has not been clarified post-trial. Even
post-trial, the record is devoid as to what, if anything, Mohammed told Vanegas these witnesses
would state. All that is in the record is that Mohammed wanted witnesses from Afghanistan.
c. Government’s Motion in Limine and Mohammed’s Request for Lewis Check
On February 22, 2008, shortly before that status hearing, the government filed a Motion in
Limine to Preclude Improper Impeachment with Extrinsic Evidence. See generally Govt.’s Mot.
in Limine to Preclude Improper Impeachment with Extrinsic Evid. (“Govt.’s Mot. in Limine”),
ECF No. [21]. In the motion, the government asserted that while being held in military custody
pending extradition, Mohammed made claims in an attempt to ascribe a motive for Jaweed to
fabricate evidence or lie, or otherwise to impugn Jaweed’s credibility. For example, the
government indicated that Mohammed stated that Jaweed “had been convicted of theft, had spent
several months in jail, and was set to serve an 18 year sentence when he was released after people
from his village vouched for him.” Id. at 2. The government moved the Court to exclude any
allegation of theft against Jaweed at trial pursuant to Federal Rule of Evidence 608(b). In its
motion, the government indicated that Jaweed denied these accusations, stating that he was
accused of theft some years prior, but that he was not arrested, incarcerated, or convicted and that
another man ultimately was found to have committed the offense. Id. at 2 n.2.
On March 10, 2008, Mohammed filed an opposition to the government’s motion and
11
requested that the government conduct a Lewis criminal background check on Jaweed. 3 In the
opposition, Vanegas represented:
Undersigned counsel has a good faith belief that the confidential source was
charged and convicted sometime during the summer or autumn of 2005. The charge
and conviction were lodged and archived in the Prosecutor’s Office in the city of
Jalalabad in Nangarhar Province, Afghanistan. Jalalabad is 90 miles from Kabul,
the capital of Afghanistan, and accessible to United States law enforcement and
military personnel who can properly investigate [Jaweed’s] conviction.
Def.’s Opp’n to Govt.’s Mot. to Preclude Improper Impeachment and Request for a Lewis Crim.
Background Check of Confid. Source (“Def.’s Opp’n to Mot. in Limine”) at 2, ECF No. [27]. The
government filed a reply to its motion and addressed Mohammed’s request that the government
conduct a Lewis check on Jaweed. In its response, the government reported:
On Friday, March 14, 2008, DEA agents in Kabul, Afghanistan were tasked with
contacting Afghan authorities in Jalalabad, Nangarhar Province, to determine what,
if any, criminal record the witness in question had, including arrests, prosecutions
or convictions. On April 3, 2008, the DEA reported back that a request for that
information had been made through Afghan authorities, who reported that
according to Colonel Asif Khan, Chief of Afghanistan’s Counter Narcotics Police
in Nangarhar Province, a review of the province’s records was negative for any
criminal history.
Govt.’s Resp. to Def.’s Opp’n to Govt.’s Mot. in Limine & His Request for a Lewis Check
(“Govt.’s Resp. to Mot. in Limine”) at 2, ECF No. [32].
On April 22, 2008, during a status hearing, the parties discussed the government’s motion
in limine in light of the results of the Lewis check. Vanegas noted that during the audio recordings
that the government sought to introduce during trial, Jaweed mentioned on two separate occasions
3
As Mohammed described in his opposition, a Lewis check is based on the Court of
Appeals for the District of Columbia’s opinion in Lewis v. United States, 393 A.2d 109 (D.C.
1978).
12
that he had previously been accused with a lawsuit. Tr. 5:24—6:9 (Apr. 22, 2008). Notably, in
the presence of Mohammed, the Court specifically asked Vanegas whether Mohammed was at all
involved in the suit to which Vanegas answered, “It does not involve my client.” Id. 6:10:13.
Vanegas mentioned the possibility that he might present evidence of Jaweed’s bias towards
Mohammed. Vanegas explained:
[W]ith respect to a personal vendetta that he may have against Mr. Mohammed, is
that Mr. Mohammed was elected a tribal chief in the area in which both of these
gentlemen are from. They’ve known each other since they were children.
And as a result of an election regarding Mr. Mohammed being elected tribal chief,
there is some issues arose from the fact that the confidential informant was
supporting Mr. Mohammed’s opponent for the position of tribal chief.
Id. 7:7-16. The Court noted that there was no impediment to Vanegas exploring Jaweed’s potential
motivations for testifying against Mohammed. However, specifically with respect to the issue of
Jaweed’s prior legal history, the Court indicated that this appeared to be separate from the bias
issue because Mohammed was not involved in the lawsuit. The Court emphasized the point that
Mohammed’s direct involvement in the lawsuit would make a difference in terms of the Court’s
analysis of the admissibility of this evidence. Indeed, the Court indicated, “[I]f it involved Mr.
Mohammed, it might be a different issue, even if he didn’t get actually arrested or convicted, but
it sounds like he may have been accused by somebody but it never went anywhere because there’s
no arrests and no convictions.” Id. 8:13-18. The Court also noted, “But I think to present it as bias,
under the rubric of bias you have to show there’s some ill feeling towards him because Mr.
Mohammed is involved in this accusation in some way, or that the prosecution or whoever is in
the prosecution’s shoes would in some way be helpful with this accusation since he doesn’t have
anything pending in Afghanistan.” Id. 8:25—9:6. As such, as of April 22, 2008, it appears
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Mohammed had raised with Vanegas that Jaweed may be biased against him based on the fact that
Mohammed won an election over a candidate whom Jaweed supported, but Mohammed had not
indicated to Vanegas that he was in any way involved in any lawsuit against Jaweed. Moreover,
in Mohammed’s presence, the Court stressed that if Mohammed was involved in any way with
these accusations even if there was no formal arrest or conviction, it would present a different issue
for trial purposes.
After reviewing the information provided by the parties, the Court required the government
to provide the Court with a transcript of Jaweed’s statements regarding the theft allegation in
question which clearly did not include an admission of this conduct. The Court also directed
defense counsel to file by April 25, 2008, an opposition setting forth a legal basis for permitting a
line of inquiry into the allegations of past criminal conduct given the result of the Lewis check
indicating that Jaweed did not have a criminal history. 4 Min. Order (Apr. 22, 2008). At the next
hearing on April 28, 2008, the Court noted that Vanegas had notified chambers that he would not
be filing an opposition to the government’s motion in limine based on the results of the Lewis
check and, accordingly, that he would not pursue this line of questioning at trial. Min. Order (Apr.
28. 2008); Tr. 4:19—5:1 (Apr. 28, 2008). As such, the Court issued an order granting the
government’s motion in limine in light of the results of the Lewis check and the fact that the motion
was no longer opposed by Mohammed.
The Court notes that Mohammed has now raised post-trial claims that there would be
4
The parties also had several discussions on the record with the Court regarding the
pending motion. See Tr. 5:12—7:19 (Mar. 11, 2008); Tr. 3:20—5:11 (Mar 20, 2008); Tr. 5:2—
14:25 (Apr. 22, 2008).
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evidence of Jaweed’s criminal conduct involving this alleged theft/robbery, even though he
abandoned on the record his request that this allegation of a conviction for theft be used prior to
trial. Moreover, Mohammed also now alleges that he had a role in the resolution of the
robbery/theft accusation because he served as a mediator during the jirga addressing that
accusation, contrary to several representations on the record that Mohammed was not involved.
d. Mohammed’s Request for a Continuance of May 2, 2008, Trial Date
On May 1, 2008, Mohammed filed a Motion to Continue Trial, asserting the government
had provided discovery on April 29, 2008, that set forth a new allegation that Mohammed had a
significant role in the Taliban organization. Def.’s Mot. to Cont. Trial at 3, ECF No. [47]. The
basis of this allegation was that Jaweed was contacted by two leaders of the Taliban while in
Pakistan and instructed that Mohammed was their point of contact in Afghanistan. Id. While the
names of the individuals were previously provided to defense counsel, Vanegas asserted that the
government had not disclosed that these people were Taliban leaders and, as such, Vanegas was
not aware that the government would seek to link Taliban leaders in Pakistan to the crimes charged
against Mohammed. Id. at 4. That same day, the Court held a conference call with the parties to
determine whether or not to bring the prospective jurors in on the following day to begin jury
selection. During a conference call, Vanegas indicated that he was requesting a three-month
continuance in order to follow up, make requests, and investigate the issues that were not
previously raised by the government. Tr. 4:1-5 (May 1, 2008). Ultimately, the Court determined
that it would not call the jury for the following day in order to hold a more complete discussion on
the record in Mohammed’s presence regarding the request to continue the trial with the assistance
of an interpreter.
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Subsequently, at the status hearing held on May 2, 2008, the parties discussed
Mohammed’s request for a continuance at length. In the open courtroom, the Court and both
parties discussed the request for a continuance of the trial. In part, Vanegas indicated that he was
seeking a continuance in order to obtain an expert and a rebuttal witness to testify that under the
administration in Afghanistan at that time, there were organizations outside of the Taliban that
were involved in the drug trade. Tr. 14:9-20, 18:14-21, 20:11-17 (May 2, 2008).
Prior to taking a lunch recess, the Court also held a sealed, ex parte discussion on the record
outside of the presence of government counsel. During this ex parte discussion, Vanegas indicated
that he had numerous meetings with Mohammed to prepare for trial with the expectation that the
government’s evidence would be restricted to the audio and the video recordings of conversations
between Jaweed and Mohammed. Id. 74:2-10, 76:7-12. Vanegas noted that he felt that he had
done a “disservice” and had been “ineffective” in advising Mohammed based on that expectation
now that it became clear that the government intended to introduce evidence of how the underlying
investigation at issue was conducted, that Mohammed had prior links to the Taliban, and that
Jaweed was sent to meet with Mohammed at the behest of Abdul Rahman, a former Taliban
official, in addition to the audio and video recordings. Id. The Court indicated that it would take
a recess so that Vanegas could speak with his client and that it would require specific information
regarding what Vanegas would do if the request for a continuance was granted.
After the recess, the Court held another sealed, ex parte discussion with Mohammed and
his counsel. During this discussion, the Court requested that Mohammed specifically indicate
which potential witnesses in Afghanistan he wanted Vanegas to contact. Mohammed indicated
that he provided Vanegas with the names of Khan Mohammed, Salam Jan, Ashekullah, and Mula
16
Gul Rahman as people from his village who could serve as defense witnesses. Id. 100:21-25.
Notably, the four individuals identified by Mohammed during the May 2, 2008, hearing as
potential witnesses are different from the individuals that Mohammed identified during the
evidentiary hearing on December 3, 2015, as names that he provided to Vanegas in advance of
trial.
