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Khan v. United States

United States Court of Appeals, Eleventh Circuit

July 3, 2019

HAFIZ MUHAMMAD KHAN, Petitioner-Appellant,
UNITED STATES OF AMERICA, Respondent-Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 1:16-cv-24483-RNS, 1:11-cr-20331-RNS-1

          Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.


         This appeal requires us to decide whether an attorney's disregard of a court instruction to obtain the official consent of a foreign government to conduct video depositions on its soil constitutes ineffective assistance of counsel per se. A grand jury indicted Hafiz Muhammad Sher Ali Khan; two of his sons, Irfan and Izhar Khan; his daughter, Amina Khan; his grandson, Alam Zeb; and his business associate, Ali Rehman, on terrorism-related charges. Khan was charged with conspiring to provide and providing or attempting to provide material support to terrorists, 18 U.S.C. § 2339A, and conspiring to provide and providing or attempting to provide material support to a designated foreign terrorist organization, id. § 2339B. Khan and Izhar proceeded to trial. The government dismissed the charges against Irfan, and efforts to extradite Rehman, Zeb, and Amina from Pakistan were unsuccessful. Before trial, Khan moved to depose several witnesses-including codefendants Rehman, Zeb, and Amina-in Pakistan via live video teleconference. The district court granted the motion on the condition that Khan's attorney, Khurrum Wahid, obtain formal permission from the Pakistani government to conduct the depositions. After Wahid failed to obtain that permission, the district court allowed the depositions to proceed anyway. At trial, Khan presented the testimony of Rehman, but the video feed abruptly ended before the other witnesses could testify, potentially because Pakistani officials cut the internet signal. Left without the testimony of these witnesses, Khan testified in his defense. The jury disbelieved him and convicted him on all charges. We affirmed. United States v. Khan, 794 F.3d 1288 (11th Cir. 2015). Khan then moved to vacate his sentence, 28 U.S.C. § 2255, on the ground that Wahid's failure to seek formal approval from the Pakistani government constituted ineffective assistance of counsel. The district court denied Khan's motion on the grounds that Wahid's performance was not deficient and alternatively that Khan suffered no prejudice. We affirm.

         I. BACKGROUND

         We divide our discussion of the background of this appeal in two parts. First, we provide an overview of the evidence supporting Khan's convictions. Second, we explain the events at trial that form the basis of Khan's claim of ineffective assistance of counsel and the course of later proceedings.

         A. Khan's Efforts to Support the Pakistani Taliban.

         In December 2007, militant Islamist groups in Pakistan united to form the Tehrik-e-Taliban Pakistan, a militant group dedicated to overthrowing the government of Pakistan through violent revolution, establishing Sharia law, and expelling the United States and its allies from Afghanistan. The Pakistani Taliban uses murders, kidnappings, and bombings to perpetrate its jihad against the government of Pakistan and the Western world, and it has killed more than 30, 000 Pakistanis through its acts of terrorism. The Pakistani Taliban is closely affiliated with al Qaeda, which provides training, money, and ideological support to Taliban militants. In September 2010, the State Department designated the Pakistani Taliban a foreign terrorist organization.

         Khan is an imam from the Swat Valley, a region of northern Pakistan near the Afghan border that is a hotbed of Taliban activity and was under the dominion of Taliban forces from mid-2008 to April 2009. Since 1967, Khan has operated a madrassa in his native village in Swat. Khan moved to the United States in 1994, where he became a United States citizen and the imam at a Florida mosque. Notably, in 2009, the madrassa was temporarily closed by the government of Pakistan as a result of its connections with the Taliban.

         From 2008 to 2012, Khan collected and sent money to the Pakistani Taliban through his coconspirators, including his codefendants Amina, Zeb, and Rehman. The government's evidence that he had done so consisted primarily of Khan's own words, which were recorded in thousands of telephone calls intercepted by the government under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq., and in consensual recordings of conversations with a confidential source. The government also presented financial records of Khan's activities.

         The recordings left no doubt about Khan's enthusiasm for the Taliban and terrorism. In one recording, Khan said that he considered the Taliban "the right fix." In another, he stated that "there needs to be an utmost effort . . . that . . . bombings take place" at Pakistani courts applying common law instead of Sharia until "all their traces are erased." Khan said that he wanted to "tear . . . to pieces and soak . . . in blood" "whoever is against the Sharia system!" He called for "Allah [to] bring about a revolution like Khomeini's" Iranian Revolution. Khan also repeatedly praised acts of terrorism. He said that he wished Islamic terrorists would conduct a bombing of the National Assembly of Pakistan comparable to the Taliban's 2008 suicide bombing of the Marriott Hotel in Islamabad. He praised a 2009 attack on New York City carried out by al Qaeda by stating "al-Qaeda people are awesome." When discussing a 2010 attempt by the Taliban to detonate an explosive device in New York City's Times Square, Khan said "[i]t would have been great had it worked out." He singled out one Taliban attack that killed ten Pakistanis for special praise because the victims "[w]ere Christians." Khan celebrated Taliban attacks on American forces in Afghanistan. And he called for the deaths of thousands and prayed for "the Taliban [to be] victorious over" "the whole world."

