United States v. Mohammed

• Decision Date: 18 July 2022
• Docket Number: Criminal 06-357 (CKK)
• Parties: UNITED STATES OF AMERICA, v. KHAN MOHAMMED, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA,
v.
KHAN MOHAMMED, Defendant.

Criminal No. 06-357 (CKK)

United States District Court, District of Columbia

July 18, 2022

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

In December 2021, this Court granted Defendant's motion to vacate his narcoterrorism conviction and to resentence him. See December 21, 2021 Order and Memorandum Opinion, ECF Nos. 208, 209. Mr. Mohammed is scheduled for resentencing by this Court on July 19, 2022, on his remaining conviction for distribution of heroin. The parties disagree as to whether a sentencing enhancement - based on commission of an offense that intended to promote a federal crime of terrorism - is applicable. Upon consideration of the record in this case and the briefing by the parties on this issue, the Court finds that this sentencing enhancement is applicable.

I. Background^[1]

On May 15, 2008, Khan Mohammed (“Defendant” or “Mr. 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 (“narcoterrorism”)

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(Count II). See Verdict Form, ECF No. 62. On December 22, 2008, this Court sentenced Mr. Mohammed to concurrent terms of life imprisonment on Counts I and II. See Judgment in a Criminal Case, ECF No. 84, at 3.

Defendant filed a timely appeal and as part of that appeal, Mr. Mohammed argued that his trial counsel was ineffective for failing to adequately investigate certain evidence that Defendant asserts would have strengthened his defense. See generally United States v. Mohammed, 693 F.3d 192, 202-204 (D.C. Cir. 2012) (“Mohammed I”). On September 4, 2012, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) upheld Mr. Mohammed's conviction and sentence but remanded the case for this Court to conduct an evidentiary hearing on Defendant's claim of ineffective assistance of counsel to determine if Defendant was prejudiced as to the narcoterrorism charge because of his counsel's deficient performance. Id. at 204-205.

After the matter was remanded to this Court, Mr. Mohammed filed his [118] Motion to Vacate his Conviction, or in the Alternative for Resentencing, which was premised on ineffective assistance of counsel claims, and this Court held an evidentiary hearing relating to Defendant's motion to vacate and denied subsequently that motion. Defendant appealed from that decision, and the D.C. Circuit affirmed in part, vacated in part, and remanded to this Court for “further proceedings consistent with [their] opinion.” See United States v. Mohammed, 863 F.3d 885, 893894 (D.C. Cir. 2017) (“Mohammed II”) (“On the current record, and without additional district court findings, we cannot assess what a reasonable investigation in 2008 could have found.... [and therefore,] [r]econstruction of what a reasonable investigation [by counsel] could have uncovered . . . [is a] step [that] must be taken on remand.”)

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More specifically, the D.C. Circuit determined that Mr. Mohammed's counsel was deficient because he had “failed to take the obligatory step of calling potential witnesses[,]” in Afghanistan, to try to impeach the credibility of the Government's witness [Jaweed, the Government informant] and demonstrate bias, id. at 890, and such “failure to place calls or otherwise reach out to potential witnesses [could] not be traced to any strategic decision.” Id. at 891. The D.C. Circuit affirmed the Defendant's drug trafficking conviction, noting that Defendant was not prejudiced because he was “convicted based on [his] own words” on the drug trafficking charge. Id. at 892. In contrast, the D.C. Circuit indicated that “[o]n the existing record, [it] [could] not exclude the possibility of prejudice as to the narcoterrorism conviction [as] Jaweed's testimony was the only evidence that linked Mohammed to the Taliban [and] [i]t thus provided critical support for the narcoterrorism charge.” Id. Accordingly, the D.C. Circuit concluded that “it is reasonably probable that the jury would not have convicted Mohammed [on the narcoterrorism charge] if Jaweed's testimony could have been effectively undermined.” Id. While this Court focused previously on the four potential impeachment witnesses named by Mr. Mohammed, the D.C. Circuit found this was “too limited” and charged this Court with “reconstruct[ing] what an adequate investigation in 2008 could have uncovered and how counsel could have used that information at trial (as fodder for cross-examination as well as direct testimony).” Id. at 893.