Mohammed represented that these individuals could serve as character witnesses for him
and against Jaweed. Id. 95:6-8. Specifically, Mohammed stated that the witnesses could explain
that he was not associated with the Taliban and that Jaweed was known as a thief, that he had a
case in Afghanistan, that he was sentenced to 18 years, that he was involved in four to five
robberies, that he was fugitive, and that he went to Pakistan. Id. 95:14-15, 95:24—96:4. The
Court notes that with respect to the discussion of Jaweed’s alleged prior conviction, Mohammed
had already abandoned this line of questions at the April 28, 2008, hearing. With respect to the
information that Mohammed indicated that the witnesses could provide about Jaweed, the Court
explained, as discussed at the April 22, 2008, hearing, that no official record of Jaweed’s criminal
conviction was located during the Lewis check and that an official record would typically be
needed to introduce such evidence at trial. See Tr. 12:15—13:25 (Apr. 22, 2008); Tr. 96:21—97:6
(May 2, 2008).
Vanegas confirmed that Mohammed had provided him with the four names of the witnesses
that Mohammed identified during this ex parte discussion as potential character witnesses who
could testify that Mohammed was not a member of the Taliban. Tr. 113:20—114:1, 114:12-13
(May 2, 2008). During the ex parte discussion, Vanegas also stated that he believed that the only
way to interview the witnesses would be to physically travel to Afghanistan and indicated that he
17
had not been given telephone numbers for the potential witnesses. Id. 115:12-17. Vanegas opined
that given Mohammed’s stature in the community and the fact these witnesses may also have
information regarding Jaweed, this was an avenue that should be pursued, even though he could
not predict the result. Id. 116:19—117:20. Specifically, Vanegas mentioned the possibility that
the potential witnesses could state that Jaweed was known in his community as a liar. Id. 117:17-
20.
Vanegas indicated that he raised Mohammed’s request that he interview these witnesses
with the Federal Public Defender for the District of Columbia as well as the government, given
the logistical problems in a war zone. Id. 113:25—114:3. As Vanegas explained with respect to
locating the witnesses:
The next issue was, how is that accomplished? And in being presented with that
dilemma, I spoke to Mr. Kramer [Federal Public Defender] about it, and I also
brought it to the attention of the Government. And that is, first of all, to go to his
district in Nangarhar province, I would need a guide, I would need a translator and
someone to take me to these people.
Then there was the issue of whether they could be brought back to the United States
and whether they would be given some type of provisional visa or some type of
special parole status. And those were complications that were just insurmountable,
and I didn’t pursue it. But I did bring this to the attention of Mr. Kramer. I mean, I
didn’t just keep it to myself, but I talked to different people in the office about what
I could do. And I could not really figure out or come to a solution as to how I could
go to his village, talk to these people when it’s in a remote place and it’s in the war
zone.
Id. 114:15—115:7.
After the sealed, ex parte discussion, the Court resumed the hearing in open court with the
government present. At that time, the government indicated that it would not seek to introduce
evidence that Mohammed was involved with the Taliban in the past if the trial proceeded as
18
scheduled. Id. 128:5-11. As such, the Court presented Mohammed with a choice. Specifically,
Mohammed could chose to proceed to trial the following week and the government would not
bring out any alleged past history with the Taliban. The government would only be permitted to
bring out evidence that Abdul Rahman knew Mohammed and sent Jaweed to talk to Mohammed,
along with the information that was on the recordings. Id. 129:10-16. In the alternative, the trial
would be continued as requested, allowing time for Vanegas to explore potential defense witnesses
from Afghanistan, and the government would likely be able to admit evidence of Mohammed’s
alleged past history with the Taliban. Id. 129:18—130:2.
The Court then took another recess to allow Mohammed to discuss with his counsel the
course of action he sought to take. After the break, Vanegas indicated that Mohammed wanted to
proceed with trial and was no longer asking for counsel to travel to Afghanistan to locate witnesses.
Id. 130:11-17. The Court then conducted a brief inquiry of Mohammed to confirm that this was
his decision:
THE COURT: So, all I need to know is from Mr. Mohammed, it’s correct that he’s
agreed based on the Court’s ruling and what the Government has said that at this
point if we go to trial next week then we would – he is not requesting the trip to
Afghanistan, is that correct?
THE DEFENDANT: Yes.
Id. 130:25—131:5. Ultimately, the Court entered an order continuing the trial from May 2, 2008,
until May 7, 2008, in order to allow the defense additional time to prepare and specifically noted
that the government would not “introduce evidence that [Mohammed] allegedly fought with the
Taliban and led a small group of Taliban fighters . . . .” Order (May 8, 2008) at 8-10, ECF No.
[54].
19
e. Mohammed’s Request for a New Attorney during May 2, 2008, Hearing
At the May 2, 2008, hearing, Mohammed also made a request for a new attorney after the
parties returned from the lunch recess. Tr. 83:21-24 (May 2, 2008). The Court made some general
comments in open court in front of the government regarding the request for a new attorney at this
stage of the proceeding and identified the various factors that it would consider when determining
whether to grant the request. The Court then conducted a sealed, ex parte discussion with
Mohammed regarding his request for new counsel in the event that any information regarding
defense strategy needed to be disclosed during the discussion.
At that time, Mohammed explained that he thought Vanegas previously should have
obtained information for his case from Afghanistan, id. 90:8-9, and that in light of the recently-
provided discovery from the government, the case had changed and Vanegas stated that he needed
time to contact people in Afghanistan, id. 91:1—91:19. The Court noted that defense counsel had
discussed the evidence with Mohammed in preparation for trial. Id. 110:2-7. The Court also
outlined several steps that Vanegas had taken on Mohammed’s behalf to protect his interests
including filing several motions such as the motion to exclude information in the recently-provided
discovery which the government conceded it would not pursue if the request for a continuance was
abandoned. Id. 106:25—108:17. Moreover, the Court noted that it had excluded certain evidence
should the trial proceed as scheduled because there was not sufficient notice to Mohammed of the
evidence. Id. 111:10-16. The Court further explained the factors that it would consider in
determining whether to grant the request, including protecting Mohammed’s rights and balancing
the interests of the community and the government, which at that time had already arranged for
witnesses to travel from Afghanistan for trial. Id. 91:23—99:23, 112:11-16. Ultimately, after
20
inquiry, the Court denied the request for new counsel, finding that there was no reason to replace
Vanegas and noting that granting the request for new counsel would further delay the proceedings.
Id. 118:6-9; Minute Order (May 5, 2008). If necessary, the Court agreed to a continuance of the
trial to allow Vanegas to secure witnesses. However, as discussed above, Mohammed later
declined to seek a continuance in light of the government’s concession that it would not introduce
evidence of Mohammed’s alleged past involvement with the Taliban. The Court further notes that
while Vanegas referenced doing a “disservice” to Mohammed and noting he had been
“ineffective,” this discussion was in reference to the potential evidence that the government sought
to admit regarding Mohammed’s alleged past allegiance to the Taliban and was not in reference to
the issue of contacting witnesses in Afghanistan. The evidence at issue was ultimately excluded
at trial based on Vanegas’ request.
2. Record on Remand Reflects Information Potential Witnesses May Have
Provided, Conflicting Accounts Regarding Information Communicated to
Vanegas about the Witnesses, and Reasons for Vanegas’ Decision Not to
Investigate Witnesses
Mohammed now contends that Vanegas was ineffective in assisting him because he failed
to contact witnesses in Afghanistan in advance of the May 2, 2008, hearing. It is Mohammed’s
contention that Vanegas could not have provided him with sound advice regarding his options to
continue the trial or proceed as scheduled and that this deficiency was caused by Vanegas’
complete failure to investigate potential witnesses from Afghanistan prior to the scheduled trial
date. As such, Mohammed argues that Vanegas had no idea what any of these potential witnesses
would say and without that knowledge, Vanegas could not properly counsel his client. Moreover,
Mohammed contends that Vanegas could have easily interviewed witnesses by phone based on a
21
list of phone numbers recovered from Mohammed’s phone and included in the discovery provided
to Vanegas. Given that it is undisputed that Vanegas did not contact these witnesses, the Court
next considers the evidence presented while this matter has been on remand
While on remand, the Court expanded the record as to Mohammed’s ineffective assistance
of counsel claim. First, the Court considers the various areas of testimony that Mohammed
contends that the potential witnesses could have provided and Mohammed’s and Vanegas’
accounts of what information Mohammed gave Vanegas about these potential witnesses, including
which specific witnesses Mohammed had identified. Next, the Court considers Vanegas’ stated
reasons for not contacting the potential witnesses as well as his trial strategy more generally.
Finally, the Court shall make credibility determinations and explain its findings.
a. Information that Potential Witnesses Could Have Provided
On remand, Mohammed identifies several areas of testimony that the potential witnesses
could have provided, including that: “(1) Jaweed was a known liar and thief, (2) Jaweed publicly
swore to seek revenge against Mohammed for sitting on a jirga that convicted him of robbery, and
(3) Mohammed was an upstanding citizen and not affiliated with the Taliban.” Def.’s Sld. Reply
at 7. Moreover, at the evidentiary hearing, Mohammed testified that in addition to providing
information regarding the jirga, the potential witnesses would have provided information about a
physical altercation between Jaweed and Mohammed’s cousin and about the fact that Mohammed
was elected over Jaweed’s cousin as a representative from his village. Tr. 82:7-8, 83:20-24 (Dec.
3, 2015). Mohammed contends that these pieces of evidence would have been admissible to
demonstrate Jaweed’s bias towards Mohammed.
In support of his claim, Mohammed provided a sworn declaration from his former appellate
22
counsel, Shardul Desai. See Def.’s Mot. to Vacate, Ex. 11 (Desai Decl.), ECF No. [118-12]. In
his declaration, Desai indicated:
When I began working on Mohammed’s appeal, I conducted an investigation by
interviewing witnesses Mohammed believed had information relevant to his case.
I relied on Mohammed’s nephew to contact 28 witnesses in Afghanistan. Among
these individuals were farmers, tribal elders, police officers, government liaison
officers, marshals, a soldier in the Afghan National Army, a veterinarian, a
principal, teachers, shopkeepers, a judge, religious leaders and people who served
on a tribal arbitration counsel, called a jirga, with Mohammed.
Every witness knew Mohammed for almost a decade and some had known him
since childhood. All the witnesses also knew or knew of Jaweed, the government’s
primary witness.
Id. ¶¶ 9-10. Desai indicated that he conducted interviews with these witnesses over the phone with
the assistance of a Pashto translator in the summer or fall of 2011, id. ¶ 11, and that “the
information provided by these witnesses could have challenged Jaweed’s testimony, have offered
important background information about Mohammed, and have provided an alternative
interpretation to parts of the recorded conversations between Jaweed and Mohammed that were
presented at trial,” id. ¶ 12.
