United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2009 Decided July 27, 2010
No. 07-3138
UNITED STATES OF AMERICA,
APPELLEE
v.
KHALED MOHAMED SHABBAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00290-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Emily C. Scruggs, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney at the time the brief was filed, and Roy W. McLeese III,
Assistant U.S. Attorney.
Before: GARLAND and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: On June 21, 2007, a jury
convicted Khaled Shabban of international parental kidnaping.
Shabban challenges the sufficiency of the evidence supporting
his conviction, and he seeks a remand for an evidentiary hearing
on his claim that he was denied effective assistance of counsel.
We reject Shabban’s challenge to his conviction because we find
the evidence sufficient to persuade a reasonable juror of his guilt
beyond a reasonable doubt. Because the trial record does not
conclusively show whether Shabban is entitled to relief on his
ineffective assistance claim, we follow our general practice and
remand for an evidentiary hearing.
I
Viewed in the light most favorable to the government, see
United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005), the
evidence is as follows. Shabban, an Egyptian national, met
Araceli Hernandez, a Mexican national, in Washington, D.C.
They had a romantic relationship, during which Hernandez
became pregnant. Their child, A.K.S., was born in August 2001.
Shortly thereafter, Shabban and Hernandez, who lived in
separate residences, entered into a consensual custody order in
the Superior Court of the District of Columbia. Under the order,
Hernandez had primary physical custody, Shabban had
unsupervised visitation rights, and both agreed that “the child
shall not be removed from the country without the express[]
written consent of both parties.” Trial Tr. 203 (June 19, 2007).
Approximately three years later, Shabban made
preparations to take his son to Egypt without Hernandez’s
permission. He sold his coffee business for $35,000 without
telling Hernandez; had his roommate, Hossam Barakat, pay him
the security deposit for their apartment; and asked Barakat about
3
placing Barakat’s name on the lease. Shabban also told Barakat
that he planned to take A.K.S. to Egypt, that he had purchased
airline tickets to do so, and that Hernandez “d[id]n’t care if he
[Shabban] took [A.K.S.] to Egypt.” Id. at 313.
On the morning of November 21, 2004, as was her regular
practice, Hernandez dropped A.K.S. off with Shabban on her
way to work. Shabban then told Barakat that, with Hernandez’s
consent, he had decided to take A.K.S. to Canada rather than
Egypt. Later that morning, Shabban called Hernandez to ask if
he could take A.K.S. to an amusement park, and Hernandez
agreed. When Hernandez tried to call Shabban that afternoon,
he did not answer. She went to Shabban’s apartment, but to no
avail. Afterward, she called Shabban every thirty minutes.
Although he would usually answer such calls, this time he did
not. Around 6 p.m., Shabban called Barakat, told him he was
bringing a girlfriend home, and asked him to stay away from the
apartment until 10 p.m., which Barakat did.
That evening, without warning to or permission from
Hernandez, Shabban boarded a flight and took A.K.S. to Cairo.
Although Shabban’s name was listed on A.K.S.’s birth
certificate and the custody order as “Khaled Mohamad
Shabban,” “Khaled Shabban,” or “K. Shabban,” he traveled to
Cairo on a passport that listed his name as “Mohamed Rashad
Mohamed Mahmoud Shabban.” The flight manifest, ticket
receipt, and trip itinerary all listed Shabban’s name as “Khaled
Rashad.”
A week after Shabban disappeared, he called Hernandez
and told her that he and A.K.S. were in Egypt. Hernandez
asked: “[W]hy [did] you d[o] that[? Y]ou didn’t tell me
anything.” Trial Tr. 346 (June 19, 2007). She then contacted
the authorities. Over the next 22 months, Shabban and
Hernandez had numerous telephone conversations, many of
4
which Hernandez recorded with the help of the FBI. In early
conversations, Shabban asked Hernandez to come to Egypt,
which she said she could not do because it meant abandoning
her pending application for a green card. He also mentioned that
he was thinking about bringing A.K.S. back, but he did not make
any arrangements. During their conversations, Shabban referred
to their son’s difficulty in learning to communicate, and told
Hernandez he had taken him to Egypt so that he could learn a
single language, Arabic. He expressed remorse for taking
A.K.S. without permission, telling Hernandez: “I don’t know
how I’m going to look at you.” Tel. Conversation Tr. 9 (Sept.
22, 2006). During another conversation, he told her to “[b]e
good[, d]on’t be bad,” which she believed was a request not to
go to the police or the court. Tel. Conversation Tr. 16 (Nov. 7,
2005).
Upon the FBI’s advice, Hernandez began asking Shabban
to return A.K.S. to the United States in time for the next school
year. In mid-2006, Hernandez and Shabban agreed that a family
friend would fly to Cairo, meet A.K.S. and Shabban, and bring
A.K.S. to the United States on a return flight. Because Shabban
was late to the meeting with the family friend, they failed to
connect, and she returned to the United States alone. Later,
Shabban made preliminary arrangements for an airline employee
to accompany A.K.S. to the United States, but that effort was
also unsuccessful.