         In conjunction with the financial records, the recordings also established that Khan repeatedly sent money to the Pakistani Taliban and its fighters. Among the militants to whom he sent money was his nephew, Abdul Jamil. Khan described Jamil as "a big agent of Taliban" and a potential suicide bomber. In July 2009, Khan learned that Jamil had been injured while fighting alongside Shah Dauran, the deputy chief of the Swat chapter of the Pakistani Taliban who was known as "the Butcher of Swat." In recorded calls, Khan discussed sending money to Jamil, who was hiding from the Pakistani Army, through his daughter Amina. And on July 16, 2009, Khan sent $900 through his son Izhar via Western Union to Amina in Pakistan, which she delivered to Jamil. The next day, Khan had Irfan wire $500 that they had collected through the mosque to Pakistan. Khan told one donor that her contribution would be sent to "suffering" people in Swat, but he left a voicemail for Izhar telling him the money was "for the Mujahideen." A few weeks later, Amina assured Khan that she had given Jamil 20, 000 rupees, and Khan instructed her to give Jamil 30, 000 more. Amina later told Khan that Jamil was recovering and was anxious to "return" to action, and Khan responded by telling her that he was working on sending Jamil an additional 10, 000 rupees.

         Khan also sent money to Noor Muhammad, a wounded Taliban fighter living in Karachi, Pakistan. In November 2009, Khan sent Muhammad 10, 000 rupees in coordination with Abdul Qayyum, Zeb, and Muhammad's relative, whose contact information Khan obtained from his son-in-law, Anayat Ullah. Qayyum is the manager of Khan's madrassa in Swat. Khan also assisted the confidential source in traveling to Pakistan in 2010 and suggested that he give money to Muhammad. Khan promised to arrange a meeting between the confidential source and Ullah, who Khan said was connected with Taliban members. On September 23, 2010, Khan told Ullah that his friend, the confidential source, was coming to Pakistan and would give money to the Taliban. On Khan's request, Ullah provided Muhammad's address. The confidential source ultimately traveled to Pakistan and delivered 10, 000 rupees to Muhammad in accordance with Khan's instructions. While he was in Pakistan, the confidential source visited Khan's madrassa where he saw a sign that read "Death to America." Khan told the confidential source that children who studied at the madrassa were secretly trained to fight against American soldiers in Afghanistan.

         Khan also raised money to aid fighters who were incarcerated by the Pakistani government after the Pakistani Army regained control over Swat from the Taliban in 2009. Amina's son-in-law, Daoud Shah, was one of those fighters. On September 8, 2010, Khan sent $2, 990 by Western Union to Qayyum's brother in Pakistan and told the confidential source that $1, 500 of that money would go to incarcerated Taliban fighters. Some of that money went directly to Daoud.

         Apart from his efforts to support individual militants, Khan sent money to aid the Taliban in its broader mission. In August 2009, Khan promised Amina that he would send her money for "the Shariat people," a term used to refer to those engaged in jihad in support of Sharia law. On August 24, 2009, Khan wired $995 to Pakistan and left his banker a message stating that the money was "for . . . the Mujahideen [and] for the refugees." Khan told Amina and Zeb that they should not give the money to those who are "needy per se," but instead to those who have suffered while doing "Sharia's work." And when trees on Khan's property in Swat were cut and sold to enable the Taliban to widen a road, Khan instructed Rehman to give the proceeds to the Taliban.

         Khan also told the confidential source that Rehman withdraws money from Khan's bank account to buy guns for the Taliban. Khan provided Rehman with pre-signed checks to draw funds from his accounts at the National Bank of Pakistan. Rehman cashed $10, 000 checks from Khan's account on August 13, 2008, January 22, 2009, and March 25, 2009. And Rehman withdrew $5, 000 from Khan's account on November 10, 2010.

         B. Course of Proceedings.

         In June 2012, Khan's attorney, Wahid, moved under Federal Rule of Criminal Procedure 15 for leave to conduct depositions in Pakistan of Khan's codefendants, Rehman, Amina, and Zeb; unindicted coconspirator Muhammad; and Qayyum. Rule 15 permits a court to grant a motion to conduct depositions "in order to preserve testimony for trial" "because of exceptional circumstances and in the interest of justice." Fed. R. Crim. P. 15(a)(1). Such circumstances exist when (1) the witness is unavailable to testify at trial, (2) their testimony is material, and (3) countervailing factors do not "render taking the deposition[s] unjust to the nonmoving party." United States v. Ramos, 45 F.3d 1519, 1522-23 (11th Cir. 1995). Khan argued that because the key defense witnesses all resided in Pakistan and were not subject to the subpoena power of the court, his trial presented the kind of exceptional circumstances that warrant the taking of depositions in a criminal case.

         The government opposed the motion on the ground that the depositions would require formal approval from the government of Pakistan and the issuance of letters rogatory. The government also argued that countries like the United Arab Emirates could not serve as third-party locations for the depositions because those countries would not allow Amina, Rehman, Zeb, or Muhammad to testify on their soil on account of those witnesses' alleged ties to the Taliban. Defense counsel responded that Pakistan was the "only place" where the depositions could take place, and that he had already contacted the Pakistani consulate and received notice that letters rogatory were not mandatory. The government countered by pointing out that a deposition in a criminal case had never been taken in Pakistan and the Pakistani government had never received a formal request to conduct such a deposition. The government also underscored ...

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