Desai indicated that the interviews with these potential witnesses revealed information
about Jaweed, Mohammed, and Jaweed and Mohammed’s relationship. With respect to Jaweed,
Desai asserts that the potential witnesses provided the following information: “Jaweed had a poor
reputation in his village and surrounding areas because of criminal behavior and gangsterims,
including a robbery that a jirga found Jaweed guilty of committing,” id. ¶ 13; Jaweed was
described as a “thief,” id.; “people, including the police, were generally afraid of Jaweed and his
gang,” id.; Jaweed was described as “a liar and an oath-breaker,” id. ¶ 14; and Jaweed had a
reputation as “‘no one knows him as a good person,’” id.
23
The potential witnesses also described Mohammed’s participation in a jirga involving
Jaweed. Id. ¶ 15. A jirga is a form of arbitration outside of the formal state legal system that
involves the accused, the victim, witnesses, and arbitrators. Id. The Afghan government
encourages the use of jirgas as a form of Alternative Dispute Resolution and generally those
considered leaders in the community sit on jirgas. Id. Mohammed was asked to represent the
Geratak area, where both he and Jaweed were from, during certain jirgas, id. ¶ 15, and potential
witnesses noted that it was Mohammed’s status as a village leader that earned him that position,
id. ¶ 21. One potential witness, Malek Rezwan, informed Mohammed’s appellate counsel that he
sat on a jirga with Mohammed in which Jaweed was accused of stealing jewelry, opium, and
money in Karazo. Id. ¶ 16. The jirga involved 18 people and lasted 6 hours. Id. The victim
testified that he was tied to a bed and robbed of jewelry and opium, and Jaweed denied committing
the crime. Id. The jirga ultimately ruled unanimously in favor of the victim, finding that Jaweed
lied and requiring him to return the property. Id. Rezwan conveyed that Jaweed stated that
Mohammed should have ruled in his favor because they were both from the Geratak area. Id.
Moreover, Rezwan indicated that he and a few other people overhead Jaweed tell Mohammed,
“[Y]ou named me. I will not leave you alone even if it takes 20 years.” Id.
Mohammed testified that he participated in 500 to 600 jirgas in his lifetime as a mediator.
Tr. 70:6-12 (Dec. 3, 2015). As other witnesses noted, those who served in this capacity were
usually village elders with good reputations. Id. 71:1-2. Mohammed testified that the jirga
involving Jaweed occurred approximately two to two and a half years before his arrest. Id. 80:20-
81:4, 90:20-21. Mohammed indicated that after they heard argument from both sides regarding
the robbery accusation against Jaweed, Mohammed stated that he found the robbery victim to be
24
truthful even though Jaweed was from Mohammed’s village and Mohammed had known Jaweed
his whole life. Id. 74:14-16, 74:21-75:7, 75:8-18. Mohammed testified that the elders from both
villages respected his opinion and status, and ultimately, agreed with Mohammed that Jaweed had
committed the robbery. Id. 76:16-18. Given this finding, Jaweed was presented with two options.
The first was that he could put his hand on a book and take an oath as to his innocence. The second
was that he could pay damages. Id. 75:13-16. Jaweed took the former option and took an oath as
to his innocence. Id. 76:2. Mohammed indicated that when an accused person opts to take an oath,
no written record of the proceeding is maintained. Id. 77:2-13.
In his declaration, Desai also noted that the witnesses stated that Mohammed was never
involved with the Taliban, Desai Decl. ¶ 20, that he was poor farmer, id. ¶ 21, and that he spent
his time working to provide for his family, id. The witnesses further noted that they did not know
Mohammed was involved in drug trafficking and opined that if he was, it would have improved
his financial situation. Id. During his testimony at the evidentiary hearing, Mohammed indicated
that the witnesses had known him since childhood and, as such, would be able to speak about his
background. Tr. 73:2-6 (Dec. 3, 2015). Specifically, Mohammed noted that the witnesses would
testify that he had no connection to the Taliban and, in fact, that he escaped from his home when
the Taliban was in power. Id.
During the evidentiary hearing, Mohammed and Vanegas provided differing testimony
regarding any pre-trial discussion that they had regarding the jirga and Jaweed’s animosity towards
Mohammed. Mohammed testified that he told Vanegas about the jirga involving Jaweed. Id.
77:18-21. Specifically, Mohammed indicated that he told Vanegas that Jaweed told three people,
Malek Rezwan, Sameullah, and his brother, Besmilluh, that it was only Mohammed who blamed
25
him at the jirga and that he would take revenge as a result. Id. 77:24-78:5, 78:7-10. Mohammed
further testified that he told Vanegas that Sameullah and Rezwan would be able to discuss
Jaweed’s animosity towards Mohammed. While Mohammed did not remember whether he told
Vanegas about his brother’s ability to testify to this effect, he did give Vanegas his brother’s
address and told him that his brother would contact people for Vanegas. Id. 78:18-20. 78:2-14,
78:20-21. Mohammed also testified that he himself told Vanegas in detail about Jaweed’s
animosity towards him, id. 79:10-14, and that he provided Vanegas with a list of between seven
and eleven potential witnesses, all of whom knew about the animosity between Jaweed’s and
Mohammed’s families, id. 84:11-14, 84:15-17, 85:5-10. Mohammed stated that Vanegas told him
that he could not contact witnesses because he was unable to travel to Afghanistan given the
situation there at the time. Mohammed mentioned contacting potential witnesses by phone to
Vanegas but did not provide phone numbers. Id. 78:20-21. However, Vanegas was unaware that
he had been provided a list of phone numbers derived from Mohammed’s phone during discovery,
and the list included some of the potential witnesses. Id. 80:10-15.
Mohammed also testified post-trial that he told Vanegas that the witnesses would be able
to provide information regarding two other incidents involving Jaweed and were illustrative of the
animosity between Mohammed’s family and Jaweed’s family, not reflected in the Desai
declaration. Id. 82:7-8, 83:20-24, 82:9-12. Mohammed testified as to the following matters. First,
approximately three and a half years before Mohammed’s arrest, Mohammed’s cousin, Alsue
Khan Mohammed, was involved in a physical altercation with Jaweed. Id. 81:17-19, 82:5-6,
89:10, 89:14-16. The altercation occurred because Mohammed’s cousin had a dispute with a third
party and learned that Jaweed was trying to make the dispute worse by going in between the two
26
disputing parties. Id. 81:5—82:4. When the cousin found out what Jaweed was doing, they had a
physical altercation. Id. 81:17-19, 82:3-4. Second, approximately a year and a half before
Mohammed’s arrest, the Afghanistan government decided to select someone from Mohammed’s
village as a representative of the area. Id. 82:19-21, 83:5. The representative would serve as a
liaison between the village and the government so that the government could send charity
organizations to help with the needs of the village. Id. 85:13-16. Jaweed’s cousin, Farooq,
nominated himself and the people of the village nominated Mohammed. Id. 82:21-23. Ultimately,
Mohammed was elected and Jaweed took it against Mohammed that he was elected over Jaweed’s
cousin. Id. 82:24-25, 83:16-19.
While Mohammed testified post-trial that he provided all of this information to Vanegas in
advance of trial, Mohammed provides no specific timeline whatsoever regarding when this
information was communicated to Vanegas. Instead, Mohammed simply stated that he
emphasized his request many times that Vanegas contact these witnesses. Id. 81:9-11. As such,
Mohammed has presented no timeline, even an approximate one, as to when these discussions
with Vanegas allegedly took place. Notably, the information regarding the witnesses provided by
Mohammed at the evidentiary hearing differs from that in the record prior to trial.
Indeed, on April 22, 2008, the Court specifically asked Vanegas in the presence of
Mohammed if Mohammed was involved in any way in the lawsuit against Jaweed and Vanegas
indicated that Mohammed was not personally involved. Tr. 6:10-13 (Apr. 22, 2008). The Court
went on to discuss its view that if Mohammed had personal involvement in the accusation, that it
would affect the admissibility of the evidence. Mohammed had an opportunity to change this
position. At the May 2, 2008, hearing, the Court addressed Mohammed directly about witnesses
27
in Afghanistan and Mohammed never indicated that he was personally involved in the lawsuit.
This differs from Mohammed’s post-trial account in which he allegedly found during the jirga that
the robbery victim and not Jaweed was being truthful and others on the jirga supported
Mohammed’s view of the evidence. In response, to the Court’s inquiry pre-trial, Mohammed
identified four specific witnesses that he wanted Vanegas to contact. At the evidentiary hearing
post-trial, Mohammed indicated that he provided seven to eleven names to Vanegas and identified
three different witnesses by name. Moreover, at the May 2, 2008, hearing prior to trial when asked
what information these witnesses could provide, Mohammed never mentioned the jirga, the vow
of revenge, or the altercation between Jaweed and Mohammed’s cousin. Again, Mohammed has
never provided pre- or post-trial even a rough timeline of when the names of the witnesses were
allegedly provided to Vanegas or when he allegedly told Vanegas about the information that these
witnesses could provide.
Vanegas provided a different account of the information that he was given by Mohammed
with respect to the potential witnesses. Specifically, at the post-trial hearing, Vanegas testified
that he did not consider that Jaweed may be biased against Mohammed given the information that
he had been provided by Mohammed. Tr. 20:24-21:1 (Dec. 3, 2015). Vanegas further indicated
that Mohammed never told him about the jirga and Vanegas testified that he would have
remembered if Mohammed had brought this to his attention because he remembered reading a
newspaper article about jirgas in the aftermath of the September 11th attacks. Id. 35:9-23.
Moreover, Vanegas stated that Mohammed also never told him that Jaweed had threatened revenge
against him. Vanegas testified that he would have viewed this information as “very important,”
would have followed up on it, and would have incorporated it into his cross-examination of
28
Jaweed. Id. 35:24-36:10. Vanegas further noted that if Mohammed communicated this
information to him, it “would have certainly stuck in [his] mind.” Id. 37:2. As such, Vanegas
testified that when he cross-examined Jaweed, he did not know about the jirga and did not ask if
he was biased against Mohammed because he had no such information. Id. 31:12-22, 32:1-4.
Vanegas also testified that Mohammed did tell him that Jaweed had a robbery conviction
and that Jaweed did not have the same standing as him in the community. Id. 53:17-19.
