United States v. Khaled Shabban

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 3, 2014 Decided April 3, 2015
No. 12-3007
UNITED STATES OF AMERICA,
APPELLEE
v.
KHALED MOHAMED SHABBAN, ALSO KNOWN AS KHALED
SHABBAN, ALSO KNOWN AS KHALED MUHAMAD RASHAD
SHABBAN, ALSO KNOWN AS MOHAMED RASHAD KHALED,
ALSO KNOWN AS KHALED MOHAMED RASHAD MOHAMED,
ALSO KNOWN AS KHALED MOHAMED RASHAD MOHAMED
MAHMOUD SHABBAN, ALSO KNOWN AS KHALED RASHAD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00290-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the brief was A.J.
Kramer, Federal Public Defender.
David P. Saybolt, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman,
Chrisellen R. Kolb, and Carolyn K. Kolben, Assistant U.S.
Attorneys.
2
Before: GRIFFITH and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Khaled Shabban challenges his
conviction for international parental kidnapping on the ground
that his trial counsel gave him constitutionally defective
assistance. We disagree and affirm his conviction.
I
Shabban is an Egyptian national who met Araceli
Hernandez, a Mexican national, in Washington, D.C. 1 They
had a son together in August 2001. Because the couple did not
live together, they entered into a consensual order governing
the custody of their son in the Superior Court of the District of
Columbia. The parties agreed that Hernandez would have
primary physical custody of the boy, Shabban would have
unsupervised visitation rights, and that their son would “‘not
be removed from the country without the express[] written
consent of both parties.’” United States v. Shabban, 612 F.3d
693, 694 (D.C. Cir. 2010) (quoting Trial Tr. 203 (June 19,
2007)) (alterations in original). Despite this agreement, three
years after entering into the custody order, Shabban began
preparing to take his son to Egypt without Hernandez’s
permission. He sold his coffee business and made
1
The facts stated here are taken largely from our earlier
description of this case in Shabban’s first appeal. See United States
v. Shabban, 612 F.3d 693 (D.C. Cir. 2010). In that case, Shabban
argued that his conviction was not supported by sufficient evidence
and that his trial counsel’s performance was defective. We found
sufficient evidence to sustain the conviction, but remanded for an
evidentiary hearing on the ineffective assistance of counsel claim.
3
arrangements for his roommate to take over the lease on their
apartment. He told his roommate of his plan to take the boy to
Egypt and claimed that Hernandez did not care. Shabban
called Hernandez on November 21, 2004, and asked if he
could take their son to an amusement park. Hernandez agreed.
Later that day, she tried to call Shabban, but he did not
answer. She went to his apartment, but he was not there. That
evening, Shabban and his son boarded a flight to Cairo, with
Shabban flying under the name “Khaled Rashad.” A week
later, Shabban called Hernandez and told her that he and their
son were in Egypt. Hernandez contacted the authorities and
eventually worked with the FBI over the course of the next
twenty-two months to convince Shabban to bring the child
back to the United States.
During their conversations, which were taped, Shabban
referred to their son’s difficulty learning to communicate and
told Hernandez that he had taken the child to Egypt to learn a
single language, Arabic, rather than the three he was hearing
at home, Arabic, Spanish, and English. Shabban admitted
taking the child without the permission of Hernandez. Upon
the FBI’s advice, Hernandez asked and eventually convinced
Shabban to return their son to the United States in time for the
next school year. Federal agents arrested Shabban at the
airport when he arrived in New York. After his arrest,
Shabban told the FBI that he had taken his son to Egypt
because the child was having difficulty speaking and
understanding others. Shabban also admitted that Hernandez
would not have given him permission to take the child abroad
had he asked first.
Shabban was charged with international parental
kidnapping in violation of 18 U.S.C. § 1204(a), which makes
it a crime to “remove[] a child from the United States, or
attempt[] to do so . . . with intent to obstruct the lawful
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exercise of parental rights.” At trial, Shabban argued that he
lacked the specific intent to obstruct Hernandez’s parental
rights that the statute requires because his sole purpose in
taking their son was to place him in an environment that
would improve his speech. Shabban’s trial counsel pursued
this defense by introducing recordings of Shabban’s phone
calls with Hernandez and cross-examining Hernandez and
FBI witnesses. The prosecution argued that while Shabban no
doubt intended to help his son, he also intended to obstruct
Hernandez’s rights, which was all that was needed to support
a conviction. The jury agreed with the prosecution and
convicted Shabban. The trial judge sentenced him to thirty-six
months’ imprisonment.