Shabban next made arrangements to bring A.K.S. back to
the United States himself. Before leaving Egypt, he told
Hernandez, “[d]on’t break my life,” Tel. Conversation Tr. 2
(Sept. 22, 2006), which she understood to mean that she should
not tell the police of his plans. On September 25, 2006, now
traveling on a visa that listed his name as “Khaled Mohamed
Rashad Rashad Mahmoud,” Shabban arrived in New York and
was arrested at the airport. After his arrest, he told the FBI that
5
he took A.K.S. to Egypt because A.K.S. was having “difficulty
with learning how to converse or learning how to
communicate.” Trial Tr. 262 (June 19, 2007). He admitted that,
“if he had asked Ms. Hernandez for permission, she would have
said no.” Id. at 263.
On September 28, 2006, a grand jury charged Shabban with
international parental kidnaping, in violation of 18 U.S.C.
§ 1204. Trial commenced on June 18, 2007. After the jury
returned a guilty verdict, the district court sentenced Shabban to
36 months’ imprisonment. Shabban timely filed the instant
appeal.
II
Shabban’s first argument is that the evidence was
insufficient to support his conviction. Our review of such a
claim is limited: We must accept the jury’s guilty verdict if we
conclude that “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). “In making
[that] determination, the prosecution’s evidence is to be viewed
in the light most favorable to the government, drawing no
distinction between direct and circumstantial evidence, and
giving full play to the right of the jury to determine credibility,
weigh the evidence and draw justifiable inferences of fact.”
Dykes, 406 F.3d at 721 (internal quotation marks omitted).
The International Parental Kidnaping Crime Act provides:
Whoever removes a child from the United States, or
. . . retains a child (who has been in the United States)
outside the United States with intent to obstruct the
lawful exercise of parental rights shall be fined under
this title or imprisoned not more than 3 years, or both.
6
18 U.S.C. § 1204(a). Shabban’s contention is that the evidence
was insufficient to prove that he intended to obstruct the lawful
exercise of Hernandez’s parental rights. Instead, he maintains,
the evidence showed that he was concerned that his son was
having difficulty learning to speak because he was exposed to
three languages: his father’s Arabic, his mother’s Spanish, and
his school’s English. Shabban contends that his intention was
to place the child in an environment in which he could improve
his speech by hearing only one language.
As Shabban concedes, evidence that a defendant had
multiple intentions does not mean there was insufficient
evidence of the requisite statutory intent. See Oral Arg.
Recording at 22:25-22:48.1 And in this case, the evidence -- as
set forth in Part I above -- was sufficient for a reasonable juror
to find, beyond a reasonable doubt, that Shabban removed or
retained A.K.S. with intent to obstruct the lawful exercise of
Hernandez’s parental rights.2
1
See also United States v. Julian, 427 F.3d 471, 485 (7th Cir.
2005) (holding that under the Mann Act, which bars interstate or
foreign transportation of an individual “with intent that such
individual engage in prostitution,” 18 U.S.C. § 2421, the government
need not prove that the defendant acted “with the sole or principal
intent” that the individual engage in prostitution, as long as that intent
was a significant one); United States v. Gooding, 473 F.2d 425, 428
(5th Cir. 1973) (holding that under the Travel Act, which prohibits
interstate travel “with intent to” commit specified unlawful acts, 18
U.S.C. § 1952(a), the defendant may have the requisite intent even if
his “travel is motivated by two or more purposes, some of which lie
outside the ambit of the Travel Act”).
2
The district court instructed the jury that, to find Shabban guilty,
“you must determine beyond a reasonable doubt that he intended to
obstruct the lawful exercise of parental rights.” The court further
instructed that:
7
Shabban and Hernandez were subject to a custody order that
clearly established Hernandez’s parental rights.3 Under that
order, she had “primary physical custody” of the child, and
A.K.S. could “not be removed from the country without the
express[] written consent of both parties.” Trial Tr. 203 (June
19, 2007). Beginning in 2004, Shabban made preparations to
take A.K.S. to Egypt in a fashion that could reasonably be
described as deceptive, and from which the jury could have
inferred an intent to obstruct Hernandez’s parental rights.
Without telling Hernandez, he sold his business and made
arrangements to transfer his apartment. And he evidenced
consciousness of guilt by falsely telling his roommate that
Hernandez did not care if he took A.K.S. to Egypt.
On the morning of his departure for Egypt, Shabban again
lied to his roommate, telling him that he had decided to take
A.K.S. to Canada and that Hernandez had consented to the trip.
Later that morning, he lied to Hernandez, asking her permission
to take A.K.S. to an amusement park. Thereafter, he avoided
her calls, told his roommate to stay away from the apartment,
[Y]ou may infer the defendant's intent from the surrounding
circumstances. You may consider any statement made or
acts done or omitted by the defendant [a]nd all other facts
and circumstances received in evidence which indicate the
defendant's intent. You may infer, but are not required to,
that a person intended the natural and probabl[e]
consequences of acts knowingly done or omitted.