Specifically, Vanegas stated that Mohammed told him that Jaweed was a farmer and not a leader
so he did not have the same level of prestige in the community. Id. 53:20-24. Vanegas also
understood that Jaweed’s standing in the community was affected by the fact that he had been
away in Pakistan. Id. 53:24-25. Vanegas indicated he had a “foggy” recollection that Mohammed
told him that Jaweed’s mother asked Mohammed if he would consider allowing Jaweed to marry
one of Mohammed’s sister, but that Mohammed did not want that information to be brought out
at trial because it was considered dishonorable. 5 Id. 54:1-12, 91:14-22.
b. Vanegas’ Trial Strategy
During the evidentiary hearing, Vanegas provided relevant information regarding his
representation of Mohammed. Throughout the course of his representation of Mohammed,
Vanegas testified that he scheduled meetings for either half or full days because the meetings were
facilitated with the assistance of a Pashto interpreter who had to travel from New York. Id. 12:2-
14. Vanegas indicated that not immediately after the filing of the superseding indictment, but as
they approached trial, Mohammed insisted that Vanegas get in touch with potential witnesses in
5
Mohammed verified that this event did occur at some point after the jirga. Id. 91:25.
29
Afghanistan. Id. 14:25—15:4. Vanegas testified that Mohammed made the request that he contact
these witnesses during at least two of their extended meetings with the interpreter. Id. 15:7-11.
Indeed, as previously mentioned, the record reflects that Vanegas first raised the issue of obtaining
defense witnesses from Afghanistan with the Court during the February 25, 2008, status hearing,
but did not provide any specific details about these witnesses’ potential testimony and the record
is devoid of testimony that the specific details were provided by Mohammed around this time.
During their meetings, Vanegas testified that he reviewed discovery with Mohammed and
thought that the government had strong evidence against Mohammed. Id. 15:17-25, 33:13-16.
With respect to the audio and video recordings, Vanegas testified that he tried to review that
evidence with Mohammed because it was central to the government’s case, but Mohammed was
not interested in doing so. Id. 16:1-7. Instead, Mohammed told Vanegas that he had already heard
a lot of the recordings, and denied that it was his voice on the recordings. Id. 40:21-25, 99:17-
100:2. Vanegas testified that he did ask Mohammed about the list of names and numbers recovered
from his phone and Mohammed stated that some of the people on that list knew that he was
respected and knew of his role in the community. Id. 18:17-19. However, Vanegas testified that
he did not remember the list of telephone numbers during the May 2, 2008, hearing when asked
by the Court if he could contact potential witnesses by phone. Id. 19:15-17.
While preparing for trial, Vanegas did consider what kinds of witnesses he could call on
Mohammed’s behalf. Id. 38:1-5. However, upon review of the discovery and the facts in the case,
Vanegas did not think that he could present fact witnesses given that the government’s case
centered around audio and video recordings that Jaweed generated capturing conversations
between Mohammed and Jaweed. Id. 38:4-10. Vanegas testified that he also considered
30
presenting reputation witnesses for both Mohammed and Jaweed. Id. 38:11-14. With respect to
Mohammed, Vanegas considered whether he could present witnesses to testify as to Mohammed’s
character for truthfulness or peacefulness. Id. 39:15-17. Generally, Vanegas testified that he did
not see how a reputation witnesses could survive cross-examination when confronted with
Mohammed’s recorded statements. Id. 38:14-18. Turning first to witnesses who could testify as
to Mohammed’s character for truthfulness, Vanegas noted that the decision was made that
Mohammed would not testify because he would be forced to explain his recorded statements which
include admissions of criminal conduct, id. 39:18-40:2, and because Mohammed was not
testifying, Vanegas could not present witnesses who would testify as to Mohammed’s character
for truthfulness, id. 40:3-8. Turning next to witnesses who could testify as to Mohammed’s
character for peacefulness, Vanegas thought that the peril of presenting those witnesses would be
that they would be confronted with the recordings of Mohammed’s damaging statements, that the
statements would be played yet again, and that the witnesses would have to reconcile their view
of Mohammed’s character with his own statements. Id. 40:15-20. As such, Vanegas made the
decision not pursue character witnesses to testify as to Mohammed’s character for truthfulness or
peacefulness.
Vanegas also indicated that he understood from Mohammed that he was a well-respected
member of his community and that at one point he received a job from U.S. military government
or the administration to participate in a “civilian-type” project. Id. 52:21—53:2. In light of this
information, he specifically considered whether to present testimony that Mohammed was a
respected figure in his community, that he was a good person, and that he was the head of a family
of mostly women. Id. 39:6-7, 51:25-52:5. Vanegas decided not to pursue these potential witnesses
31
because, if they testified, they also would be confronted with other evidence, namely the audio and
video recordings of Mohammed during which he admitted criminal conduct. Id. 52:4-7. During
the evidentiary hearing, Vanegas conceded that it was possible that some of these witnesses also
may have known Jaweed, but Vanegas did not ask Mohammed about that at the time. Id. 53:10-
14.
Turning next to the witnesses who could testify as to Jaweed’s character, Vanegas testified
that he was told by Mohammed that Jaweed had a conviction for theft or robbery and that there
was a record of it. Id. 24:2-6. Vanegas noted Mohammed believed that there was a record of
Jaweed’s conviction in the prosecutor’s office in Jalalabad. Id. 35:6-8. Based on this information,
Vanegas asked the government to follow up because of its presence in Afghanistan and because
the government had contact with local police who were government witnesses in this case. Id.
24:6-12. Vanegas indicated that while he made the request for a Lewis check, he relied on
Mohammed for information regarding what records would exist in Afghanistan as well as
information from the United States government. Id. 23:19-24. In light of Vanegas’ request, the
government contacted the local police commander in Afghanistan, reviewed the records, and did
not find any results. Id. 24:14-19. Vanegas noted it was his recollection that after the Lewis check
was run and returned no results, it was the end of that inquiry into Jaweed’s criminal history from
his perspective. Id. 24:24-25:2. Vanegas also indicated that based on the results of the Lewis
check, he did not think that he had any character evidence to pursue against Jaweed. Id. 41:14-20.
Indeed, at the April 28, 2008, hearing, Vanegas indicated that he would not question Jaweed
regarding the theft/robbery accusation.
32
At the post-trial evidentiary hearing, Vanegas also discussed his request for a continuance
of the May 5, 2008, trial date, and ultimately, Mohammed’s decision to proceed with the trial as
scheduled. Vanegas testified that he requested the continuance in part because of new evidence
that Mohammed had an allegiance to or association with the Taliban. Id. 42:6-11. Vanegas
indicated that there had been some discovery as to this issue provided earlier which he had
overlooked because the Court had excluded the testimony by Jaweed about the Taliban
connection. Id. With respect to the request to continue the trial, Vanegas understood that
Mohammed was offered the choice to proceed with the trial as scheduled or continue the trial, in
which case evidence of Mohammed’s alleged past allegiance to the Taliban and of Mohammed’s
alleged knowledge that Rahman was sending Jaweed to him would likely be admitted at trial. Id.
42:15-21, 43:5-7, 43:15-18.
In counseling Mohammed on his options, Vanegas and Jahn met with Mohammed in lock-
up behind the courtroom. At some point during this time, Vanegas and Jahn also went back to
their office and consulted with the Federal Public Defender before speaking with Mohammed
again. Id. 45:11-17. Vanegas explained the options to Mohammed and let Mohammed decide
how he wanted to proceed because, as Vanegas recognized, this was ultimately Mohammed’s
decision to make. Id. 113:2-5, 44:4-10. Vanegas noted that it was “very difficult choice,” and in
considering it, they weighed the benefits of possibly interviewing witnesses in Afghanistan,
including character witnesses, against the risk of the new potentially damning evidence that would
likely be introduced if the trial was continued. Id. 43:23-44:3, 119:6-13. Vanegas noted that
throughout his representation of Mohammed, he asserted his right to a speedy trial. However, as
trial approached, it became more difficult for Mohammed to make choices because, in Vanegas’
33
view, Mohammed had a lack of understanding about the legal process in the United States early
on. Id. 44:17-23. In reaching his decision in this particular instance, Vanegas noted that
Mohammed was “more thoughtful” and “took more time to think what really was in his interest
and what do to.” Id. 45:4-7. While Vanegas was counseling Mohammed, Vanegas explained the
choices and Mohammed asked a few questions. Id. 119:14-16. In Vanegas’ view, Mohammed
appeared to understand the discussion. Id. 119:17-19. In weighing the choices, Vanegas noted
the risk that the government would supplement its evidence and “make it worse” for Mohammed
if he sought a continuance. Id. 55:12-18. Indeed, Vanegas sought the continuance to follow up
on Mohammed’s request. Id. 56:6-11. At the time of the continuance, Vanegas noted that he did
not know exactly what information he would obtain from the potential witnesses because he had
not spoken with them. Id. 56:12-16. However, Vanegas noted that a continuance would have
given him time to interview witnesses in Afghanistan which Vanegas did not view as futile.
Ultimately, it was Mohammed’s decision to forgo investigating defense witnesses and proceed to
trial. Id. 45:24-46:1. As Vanegas noted, this decision was not a “snap” decision on Mohammed’s
part.
In contrast, Mohammed testified at the evidentiary hearing that he did not remember the
discussion on the record with the Court during the May 2, 2008, hearing regarding the
continuance, the two options presented to him, or his decision not to seek a continuance and
proceed with the trial as scheduled. Id. 94:15-99:8. Rather, Mohammed testified that he
remembered informing the Court that he was unhappy with his lawyer because his lawyer did not
interview witnesses. Id. 94:3-6.
3. Court’s credibility determinations and conclusions
34
The Court now considers the evidence before it in light of the relevant legal standard. In
order to succeed on an ineffective assistance of counsel claim, Mohammed must satisfy the
requirements of the Strickland test. Specifically, Mohammed must demonstrate: “(1) that
counsel’s performance was deficient and (2) ‘that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” United
States v. Shabban, 782 F.3d 3, 7 (D.C. Cir. 2015) (quoting Strickland, 466 U.S. at 687, 694).
