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.
WILLIAM PRYOR, CIRCUIT JUDGE.
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
...