Shabban appealed, arguing that there was insufficient
evidence to support his conviction and that his trial counsel’s
performance was defective for numerous reasons, including
that he failed to call a school teacher and a social worker, both
of whom worked with the child at school and would have
testified that he had problems with speech and
comprehension. We rejected Shabban’s challenge to the
weight of the evidence but remanded his claim of ineffective
assistance for an evidentiary hearing. See Shabban, 612 F.3d
at 697-98; see also United States v. Rashad, 331 F.3d 908,
909-10 (D.C. Cir. 2003) (“Due to the fact-intensive nature of
the [ineffective assistance of counsel] inquiry . . . this court’s
general practice is to remand the claim for an evidentiary
hearing.”) (internal quotation marks omitted).
At the hearing, the district court considered affidavits
from Shabban and his trial counsel, Steven McCool, along
with testimony from McCool. In Shabban’s affidavit he
alleged that “[t]he social worker and teachers at my son’s
school said that my son was slow [and] that he should be put
into some kind of ‘special education’ class.” J.A. 76. Shabban
5
averred that he had given McCool the name of his son’s
teacher and the school’s contact information. He asked, “[i]f
Mr. McCool was able to locate my son’s teacher and
interview her, why did he not ask her about the social
worker’s name because they worked in the same school? And,
why did he not ask them to come to the Court to testify about
my son’s condition[?]” J.A. 77.
In his affidavit, McCool replied that he had hired an
investigator who visited the child’s school. The investigator
did not interview the social worker because Shabban “did not
provide the name of [his son’s] social worker.” J.A. 52. In any
event, according to McCool, any testimony the social worker
could have provided was already before the jury because “Ms.
Hernandez testified [at trial] that a social worker told her that
[her son] had difficulty with verbal communication.” J.A. 52.
According to McCool’s affidavit, the investigator interviewed
the principal, who “would not have provided evidence
favorable to Mr. Shabban,” and the child’s teacher, who
“would not have provided evidence unfavorable to Mr.
Shabban.” J.A. 51-52. But at the evidentiary hearing, McCool
testified somewhat differently. The teacher’s testimony, he
asserted, would not have been favorable to Shabban and
would have been consistent with the principal’s testimony.
The teacher would have testified that even though the child
“did indeed have some language difficulties, . . . he was
progressing at school, and . . . that there was no need to take
him to Egypt for three years to work on his language
difficulties.” Evid. Hear. 12.
The district court denied Shabban’s claim of ineffective
assistance of counsel, holding that McCool had thoroughly
investigated the teacher, found that her testimony would have
been unfavorable (without mention of the contradictory
affidavit), and made an informed decision not to call her as a
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witness. This was a “strategic choice” to which the court was
required to defer. See Strickland v. Washington, 466 U.S. 668,
690-91 (1984). As for the social worker, the court determined
that even if McCool should have done more to find her,
Shabban suffered no prejudice because Hernandez had
testified at trial about the social worker’s concerns with the
boy’s language skills. Shabban now appeals. We have
jurisdiction under 28 U.S.C. § 1291.
II
An appellant claiming ineffective assistance of counsel
must show: (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.” Strickland, 466 U.S. at 687, 694.
Although we review the district court’s factual findings for
clear error, the standard of review for a claim of ineffective
assistance of counsel is unsettled in this circuit. Such a claim
presents mixed questions of law and fact, which are
sometimes reviewed de novo and sometimes only for abuse of
discretion. See United States v. Toms, 396 F.3d 427, 432-33
(D.C. Cir. 2005). We have not yet decided which should
apply because we have not yet confronted an ineffective
assistance of counsel claim in which the standard made a
difference. See id. And we see no reason to select between the
standards now, because Shabban’s claim “fails even under the
more searching de novo standard.” Id. at 433.
A
First, we must ask whether trial counsel’s performance
was deficient. Our review is “highly deferential” with “a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland,
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466 U.S. at 689. Counsel’s strategic choices made after
thorough investigation are “virtually unchallengeable.” Id. at
690.
Shabban challenges McCool’s decision not to call the
teacher as a witness. Before we can determine whether this
decision was deficient, we must ask whether the district court
erred in finding that McCool concluded that the teacher’s
testimony would have been unfavorable to Shabban.
According to Shabban, the teacher would have testified that
his son had difficulty speaking and understanding English,
which would have bolstered his defense that he had no other
aim in taking his son to Egypt but to help him. See J.A. 76-77.