However, “[t]he Court need not address both the deficient performance and prejudice components
of the inquiry if there has been an insufficient showing on one prong.” Mansfield v. United States,
800 F. Supp. 2d 84, 89 (D.D.C. 2011) (citing Strickland, 466 U.S. at 687). The burden of
establishing both prongs of the Strickland test rests with Mohammed. United States v. Reeves,
586 F.3d 20, 26 (D.C. Cir. 2009).
In order to evaluate whether Vanegas’ conduct fell within the wide range of reasonable
professional assistance, the Court must consider what information was provided to him regarding
the potential witnesses and when that information was provided to him. Next, the Court shall
consider the various areas of testimony that these witnesses could have provided to Vanegas.
a. Identification of Specific Witnesses to Vanegas and Timing of Same
The Court must first resolve the factual disputes between Mohammed and Vanegas
regarding what information was conveyed to Vanegas about the potential defense witnesses in
Afghanistan. The issue of calling defense witnesses from Afghanistan was first raised on the
record during the February 25, 2008, status hearing. While Vanegas noted that this was a “new
issue,” no specific information about the names of these witnesses or their potential testimony
was placed on the record at that time. Mohammed has presented no evidence to contradict the
35
timing of when the initial request to contact witnesses was first made. As such, the Court finds
that Mohammed first made the request that Vanegas contact potential defense witnesses in
Afghanistan shortly before the February 25, 2008, status hearing, but there is no evidence in the
record that Mohammed provided any specific details which witness Vanegas was to contact or
what information they would provide. 6
The record reflects that leading up to trial, Mohammed provided Vanegas with the names
of Khan Mohammed, Salam Jan, Ashekullah, and Mula Gul Rahman as people from his village
who could serve as defense witnesses, at least of May 2, 2008. Tr. 94:20-25 (May 2, 2008). At
the evidentiary hearing post trial, Mohammed identified three different people, Malek Rezwan,
Sameullah, and his brother, Besmilluh, whose names he testified he provided to Vanegas prior to
trial. Moreover, during the evidentiary hearing post trial, Mohammed indicated that he also gave
Vanegas a list of seven to eleven names of potential witnesses.
The Court first notes that the witnesses identified during the evidentiary hearing post trial
are those who provide the majority of information regarding the jirga to Desai and appear in the
list of phone numbers provided during discovery. However, the record leading up to trial reflects
that the Court specifically asked Mohammed to identify the potential witnesses by name and
describe what information they would provide. On May 2, 2008, prior to trial, Mohammed listed
four names that were different from the three names he identified post trial. Prior to trial, the
6
The Court notes this finding is consistent with the information in Vanegas’ declaration
provided while this matter has been on remand. Govt.’s Notice, Ex. B (Vanegas Decl.), ECF No.
[149]. Specifically, Vanegas indicates that he did not contact witnesses early on because he
thought the matter would be resolved short of trial. Id. ¶ 5. However, Vanegas did not remember
discussing specific witnesses, only talking in general about potential witnesses who could testify
on Mohammed’s behalf. Id.
36
Court also inquired of Vanegas as to the potential witnesses whom Mohammed had identified and
Vanegas confirmed on May 2, 2008, that those four were the names that he was given. As such,
the Court finds that Mohammed did not identify prior to trial Malek Rezwan, Sameullah, and his
brother, Besmilluh, as potential witnesses who heard Jaweed vow to seek revenge against
Mohammed because of the jirga. Moreover, while Mohammed now contends that he provided
Vanegas with a list of seven to eleven potential witnesses, the record only reflects the four
witnesses that he identified by name to Vanegas as of May 2, 2008. Mohammed has provided no
specific testimony to the contrary regarding the timing of these alleged conversations between
him and Vanegas regarding witnesses. Vanegas indicated that on two occasions during their
extended meetings prior to trial, Mohammed raised the issue of witnesses in Afghanistan.
In sum, the Court concludes that Mohammed first requested that Vanegas contact potential
defense witnesses in Afghanistan shortly before February 25, 2008. Moreover, the Court
concludes that Mohammed only specifically identified four potential defense witnesses, Khan
Mohammed, Salam Jan, Ashekullah, and Mula Gul Rahman, on the second occasion, shortly in
advance of the May 2, 2008, status hearing, which was held in part to discuss Mohammed’s
pending request for a continuance of the trial that was later abandoned. In reaching this
conclusion, the Court specifically credits the information in the pre-trial record over
Mohammed’s testimony post trial while this matter has been on remand. Given the Court’s
finding that Mohammed only identified these four specific witnesses to Vanegas prior to trial, the
Court shall focus its analysis on these specific witnesses.
The Court next considers Mohammed’s claim that Vanegas should have contacted these
witnesses by phone. The names of the four potential witnesses appear in the official transcript
37
from the May 2, 2008, hearing, and in some instances are spelled phonetically. The Court
compared these names to the names recovered from Mohammed’s phone which was provided to
Vanegas during discovery, Def.’s Mot. to Vacate, Ex. 12, ECF No. [118-13], as well as to the
individuals identified in the Desai declaration, Desai Decl. ¶ 11. Based on this comparison, it
appears that Desai was able to contact all four potential witnesses, Khan Mohammed (Khan
Mohammed s/o Malik Faqir), Salam Jan (Mohammad Salam Jan), Ashekullah (Aeshqullah s/o
Saheb Jan), and Mula Gul Rahman (Mullah Gul Rahman), presumably with the assistance of
Mohammed’s nephew. However, Mohammed has not shown that the four identified potential
witnesses also appear on the list of phone numbers provided during discovery because there are
no exact matches. As such, it does not appear that Vanegas would have been able to contact these
individuals by phone prior to May 2, 2008. In addition, given the fact that the record reflects that
these four witnesses were first identified shortly before trial and Mohammed waived his request
that the trial be continued in order for Vanegas to travel to Afghanistan to interview potential
witnesses, the Court concludes that Vanegas likely could not have reached these witnesses prior
to trial either by phone or in person given the timing of this information being provided to him,
the fact that the identified witnesses’ phone numbers were not among those provided in discovery,
and the unfeasibility of being able to physically travel to Afghanistan, an active war zone, on short
notice.
b. Potential Areas of Testimony that the Four Defense Witnesses Could
Have Provided
While on remand post trial, Mohammed indicated that the witnesses in Afghanistan could
have provided three broad areas of testimony demonstrating: (1) Jaweed was a known liar and
38
thief; (2) Mohammed was an upstanding citizen and not affiliated with the Taliban; and (3) Jaweed
was biased against Mohammed. Underlying the allegation of bias are three incidents: (1)
Mohammed’s participation in the jirga regarding the theft/robbery allegation against Jaweed and
Jaweed’s related vow of revenge; (2) the election where Mohammed was selected to represent
Mohammed’s and Jaweed’s village over Jaweed’s cousin; and (3) the physical altercation between
Jaweed and Mohammed’s cousin. The Court shall address each topic in turn.
i. Jaweed’s Reputation as a Known Liar and Thief
The record reflects that Mohammed informed Vanegas prior to trial that Jaweed had a
reputation as a thief and a liar. Indeed, during the May 2, 2008, status hearing, Mohammed
represented that the four potential witnesses could testify that Jaweed was known as a thief, that
he had a case in Afghanistan, that he was sentenced to 18 years, that he was involved in four to
five robberies, that he was fugitive, and that he went to Pakistan. Moreover, Vanegas mentioned
at that same hearing the possibility that some witnesses may be able to state that Jaweed was known
within his community as a liar. As such, the Court shall first address the issue of Jaweed’s alleged
reputation as a liar and then shall address Jaweed’s alleged reputation as a known thief.
The Court first turns to Jaweed’s alleged reputation as a liar. A review of the Desai
declaration reflects that while some of the potential witnesses contacted by Desai noted that Jaweed
was a liar, none of the four witnesses identified on the record by Mohammed prior to trial
mentioned Jaweed’s reputation as a liar. As such, even if these witnesses were contacted by
Vanegas prior to trial, Mohammed has not demonstrated that they would have offered information
about Jaweed’s reputation as a liar to Vanegas.
39
The Court next turns to Jaweed’s alleged reputation as a thief. Vanegas indicated that he
was told by Mohammed that Jaweed had a robbery conviction and that there would be a record of
this conviction. Based on this information, Vanegas requested that the government conduct a
Lewis check and after the results came back with no record, he did not further pursue this line of
investigation and Mohammed agreed not to pursue it. 7 Here, the record reflects that Vanegas
investigated the claim of the prior conviction for robbery/theft and when no records were returned
based on the Lewis check, he reasonably believed there was no further investigation to complete
based on this request.
ii. Mohammed as an Upstanding Citizen Unaffiliated with the
Taliban
Mohammed also argues that Vanegas should have contacted witnesses who would have
testified that he was an upstanding citizen who was unaffiliated with the Taliban. The Desai
declaration states: “The witnesses interviewed stated unequivocally that Mohammed was never
involved with the Taliban. They also said if Mohammed was affiliated with the Taliban, it would
have been widely known, especially to the people in his village and surrounding areas.” Desai
Decl. ¶ 20. However, unlike the other statements in the declaration, this statement is not credited
to any specific potential witness interviews. Rather, a review of the Desai declaration reflects that
the four witnesses identified prior to trial only noted that Mohammed was a simple and poor
farmer, but provided no information regarding his general reputation as an upstanding citizen. As
such, Mohammed has failed to demonstrate that if Vanegas had contacted the four identified
7
During the evidentiary hearing, Vanegas acknowledged the possibility that there might
have been records at one point in time with the Taliban that no longer existed because the Taliban
was not in power. No evidence was presented to support this speculation. Id. 25:8-15.
40
witnesses, that they would have provided information about Mohammed’s lack of involvement
with the Taliban or about his role as a respected member of the community.
iii. Jaweed’s Bias Towards Mohammed
Finally, Mohammed argues that the witnesses would have provided information regarding
Jaweed’s alleged bias towards Mohammed. At the evidentiary hearing post trial, Mohammed
testified that he told Vanegas prior to trial in detail about the animosity that existed between Jaweed
and Mohammed and that he told Vanegas that he sat on a jirga that presided over the robbery
accusation against Jaweed. Mohammed further testified that he told Vanegas about two other
incidents underlying Jaweed’s bias against him: (1) the physical altercation between Jaweed and
Mohammed’s cousin; and (2) the election in which Mohammed was selected over Jaweed’s
cousin. Importantly, absent from evidence presented by Mohammed was any indication of when
any of these alleged specific conversations occurred. Mohammed simply contended that he
emphasized the importance of the witnesses to Vanegas several times prior to trial. In sum,
Mohammed asserts that he informed Vanegas that the potential witnesses could testify as to
Jaweed’s bias towards Mohammed and three events underlying this bias – the jirga, the physical
altercation, and the election. The Court shall address each in turn.
Before reaching this discussion, the Court shall first set forth the bases for its credibility
determinations in light of the fact that Mohammed and Vanegas have provided differing accounts
of what information was provided to Vanegas prior to trial. Turning first to the jirga, the parties
dispute whether Mohammed told Vanegas about the jirga and relatedly, about Jaweed’s vow of
revenge prior to the trial. Mohammed testified at the evidentiary hearing post trial that he
specifically told Vanegas that the potential witnesses could testify regarding the jirga and about
41
Jaweed’s assertion that he would seek revenge against Mohammed because of his role in the jirga.