Trial Tr. 463 (June 20, 2007). Shabban did not object to this
instruction in the district court and does not do so here.
3
The statute defines “parental rights” as “the right to physical
custody of the child -- (A) whether joint or sole (and includes visiting
rights); and (B) whether arising by operation of law, court order, or
legally binding agreement of the parties.” 18 U.S.C. § 1204(b)(2).
8
and boarded a flight to Egypt. In making the trip, he used a
passport and ticket with variations of his name that were
different from those he had used previously -- suggesting an
intent to prevent Hernandez from learning of or stopping his
departure. Hernandez testified that Shabban had never sought
or received her permission to take A.K.S. out of the country, nor
given her any warning that he intended to do so.
During the 22 months Shabban spent in Egypt, he provided
further evidence from which the jury could have inferred that he
removed A.K.S. from the United States, or retained him in
Egypt, with the intent to prevent Hernandez from exercising her
right to physical custody of the child. During one telephone
conversation, he told Hernandez that “I don’t know how I’m
going to look at you,” Tel. Conversation Tr. 9 (Sept. 22, 2006),
evidence that he knew he had taken A.K.S. without her consent.
The two abortive efforts he made to return A.K.S. to the United
States in mid-2006 could also be interpreted as evidence of
intent to unlawfully retain the child in Egypt.
When Shabban finally did arrange to bring A.K.S. back to
the United States, he made further remarks that a jury could
have interpreted as consciousness of guilt, traveled on a passport
with yet another variation of his name, and admitted to the FBI
that he knew Hernandez would not have agreed to let him take
the child to Egypt.
This evidence, taken together (or even in significant part),
was sufficient to sustain the jury’s verdict. Accordingly, we
reject Shabban’s challenge to his conviction.
III
Shabban’s second contention is that his trial counsel was
constitutionally ineffective for failing to conduct an adequate
9
investigation and failing to call witnesses who would have
supported his defense. This is an argument he raises, with new
counsel, for the first time on appeal. Pursuant to this circuit’s
decision in United States v. Rashad, 331 F.3d 908 (D.C. Cir.
2003), Shabban seeks a remand to the district court for an
evidentiary hearing on his claim.
In order to succeed on a Sixth Amendment claim of
ineffective assistance of counsel, a defendant must show two
things: (1) “that counsel’s performance was deficient,” and (2)
“that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). In Rashad,
we explained that, “[d]ue to the fact-intensive nature of the
Strickland inquiry and the likelihood, when a defendant asserts
his sixth amendment claim for the first time on direct appeal,
that the relevant facts will not be part of the trial record, . . . this
court’s general practice is to remand the claim for an evidentiary
hearing unless the trial record alone conclusively shows that the
defendant either is or is not entitled to relief.” 331 F.3d at
909-10 (internal quotation marks omitted).
Shabban asserts that he “gave his attorney information that,
if pursued, would have undermined the allegation that he acted
with the specific intent to obstruct Ms. Hernandez’s parental
rights.” Appellant’s Br. 14. Among other things, Shabban
avers, he told his attorney that: (1) his name appears differently
in different documents because of the difficulties in westernizing
Arabic names, not because he was trying to hide anything, a
misunderstanding that he suggests an expert witness could have
dispelled; (2) he enrolled A.K.S. in speech therapy in Egypt,
demonstrating that he traveled there because of his son’s
communication problem; (3) he registered A.K.S. at the U.S.
embassy as an American citizen abroad, showing that he was not
trying to evade U.S. authorities; (4) the family friend who
traveled to Egypt to escort A.K.S. home would have testified
10
that it was not Shabban’s fault that they failed to connect for the
transfer, showing that Shabban did not intend to keep A.K.S.
abroad; (5) a subsequent attempt to return A.K.S. to the United
States was thwarted through no fault of Shabban’s when a
family member stole A.K.S.’s passport, for which Shabban
brought criminal charges, again showing the absence of intent
to keep A.K.S. in Egypt; and (6) he returned to the U.S. despite
the fact that another friend told him the police were asking about
A.K.S.’s whereabouts.
Given Shabban’s allegation that his trial counsel “refused
to investigate this specific information, or to call witnesses on
his behalf,” Appellant’s Br. 14, we can hardly say that “the trial
record alone conclusively shows” that he has failed to satisfy
Strickland’s first prong, deficient performance. As to the second
prong, prejudice, the government argues that most of the
information Shabban recites relates to his conduct after he
departed the United States. That is true, but it is also true of
much of the evidence the government itself offered to prove
Shabban’s intent. Mindful of the fact that Shabban’s trial
counsel presented no witnesses at all, we cannot say that “the
trial record alone conclusively shows that the defendant either
is or is not entitled to relief” under the Sixth Amendment.
Rashad, 331 F.3d at 910 (internal quotation marks omitted).
Accordingly, we remand this case to the district court for an
evidentiary hearing. See id. at 909-10.
IV
For the foregoing reasons, we reject Shabban’s challenge to
his conviction but remand the case to the district court for an
evidentiary hearing to determine whether he was denied the
effective assistance of counsel.
So ordered.