Appeal from the United States District Court for the District of Columbia (No. 1:06-cr-00357-1)
The opinion of the court was delivered by: Griffith, Circuit Judge:
Reissued September 21, 2012
Before: SENTELLE, Chief Judge, GRIFFITH and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge KAVANAUGH.
Khan Mohammed challenges his conviction and life sentence for narcoterrorism. He also claims that his trial counsel provided ineffective assistance. We affirm Mohammed's conviction and sentence but remand for the district court to hold an evidentiary hearing on the claim of ineffective assistance.
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, 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.
On October 29, 2006, the DEA and Afghan police arrested Mohammed at a roadside checkpoint. They blindfolded and handcuffed him and drove him to a DEA base at the Jalalabad airfield. He was briefly held in a detention cell without handcuffs or blindfold and then taken to a room to be questioned about the drug deals and the planned attack on the airfield. During his interrogation, Mohammed was neither blindfolded nor shackled. The record is unclear whether he was handcuffed. Three DEA agents conducted the questioning, one wearing a visible sidearm.
Speaking through an interpreter, DEA Special Agent Jeffrey Higgins read Mohammed the Miranda warnings, which were translated into Pashto, his native language. Higgins asked Mohammed if he understood the warnings. Mohammed said that he did. Thinking Mohammed illiterate, Higgins did not ask him to sign a rights card or a waiver form. Mohammed told Higgins that he was willing to answer questions, and the interview began. It lasted about two hours, including a short break. Mohammed showed no distress during the questioning or any difficulty understanding the interpreter. He was given food and water, a prayer rug and the opportunity to pray, and was allowed to use the bathroom. Questioning took place in a conversational tone and none of the DEA agents threatened Mohammed, although one told him, falsely, that his hands had tested positive for heroin. At no time did Mohammed ask for an attorney or that the questioning stop. At the end of the interrogation, the DEA agents told Mohammed that he was being charged with drug trafficking and terrorism under U.S. law. He was later transferred to the United States for trial.
With trial scheduled for May, in January 2008 Mohammed moved to suppress the statements he made during his questioning at the airfield on the ground that his Miranda waiver was involuntary. On April 30, the district court denied his motion, concluding that he understood the Miranda rights and the consequences of giving them up. Tr. Status & Mots. Hr'g 18:12-18, Apr. 30, 2008. On May 1, with jury selection set to begin in a week, Mohammed moved for a three-month continuance of the trial. Summoned to an ex parte hearing the next morning, Mohammed's counsel expressed to the court his fear that he had "been ineffective in assisting [Mohammed]" by failing to follow up on his lead that witnesses in Afghanistan would rebut the government's allegation that he was part of the Taliban. Tr. Ex Parte Sealed Discussions 5:23-6:3, May 2, 2008. Counsel also asked for more time to prepare to examine the government's narcoterrorism expert. Hearing this, Mohammed asked the court for new counsel. The court convened a second ex parte hearing that afternoon to address his request. Speaking directly to the court at that hearing, Mohammed argued that his attorney could have obtained evidence that he was not part of the Taliban and that Jaweed was a thief. The court reminded Mohammed that he had already lodged the theft allegation against Jaweed, that the court had previously decided it lacked corroboration, and that Mohammed had agreed not to pursue the allegation at trial.*fn1 Mohammed's counsel added that these witnesses might undermine Jaweed's credibility more generally by saying he was a liar. But under questioning by the court, he could point to no basis to believe that they would. Asked why he had not already tracked down these potential witnesses, Mohammed's counsel claimed there were "insurmountable" logistical problems with traveling to Afghanistan to locate and bring them to the United States. Id. at 36:13-37:5. His trial preparation had focused on other issues instead. The court then called yet another hearing that same day, this time with all the parties. Learning of Mohammed's concerns, the government announced to the court that it would not seek to link him to the Taliban. Hearing that, Mohammed, through his counsel, agreed to withdraw his motion for a continuance and proceed to trial.
The government put on its case in four days. Two of these days were taken up with Jaweed's testimony. Mohammed's counsel called no witnesses and offered no evidence, and Mohammed did not take the stand. On May 15, 2008, a jury found Mohammed guilty of international drug trafficking, 21 U.S.C. §§ 959(a)(1), (2), and drug trafficking with intent to provide financial support to a terrorist, id. § 960a. At sentencing, Mohammed objected to the recommendation in the Presentencing Report that the court apply the terrorism enhancement of the Sentencing Guidelines. The court found no basis for the objection and applied the enhancement, but explained that it could have exercised its discretion under § 960a to impose the same sentence even without the enhancement. The district court sentenced Mohammed to two concurrent life sentences.
Mohammed does not challenge his conviction for international drug trafficking. He appeals only his conviction and sentencing for narcoterrorism. He also raises a claim of ineffective assistance of counsel. We take ...