Vanegas denied that Mohammed ever told him about the jirga involving Jaweed. Vanegas noted
that he would have remembered if Mohammed mentioned a jirga because Vanegas knew about
jirgas from reading a newspaper article in which they were discussed. Moreover, Vanegas
indicated that he would have considered information of potential bias as very important and
followed up if that information was presented to him.
Based on the evidence before it and after observing the demeanor of Mohammed and
Vanegas and weighing their credibility, the Court credits Vanegas’ testimony that he was not told
by Mohammed about the jirga or more generally about Jaweed’s purported animosity towards
him, other than with respect to the election as discussed below. The Court bases this finding in
part on Vanegas’ forthright testimony at the evidentiary hearing, including his assertions that if
he had been told this information, he would have remembered and followed up given its potential
importance in preparing for his cross-examination of Jaweed. Vanegas’ account of what he would
have done had this information been communicated to him is supported by other steps he took in
response to information provided to him by Mohammed, including requesting that the
government conduct a Lewis check as to Jaweed’s alleged criminal history and his representation
that he had a good faith belief that a record of the arrest would exist. Moreover, as the Court has
outlined above, despite the discussions on the record and the filings made in this case, there was
no mention of either of the jirga or Jaweed’s purported animosity towards Mohammed other than
with respect to the election in any of pleadings or during the discussions on the record prior to
trial. Rather, Vanegas’ account of the information that Mohammed provided to him was
consistent with the information reflected in the record leading up to trial. Specifically, as Vanegas
42
acknowledged during the evidentiary hearing post trial, Mohammed told him that he was a well-
respected member of his community and that Jaweed was a thief, and provided examples to
support these claims, including that Mohammed was selected to work on a civilian project and
that he was not involved in the Taliban, and that Jaweed had a criminal record for robbery and
had been sentenced to 18 years. Moreover, Vanegas did have a specific recollection of
information Mohammed provided to him regarding Jaweed’s mother’s request to Mohammed that
Jaweed be permitted to marry one of his sisters and Mohammed’s specific request that Vanegas
not bring this fact out at trial.
For the reasons described, the Court specifically credits Vanegas’ account of the
information that Mohammed provided to him regarding the scope of the potential witnesses’
testimony over that provided by Mohammed at the evidentiary hearing post trial. As such, the
Court finds that Mohammed did not tell Vanegas during trial preparation about Jaweed’s alleged
bias against him other than in relation to the election. Furthermore, the Court finds that
Mohammed did not tell Vanegas about the jirga, Jaweed’s vow of revenge against Mohammed,
or the physical altercation between Jaweed and Mohammed’s cousin. Finally, it appears from the
record that Mohammed’s reference to the election and Vanegas’ reference to a “civilian-type”
project to which Mohammed had been selected reference the same incident. Moreover, the Court
notes Vanegas’ recollection of this incident is consistent with the record prior to trial as Vanegas
specifically mentioned the election during the April 22, 2008, hearing as a reason why Jaweed
could harbor a vendetta against Mohammed. The Court shall accept for the purposes of its analysis
that this information was communicated to Vanegas.
43
As discussed, the Court finds that Vanegas was not told about the jirga or about Jaweed’s
vow of revenge in the aftermath of the jirga. Moreover, none of the four potential witnesses
identified prior to trial indicated to Desai that Mohammed was involved in a jirga reviewing the
robbery allegation against Jaweed or that Jaweed vowed revenge against Mohammed.
Accordingly, the Court finds that Mohammed has failed to establish that Vanegas was aware of
the jirga or the related vow of revenge prior to trial, or that any of the four witnesses identified by
Mohammed prior to trial would have provided information about these topics.
Turning next to the physical altercation between Mohammed’s cousin and Jaweed,
Mohammed asserts that he informed Vanegas of this incident prior to trial. However, the record
leading up to trial does not demonstrate that this information was communicated to Vanegas.
Moreover, the Desai declaration is silent as to this allegation. As such, Mohammed has failed to
establish that the four witnesses identified prior to trial would have provided Vanegas with
information regarding this alleged altercation or that any of the witnesses contacted by Desai
would have provided information about this incident.
Finally, the Court turns to Mohammed’s allegation that Jaweed was biased against him
because Mohammed won an election over Jaweed’s cousin. The pre-trial record reflects that
Vanegas was told as of April 22, 2008, that Jaweed may have a vendetta against Mohammed
because Mohammed won a local election. At the evidentiary hearing post trial, Vanegas again
mentioned that Mohammed told him that he was selected at one point in time to participate in a
“civilian-type” project by the U.S. military government or the administration. However, the Desai
declaration does not make any mention of this election at all. As such, Mohammed has not
demonstrated that any potential witnesses, let alone those four specifically identified prior to trial,
44
would have provided information regarding the election to Vanegas if they had been contacted.
In sum, the Court finds that Vanegas was told as of April 22, 2008, about Jaweed’s potential
bias only as it related to the election. Moreover, a review of the Desai declaration demonstrates
that none of the four witnesses identified by Mohammed prior to trial discussed Jaweed’s alleged
bias towards Mohammed generally, or any of the three specific incidents that Mohammed now
contends formed the basis of Jaweed’s bias against Mohammed.
c. Additional Credibility Determinations and Consideration of the
Evidence as Whole
The Court must next determine whether Vanegas’ decision not to further investigate these
witnesses prior to the scheduled trial date was reasonable under the circumstances. In order to
determine whether Vanegas’ decisions was reasonable, the Court shall provide a summary of the
information that Mohammed has demonstrated was available to Vanegas prior to the trial.
Mohammed raised the issue of Vanegas contacting potential witnesses in Afghanistan shortly
before the February 25, 2008, status hearing, but did not provide any names or specific information
about what testimony these witnesses might offer. On March 10, 2008, in response to the
government’s Motion in Limine to preclude the defense from raising the assertion that Jaweed had
been convicted of theft and imprisoned, Vanegas made a request that the government conduct a
Lewis check on Jaweed based on information from Mohammed that there were records of the
conviction. The government complied with the request for a Lewis check and the check yielded
no records of a criminal conviction. As a result, Vanegas stated on the record in open court in
Mohammed’s presence on April 28, 2008, that he abandoned his request to pursue this line of
questioning at trial. Notably, at a hearing six days prior to this discussion, the Court emphasized
45
on the record that the allegations of Jaweed’s prior legal history could be admitted to show bias
even if there was no arrest or conviction if Mohammed had any direct involvement in the
allegation. Shortly before April 22, 2008, Vanegas was informed that Jaweed may have a vendetta
against Mohammed because Mohammed was elected as tribal chief over a candidate that Jaweed
supported. Shortly before May 2, 2008, Mohammed provided Vanegas with the names of Khan
Mohammed, Salam Jan, Ashekullah, and Mula Gul Rahman as potential witnesses. In terms of
the potential testimony that these witnesses could provide, Vanegas was informed, against shortly
before the May 2, 2008, hearing, that they could provide information about Mohammed and
Jaweed generally and, more specifically, could testify that Mohammed was not a member of the
Taliban and that Jaweed was known within the community as a liar. Mohammed also again raised
the assertions regarding Jaweed’s former alleged conviction that he had previously abandoned.
After this information was placed on the record in open court and the government made certain
concessions regarding the scope of evidence that they would seek to admit at trial, Mohammed
made the express decision to abandon his request for a continuance and decided to proceed to trial.
The trial commenced on May 7, 2008.
Mohammed has not established that any of the four identified witnesses’ phone numbers
were provided to Vanegas during discovery. Moreover, a review of the declaration submitted by
Desai shows that the identified four witnesses stated during their phone interviews: (1) “Jaweed
had a poor reputation in his village and surrounding areas because of criminal behavior and
gangsterism, including a robbery that a jirga found Jaweed guilty of committing”; (2) Jaweed was
a thief; (3) “[N]o one knows [Jaweed] as a good person”; (4) Jaweed was arrested, detained,
convicted and sentenced with two other men for a robbery, but paid bribes to be let out and fled
46
to Pakistan; (5) Jaweed and his gang attempted to rob a house in the Karez/Kariss area and a child
was killed in the process; (6) Jaweed and his gang kidnapped a boy in the Mehdi village and sold
him in Peshawar, Pakistan; and (7) Mohammed was a poor farmer. As discussed supra, these are
the only facts that Mohammed has established on remand through the Desai declaration post trial
with respect to his claim.
Given that the information provided pretrial to Vanegas regarding the testimony that these
potential witnesses could offer differs from the Desai declaration in large measure and the timing
of this information being provided, the Court finds Vanegas’ decision not to further contact the
witnesses to be reasonable under prevailing professional norms. Here, at most, Mohammed has
established that as of March 10, 2008, Vanegas knew about Jaweed’s alleged prior theft
conviction, and knew as of April 22, 2008, fifteen days before trial commenced, about Jaweed’s
alleged vendetta against Mohammed based on the election. As of May 2, 2008, five days before
trial, Mohammed informed Vanegas that four specific witnesses would testify that he was not a
member of the Taliban, that Jaweed was known within the community as a liar, and that Jaweed
had a theft conviction (an issue already abandoned based on the Lewis check). 8 Given that
Vanegas was not provided specific information regarding the identity of these witnesses and the
potential scope of their testimony until shortly before the trial, the Court concludes that his
decision not to contact witnesses before May 2, 2008, was reasonable under the circumstances in
light of the limited information he was provided regarding the four witnesses. Moreover, the
8
The information regarding Jaweed’s reputation as a liar was only placed on the record on
May 2, 2008, and, notably, Vanegas disclosed this information to the Court only after the Court
took a recess to allow Vanegas to consult with Mohammed regarding his decision whether or not
to continue the trial.
47
Court finds that Vanegas’ conduct was well within the wide range of reasonable professional
assistance. Indeed, it appears that the only piece of specific information that was provided to
Vanegas at an earlier time was the allegation regarding Jaweed’s alleged theft conviction and
Vanegas reasonably investigated the allegation by requesting a Lewis check and relying on
information provided to him by Mohammed.
Vanegas’ testimony during the evidentiary hearing highlights that he made reasonable,
strategic decisions, including the decision not to further pursue defense witnesses in Afghanistan,
based on the information that was before him at that time. Prior to trial, Vanegas considered the
information Mohammed claimed that these four witnesses could provide, considered the evidence
in the case, and, in light of that information, made the tactical decision that pursuing that
investigation would not be worthwhile. At the evidentiary hearing, Vanegas provided a sound and
reasonable explanation for his decision not to pursue character witnesses who would testify on
behalf of Mohammed. As Vanegas noted, he considered exploring whether there were character
witnesses who would bolster Mohammed’s character for truthfulness and/or his character for
peacefulness. Vanegas provided very specific and reasonable explanations for his decision not to
pursue these types of witnesses. First, Mohammed decided that he would not testify at trial because
he would be forced to explain his statements and admissions of criminal conduct on the recordings.