Shabban points to the statement in McCool’s affidavit that the
teacher “would not have provided evidence unfavorable to
Mr. Shabban.” J.A. 51-52. But at the hearing, McCool
contradicted his affidavit and clearly explained that the
teacher’s testimony would not have helped Shabban. Instead,
she would have testified that, despite some difficulties, the
child was “progressing at school” and that “there was no need
to take him to Egypt for three years to work on his language
difficulties.” Evid. Hear. 12. The district court credited
McCool’s testimony at the hearing and found that he did not
call the teacher to the stand because he determined that her
testimony would not have been favorable to Shabban. This
factual finding was not clearly erroneous. Though the district
court made no mention of the contradictory affidavit, it was
reasonable for the court to conclude that the more detailed
hearing testimony was accurate. The language in the affidavit,
it seems, likely contained an unfortunate typographical error
that created an unintended double negative. The statement
that the teacher’s testimony “would not have been
unfavorable” likely should have said that it “would not have
been favorable,” a description that is supported by McCool’s
8
testimony. Thus, the district court did not clearly err and we
uphold its findings.
We have no trouble concluding that McCool’s decision
not to call the teacher to testify was well within the “wide
range of reasonable professional assistance.” Strickland, 466
U.S. at 689. It was only after McCool interviewed the teacher
and learned that what she had to say would have been
unfavorable to Shabban that he decided not to call her as a
witness. Such a judgment based on a thorough investigation is
precisely the kind of “sound trial strategy” that Strickland
directs us to protect from challenge. See id. (internal quotation
marks omitted).
Nor was McCool deficient in failing to call the social
worker to testify. Shabban argues that, like the teacher, the
social worker “presumably could have testified with more
expertise and authority” than Hernandez about the child’s
communication difficulties. Although this may be true, as
McCool explained, not only did Shabban never identify the
social worker to him, but McCool did not recall Shabban ever
telling him that his son saw a social worker at school. We find
it reasonable that McCool “would not have asked [an
investigator] to identify a social worker that [he] was not
aware of.” Evid. Hear. 13. Shabban does not counter
McCool’s version of the events, but argues that McCool
would have found the social worker with a more diligent
investigation of the school. We disagree. McCool took
adequate measures to locate witnesses at the child’s school.
After concluding that both the teacher and the principal would
provide testimony unfavorable to Shabban, McCool
determined that no further investigation was needed. Under
the circumstances, this decision was reasonable. McCool was
“entitled to . . . balance limited resources in accord with
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effective trial tactics and strategies.” Harrington v. Richter,
562 U.S. 86, 107 (2011).
B
Not only does Shabban fail to show that McCool’s
performance was defective, we also conclude that he has not
shown any prejudice. Even had the social worker and teacher
testified about the child’s language difficulties, evidence of
this kind was already introduced at trial through recorded
phone calls between Hernandez and Shabban, Hernandez’s
own testimony, and testimony from an FBI agent who
interviewed Shabban. As the district court stated at the
evidentiary hearing, “there is no question the trial established
that [Shabban’s] son suffered from language and
communication problems. There is no question that he took
his son, in his eyes, to Egypt to improve his language
communication problems. All of that was brought out at
trial.” Evid. Hear. 111. Thus, any testimony from the teacher
or social worker would have been cumulative only. See
United States v. Mitchell, 216 F.3d 1126, 1131 & n.2 (D.C.
Cir. 2000); see also Toms, 396 F.3d at 434-35. More
importantly, this testimony could not have undermined the
significant evidence that Shabban was aware his actions
would obstruct Hernandez’s parental rights. The statute
requires only an “intent to obstruct” parental rights, 18 U.S.C.
§ 1204(a), and as Shabban conceded, evidence of multiple
motives does not exonerate a defendant where there is
evidence of the requisite intent. See Shabban, 612 F.3d at 696.
Shabban argues that the testimony from the teacher and the
social worker would have established his intent to help his son
with language development. Maybe so. Regardless, that
testimony in no way diminishes the substantial evidence that
indicates Shabban’s intent to obstruct Hernandez’s parental
rights, including his lies to Hernandez about his plans for their
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child and his admission to the FBI that she would not have
given him permission to take their son. Shabban’s actions
directly violated the custody agreement he signed. The
government therefore demonstrated the intent the statute
requires. Shabban’s attempt to prove that he had some
additional motive accomplishes nothing so long as the
evidence of his intent to impede Hernandez’s rights remains
unchallenged. Thus, Shabban’s ineffective assistance of
counsel claim fails on both Strickland prongs.
III
For the foregoing reasons, the conviction is affirmed.