Subsequent to that remand by the D.C. Circuit, the parties explored options regarding the “reconstruction” of a reasonable investigation, and eventually, defense counsel retained the services of a company in Afghanistan to “arrange for an Afghan court to take sworn testimony of Mr. Mohammed's witnesses, transcribe the testimony and provide it to counsel.” May 6, 2019 Minute Order. Because there was a dispute regarding the Government's opportunity to cross

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examine the witnesses, the Court held a status conference on August 20, 2019, to try to resolve how to proceed. The Defendant was ordered to provide to the Government a copy of any affidavits obtained, and “[u]pon review of the sixteen affidavits, the [G]overnment withdr[e]w its request for formal depositions of the defense witnesses” and “consent[ed] to the admissibility of the affidavits for the limited purpose of considering the merits of Defendant's ineffective assistance of counsel claim.” See Joint Status Report, ECF No. 196, at 2.^[2] Thereafter, the Court set a briefing schedule for the parties regarding Defendant's [200] Motion to Vacate, which was based on his claim of ineffective assistance of counsel.

Upon consideration of the briefing provided by the parties, this Court found that Mr. Mohammed was prejudiced by ineffective assistance of counsel regarding the narcoterrorism charge. “In assessing prejudice, the ultimate question is whether Mohammed has shown a reasonable probability that adequate investigation would have enabled trial counsel to sow sufficient doubt about Jaweed's credibility to sway even one juror.” Mohammed II, 863 F.3d at 892 (internal quotation marks and citation omitted). This Court concluded that “the impact of Jaweed's testimony could have been undermined, at least partially,” by evidence of his alleged bias and that evidence “may have swayed at least one member of the jury to (at least partially) discredit Jaweed's testimony.” Mem. Op., ECF No. 209, at 25. Accordingly, the Court granted the Defendant's motion to vacate the narcoterrorism conviction (Count Two) and resentence Mr. Mohammed on the drug trafficking charge. See Order, ECF No. 208. The Court established a

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briefing schedule for the parties to file memoranda in aid of resentencing and, as previously noted, Defendant's resentencing is set for July 19, 2022.

On April 8, 2022, the Probation Office filed its [215] Final Presentence Investigation Report (“PSR”). On June 3, 2022, the Government filed its [224] Memorandum in Aid of Resentencing (“Govt. Mem.”), and the Defendant filed his [225] Sentencing Memorandum (“Def. Mem.”). On June 17, 2022, Defendant filed his [226] Response to the Government's Sentencing Memorandum (“Def.'s Response”), and the Government filed its [227] Response to Defendant's Sentencing Memorandum (“Govt. Response”). The Court has considered the briefing by both parties as well as the PSR filed by the Probation Office.

The parties disagree on the application of a “Victim Related Adjustment” (applicable where “the offense is a felony that involved, or was intended to promote, a federal crime of terrorism”) (hereinafter referred to as “terrorism enhancement”). This terrorism enhancement adds 12 levels to Defendant's base offense level of 30 on Count One (Distribution of One Kilogram or More of Heroin Knowing that the Substance Would Be Unlawfully Imported into the United States), resulting in an offense level of 42 and a Guideline sentencing range of 360 months to life. See PSR, ECF No. 215, at 9-10, 13.^[3] Defendant explains that the “U.S. Probation Office recommends a sentence of 348 months' imprisonment and 60 months of supervised release with the special condition that [Defendant] comply with deportation proceedings [,] . . . [while] [t]he government seeks a life sentence.” Def.'s Mem., ECF No. 225, at 3 (internal citations omitted).

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Defendant asserts however that without the 12-level terrorism enhancement, “the proper Guideline range is 97 to 121 months.” Id. at 23.

The Government contends that the terrorism enhancement is applicable because: “[f]irst, the defendant's own admissions, recorded on audio and video and admitted into evidence at trial, support the application of the terrorism enhancement [and] [s]econd, the Court should credit Jaweed's testimony at trial to further support the application of the terrorism enhancement.” Govt. Mem., ECF No. 224, at 1. In contrast, Defendant argues that:

[F]irst, the post-conviction history of this case found that Mr. Mohammed was not afforded effective assistance of counsel in challenging Jaweed's testimony, which was central to the government's case. Second, the only link between Mr. Mohammed and a crime of terrorism was that established by Jaweed's testimony. Third, counsel for Mr. Mohammed established that an adequate investigation in 2008 would have provided numerous grounds on which to impeach Jaweed's testimony, including extensive evidence of bias and motive to lie. Because of the considerable infirmities in Mr. Mohammed's representation at trial, the only fair - and

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