Second, any character witness would be subject to cross-examination regarding how his or her
view of Mohammed’s character could be squared with Mohammed’s own admissions of criminal
conduct on those recordings. Moreover, as Vanegas noted, pursuing this strategy also would allow
the recordings to be played again to the jury. With respect to Jaweed, those same concerns arose
that by presenting character witnesses to impugn Jaweed’s credibility it would present an
48
opportunity for the recordings to be played again. Moreover, Vanegas believed based on the
results of the Lewis check that he had no legal basis to present evidence of the alleged prior theft
conviction. The Court finds this strategic decision to be reasonable under prevailing professional
norms. Indeed, while “[c]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary,” Strickland, 466 U.S. at 691,
the Court finds that Vanegas’ decision not to investigate defense witnesses in Afghanistan was a
reasonable one animated by the information provided to him by Mohammed.
As a practical matter, the Court also notes that the record reflects that Vanegas did make
some efforts to determine the feasibility of investigating and securing defense witnesses from
Afghanistan at trial. However, it appeared to be logistically difficult particularly in light of the
fact that Vanegas had a short period of time, from some time in February 2008, when the issue of
the witnesses was first raised, until May 2008, to conduct this investigation as well as otherwise
prepare for trial. Moreover, it appears that specific information regarding the potential witnesses’
testimony was only provided to Vanegas shortly before trial in late April or early May. The
decision not to pursue the witnesses and focus on the recordings appears reasonable in light of the
evidence in the government’s case. Nonetheless, in May 2008, Vanegas indicated that if the trial
was continued, he would travel to Afghanistan, which was a war zone, at Mohammed’s request
and investigate the identified four witnesses.
Mohammed argues that Vanegas was unable to provide him with competent counsel at
the time when he was presented with the decision to proceed with trial as scheduled and have
certain evidence in the government’s case excluded or continue the trial at which time the
evidence at issue would likely be admitted and allow Vanegas to contact witnesses in
49
Afghanistan. Mohammed’s contention is that because Vanegas had not contacted any potential
witnesses in Afghanistan prior to that time, he could not provide sound advice to Mohammed
regarding the prudence of proceeding as scheduled or continuing the trial because he had no idea
what information these potential witnesses would provide. This argument fails for the reasons
described above. Vanegas reasonably relied on Mohammed to provide him with information
about the testimony that these four witnesses might be able to provide. Based on that information,
which was provided shortly before trial, Vanegas did not pursue this investigation further because
it was his view that the testimony would mostly either be inadmissible or harmful because it
would again draw attention to the recordings of Mohammed’s criminal conduct. At that time,
based on the information before him, Mohammed made a reasonable, strategic decision. See id.
(“[W]hen a defendant has given counsel reason to believe that pursuing certain investigations
would be fruitless . . . , counsel’s failure to pursue those investigations may not later be challenged
as unreasonable.”); United States v. McDade, 699 F.3d 499, 507 (D.C. Cir. 2012) (“[T]rial counsel
decided not to investigate for a combination of reasons, including the minimal impact the
substance of the testimony would have regardless of the credibility of the witness.”).
While it now appears that Vanegas might have uncovered some evidence of Jaweed’s
purported bias towards Mohammed if the trial had been continued, it was reasonable for Vanegas
to rely on Mohammed to inform him, which Mohammed did not do, that Jaweed was biased
against him, vowed to seek revenge against him, and to provide information about specific events
that would highlight this as a potential area of cross-examination. Indeed, although Mohammed
identified the jirga as a source of animosity between him and Jaweed and Mohammed had
personal knowledge of this event, he did not disclose this information to Vanegas prior to trial.
50
Moreover, during the April 22, 2008, pretrial hearing, the Court highlighted that the robbery/theft
accusation might be relevant if Mohammed was involved in the incident in any way. Mohammed
did not disclose pretrial that Mohammed was involved in the incident. In contrast, Mohammed
did inform Vanegas about Jaweed’s mother’s request to marry one of his sisters and about the
election which demonstrates that Vanegas and Mohammed did have discussions about
Mohammed’s relationship with Jaweed prior to trial. As such, it was reasonable for Vanegas to
assume that Mohammed would have brought to his attention these incidents supporting his claim
that Jaweed was biased. While appellate counsel uncovered evidence of potential bias on
Jaweed’s part, Vanegas 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. Indeed,
the Court accepts that if Mohammed had raised the issue of the jirga or Jaweed’s vow of revenge,
which he did not disclose, Vanegas would have pursued it.
Mohammed’s argument also fails because Mohammed has not demonstrated prejudice.
Indeed, while Mohammed contends that at a minimum, Vanegas should have contacted potential
witnesses by phone, the four witnesses Mohammed identified shortly before trial do not appear
to be listed among the phone numbers provided during discovery and Mohammed has not shown
that they were on this list. Moreover, even when these witnesses were contacted by appellate
counsel, presumably with the assistance of Mohammed’s nephew, they disclosed that Jaweed had
a reputation as a liar and cited to specific alleged criminal acts that did not appear in the results
of the Lewis check. While the information regarding Jaweed’s reputation as a liar may have been
admissible, Mohammed had already indicated he would not pursue that line of questioning
regarding the theft/robbery accusation against Jaweed during trial. Moreover, Desai makes no
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representation that any of the witnesses whom he contacted mentioned either the election or
Jaweed’s fight with Mohammed’s cousin, and no representation that the four identified witnesses
ever discussed the jirga. As such, even if Vanegas contacted these witnesses, Mohammed has
not established that these witnesses would have been able to testify that any animosity existed
between Mohammed and Jaweed.
Assuming arguendo that Mohammed had established that he identified these specific four
witnesses to Vanegas some time earlier than May 2, 2008, and that Vanegas would have been
able to contact them by phone (as discussed supra, these are two points that the Court expressly
finds Mohammed has not established), Mohammed has not demonstrated that had Vanegas
contacted these witnesses by phone sometime between February 2008 and May 2008, that it is
reasonably likely that the results of the proceeding would have been different. Importantly,
nowhere in the record has Mohammed alleged that if Vanegas contacted the potential witnesses
prior to the scheduled trial date and was given this information, that he would have made a
different decision regarding whether or not to continue the trial and permit time for Vanegas to
travel to Afghanistan to interview witnesses or to proceed with the trial in May 2008. To the
extent that Mohammed is now arguing that prior to trial Vanegas should have contacted witnesses
not specifically identified to him by Mohammed, the Court finds that Vanegas’ conduct did not
fall below an objective standard of reasonableness, based on the following: (1) the information
that was provided to him regarding the potential areas of testimony that these witnesses might
provide; (2) Vanegas’ own reasonable decisions about the potential impact of this testimony; (3)
the prudence of presenting that testimony at trial; and (4) the timing of when this information was
conveyed to him.
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While Vanegas now believes that he should have insisted on a continuance of the trial and
contacted potential witnesses, this is the type of “judgment call . . . which should not easily be
condemned with the benefit of hindsight.” United States v. Gordon, No. 12-3035, 2016 WL
1254687, at *2 (D.C. Cir. Mar. 10, 2016) (quoting United States v. Mullins, 315 F.3d 449, 453
(5th Cir. 2002)). Indeed, Vanegas noted that he would have investigated witnesses in Afghanistan
as requested by Mohammed had the continuance been granted. It appears that at least in part this
investigation would have been made to address evidence of Mohammed’s alleged connection to
the Taliban that was excluded at trial because it was not continued. As such, while it was
reasonable that Vanegas had not reached out to witnesses at that point in time and while Vanegas
acknowledged that he did not know what these potential witnesses would say, it does not appear
that in counseling Mohammed about the decision to the continue the trial or proceed as scheduled,
he had totally discounted the possibility that further investigation could be useful. Rather,
Vanegas indicated both during the pretrial May 2, 2008, hearing and during the evidentiary
hearing post trial that it was his view that he might have been able to glean new information,
including character evidence regarding Mohammed and Jaweed, from interviews with potential
witnesses in Afghanistan. Tr. 117:1-11 (May 2, 2008); Tr. 56:6-11 (Dec. 3, 2015). While the
Court concludes that it was reasonable for Vanegas not to have conducted interviews prior to May
2, 2008, for the reasons described, the record reflects that during the time he was counseling
Mohammed regarding the continuance request, he considered and discussed the possibility that
the witnesses could provide some useful information. However, after counseling Mohammed, it
was ultimately Mohammed who made the decision to proceed to trial as scheduled and expressly
abandon his request that Vanegas interview witnesses in Afghanistan given this choice. Notably,
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certain damaging evidence was excluded from trial as a result of Mohammed’s decision. Vanegas
counseled him based on the information that he had before him at the time and, as explained
above, the Court concludes the Vanegas’ decision not to interview potential witnesses in
Afghanistan prior to May 2, 2008, was reasonable based on what Mohammed had disclosed up
to that point.
Finally, in the interests of completeness, the Court shall briefly address an issue raised by
Mohammed during his testimony at the evidentiary hearing. Mohammed testified that Vanegas
advised him that even if he did not want to proceed to trial, the “police will tie you up and possibly
take you to Court.” Tr. 101:12-13 (Dec. 3, 2015). Mohammed asserted that this was the reason
that he did not discuss further with the Court his request for witnesses and agreed to proceed with
the trial as scheduled. Id. 101:13-14 (“And then this was the reason that I shut up my mouth and
I could not say anything further.”). Vanegas testified that he never advised Mohammed that he
would be tied up and dragged to Court, nor did he threaten him to go to trial. Id. 111:11-14,
112:19-20. The Court specifically credits Vanegas’ testimony that he “would never make any
such statement, and . . . certainly didn’t make it then.” Id. 111:13-14. As such, the Court does
not further consider this issue.
In sum, the Court finds that Vanegas’ performance did not fall below an objective standard
of reasonableness because, other than the information regarding the election, prior to the May 2,
2008, hearing, Vanegas was not informed that the four potential witnesses in Afghanistan could
testify as to Jaweed’s bias or of any underlying bases for this bias, including the jirga, that would
have triggered Vanegas to further investigate the issue. Moreover, the Court finds Vanegas made
reasonable, strategic decisions not to present testimony from the four potential witnesses
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identified by Mohammed. Finally, the Court finds that Mohammed was not prejudiced by
Vanegas’ failure to contact the witnesses because Mohammed has not demonstrated that the result
of the proceeding would have been different if Mohammed had contacted the four witness nor
has Mohammed alleged that he would have made a different decision regarding the choice to
continue the trial and allow Vanegas to travel to Afghanistan or proceed with the trial as scheduled
and have certain evidence excluded. In reaching these findings, the Court emphasizes that
Mohammed has not provided any sort of timeline as to when prior to trial he provided Vanegas
with specific information regarding the witnesses, including their names and what information
they could provide, nor has Mohammed established that the four witnesses he identified prior to
trial would have been reachable by phone or would have provided information about the jirga,
the vow of revenge, the election, the altercation between Jaweed and Mohammed’s cousin, or
more generally about Jaweed’s purported animosity towards Mohammed.
B. Failure to Object to Jaweed’s “Interpretations” of Taped Evidence
Mohammed next contends that Vanegas provided ineffective assistance because he failed
to object to Jaweed’s testimony regarding the audio and video recordings during trial that consisted
of his “interpretations” of recorded statements. Jaweed took the stand on the afternoon of Friday,
May 9, 2008, and the government’s direct examination of Jaweed concluded in the morning of
Tuesday, May 13, 2008. As such, the direct examination of Jaweed spanned nearly two full days
of trial. Mohammed argues that Jaweed at least 118 separate times during trial Jaweed provided
“interpretations” that should have been objected to as inadmissible pursuant to Federal Rule of
Evidence 701 restricting lay witness opinions and inferences. Def.’s Mot. to Vacate at 17-18.
Mohammed provides examples of such statements: Mohammed’s discussion of blowing
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up mines around “Dagosar” and “the Red Castle” referenced government cars; references to plans
to “fire missiles toward the airport” concerned Jalalabad airfield; Mohammed’s use of the word
“they” meant the Taliban; and certain words used by Mohammed meant “missiles.” Id. at 18.
At trial, Vanegas made an objection during Jaweed’s testimony during direct examination:
Q. On Line 60 when Khan Mohammed says: I will, God willing, speak with them,
this will be done and that, too, and the work will be ready. Who is Khan Mohammed
talking about speaking with?
MR. VANEGAS: Objection, Your Honor, can we approach?
SIDEBAR ON THE RECORD AS FOLLOWS:
MR. VANEGAS: Your Honor, I think that some of these questions call for just
speculation and there’s no foundation leading up to it. He basically says, who’s he
talking about, and I think he’s making a conclusion that Mr. Mohammed is actually
thinking something and it doesn’t seem like there’s a road to it as far as -- he’s just
– he’s asking for a speculation, and that’s how it comes out.
MR. STIGLITZ [Prosecutor]: Well, two things. First, I think as a participant to this
conversation the witness is in a very good position to understand exactly what Khan
Mohammed was talking about. It was incumbent upon his understanding of the
conversation in order for him to be having this conversation in order for him to be
having this conversation with Khan Mohammed. And, further, I guess under Rule
701, a lay opinion -- he’s entitled to give his opinion based on his personal
knowledge of his conversation with Khan Mohammed.
THE COURT: I think, Mr. Vanegas, that this is his understanding of what Khan
Mohammed is saying in terms of who he is referring to. I mean, it’s his view of
what’s being said in terms of why he is responding the way he is. He obviously
can’t look into Khan Mohammed’s mind, but he has an understanding of what this
conversation was about since they talked about back and forth, and it’s [sic] doesn’t
sound like he’s asking him questions to explain it. So, I think it’s what Jaweed
understands Khan Mohammed to be saying, just as you would with any
conversation. It doesn’t mean that he’s – I don’t see it as speculative, I see it as
what his understanding is. I mean, if you want to poke at this during cross-
examination you can, but as they go back and forth they appear to know what each
is saying to the other in response. There doesn’t seem to be any question that he
doesn’t understand, sequentially it looks like they know what each is saying to the
other. I think he’s entitled to say what he understands Khan Mohammed to be
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saying. If you want to word it more in the context of what do you understand that
Khan Mohammed is saying, then you can do it that way, and it’s his understanding,
you’re entitled to --
MR. VANEGAS: Okay.
SIDEBAR DISCUSSION CONCLUDED
Tr. 25:17—27:11 (May 12, 2008, a.m.). After this objection, which the Court overruled, Vanegas
did not object again to Jaweed’s testimony on this basis.
During the evidentiary hearing post trial, Vanegas testified that he perceived that during
Jaweed’s testimony regarding the recordings, Jaweed would embellish what was being said and
add things in. Tr. 27:21-28:4 (Dec. 3, 2015). After Vanegas made the objection that was
overruled, he made the decision not to continue objecting. Id. 31:5-11. Vanegas testified that he
made that decision because he did not want to give the jury the impression that he was trying to
keep something from being said, nor did he want to highlight Jaweed’s testimony by standing up
and having a bench conference. Id. 46:10-14. Ultimately, Vanegas believed that he was going to
continue to be overruled so he stopped objecting. Id. 46:13-16. Vanegas indicated that in
retrospect, he should have continued to object, id. 46:19-21, and made a standing objection to the
testimony, id. 46:24.
Mohammed’s ineffective assistance of counsel claim with respect to this issue fails for two
reasons. First, Vanegas has provided a sound reason for his strategic decision not to continue to
object. Specifically, Vanegas indicated that he did not want to draw more attention to Jaweed’s
testimony nor did he want the jury to perceive that he was trying to keep something from being
heard. While Vanegas now indicates that he thinks he should have continued to object or lodged
a standing objection, his decision at the time was reasoned and thought out. As such, Vanegas’
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decision not to continue objecting does not fall below an objective standard of reasonableness.
Second, Mohammed has not demonstrated that he was prejudiced by this alleged failure on
Vanegas’ part. In ruling on his objection, the Court made clear its view that the evidence at issue
was admissible. This Court noted, “I think he’s entitled to say what he understands Khan
Mohammed to be saying,” in order for Jaweed to explain his responses to the statements made by
Mohammed. It was the Court’s view that because Jaweed was a party to the recorded conversation,
he was permitted to explain his understanding of the conversation. Indeed, this was not testimony
from non-party witnesses giving an opinion as to what was being discussed. Jaweed was a party
to the conversations at issue and explained his understanding of what Mohammed was saying to
provide context for his own responses to Mohammed’s statements. See, e.g., United States v.
McGill, 815 F.3d 846, 882 n.4 (D.C. Cir. 2016) (“To the extent that appellants’ objections turn on
witnesses interpreting things that had been said to them or that they had overheard, a participant
to a conversation may provide his or her own interpretation of that conversation if there is a
nonspeculative basis for doing so.”) (citation omitted). Generally read in context as well as
considering the whole recorded conversations, Jaweed’s explanations are not speculative. As such,
this Court would have permitted the line of questioning to continue even over objection. Given
that the testimony still would have been admitted and still submitted to the jury, the Court cannot
conclude either that Vanegas’ performance was deficient or that there is a reasonable probability
that if Vanegas had lodged a further objection to the testimony at issue, that the results of the
proceeding would have been different.
C. Failure to Raise a Duress Argument at Sentencing
Finally, Mohammed argues in his briefing that his trial counsel was ineffective for failing
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to raise a duress defense at sentencing. Mohammed has provided no factual support for this claim.
Mohammed presented no testimony as to this issue at the evidentiary hearing post trial and
Mohammed did not address this claim in his reply brief. Tr. 134:20-24 (Dec. 3, 2015). However,
the Court shall briefly discuss this issue in the interest of completeness. In his briefing, Mohammed
argues that the evidence at trial demonstrated that Jaweed was fearful of the Taliban, and asserts
that since Jaweed approached Mohammed at the request of members of the Taliban, Mohammed
was equally fearful. Def.’s Mot. to Vacate at 20-21. Other than pointing to Jaweed’s testimony
regarding Jaweed’s own fear of the Taliban, Mohammed has presented no evidence that
Mohammed was fearful of the Taliban or that Mohammed indicated to Vanegas that he was fearful
of the Taliban or acted under duress. Mohammed spoke at his sentencing and never made any
statement that he was fearful of the Taliban or under duress. As such, the Court cannot conclude
that Vanegas was ineffective for failing to raise a duress argument at sentencing based on the mere
assertion that Jaweed, and not Mohammed, was fearful of the Taliban.
D. Request to Recharacterize Motion as Motion Brought Pursuant to 28. U.S.C. § 2255
At the conclusion of the evidentiary hearing, the government requested that the Court
deem Mohammed’s pending Motion to Vacate His Conviction, or in the Alternative for
Resentencing, Based on Ineffective Assistance of Counsel, as a motion brought pursuant to 28
U.S.C. § 2255. Tr. 149:24—150:1 (Dec. 3, 2015). At the Court’s request, the parties have now
fully briefed this issue. The government argues that this Court should construe the pending
motion as a motion brought pursuant to 28 U.S.C. § 2255 because Mohammed in his briefing
added additional grounds for his ineffective assistance of counsel claim before this Court, Govt.’s
Reply to Mot. to Re-Characterize Def.’s Mot. as § 2255 at 1-2, and because his pending motion
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is functionally equivalent to a § 2255 motion, see generally Govt.’s Mot. to Re-Characterize
Def.’s Mot. as § 2255.
While the Court agrees that Mohammed’s ineffective assistance of counsel claim is one
that may be and often is raised pursuant to § 2255, the Court finds no basis to construe it as such
in this instance. Indeed, this matter is on remand from the D.C. Circuit in order for this Court to
hold an evidentiary hearing and expand the record on Mohammed’s ineffective assistance of
counsel claim. As the parties note, the D.C. Circuit is unique in that it is the only circuit that
allows ineffective assistance of counsel claims to be raised on direct appeal, rather than only
through a 28 U.S.C. § 2255 motion. Mohammed, 693 F.3d at 205 n.1 (Kavanaugh, J., concurring).
In adopting this procedure, the D.C. Circuit has recognized its “typical practice on direct appeal .
. . to remand ‘colorable’ claims of ineffective assistance to the district court.” United States v.
Knight, No. 14-3010, -- F.3d --, 2016 WL 3213023, at *5 (D.C. Cir. Jun. 10, 2016). In light of
the D.C. Circuit’s practice of permitting ineffective assistance of counsel claims to be raised on
direct appeal, the Court shall deny the government’s request to re-characterize the pending motion
as one brought under § 2255, particularly at this late stage of the proceeding.
IV. CONCLUSION
For the foregoing reasons, the Court finds no reason to set aside Mohammed’s conviction
or sentence at this time based on his ineffective assistance of counsel claim. Accordingly,
Mohammed’s [118] Motion to Vacate His Conviction, or in the Alternative for Resentencing,
Based on Ineffective Assistance of Counsel is DENIED, Mohammed’s [137] Motion for Hearing
on Pending Motion to Vacate Conviction or in the Alternative for Resentencing is DENIED AS
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MOOT, and the Government’s [161] Motion to Re-Characterize Defendant’s March 1, 2013 filing
As a Motion Pursuant to 28 U.S.C. § 2255 is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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