United States v. Khan Mohammed

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2011 Decided September 4, 2012
Reissued September 21, 2012

No. 09-3001

UNITED STATES OF AMERICA,
APPELLEE

v.

KHAN MOHAMMED,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00357-1)

Shardul S. Desai argued the cause for appellant. With him
on the briefs was Peter S. Spivack, appointed by the court.

Vijay Shanker, Attorney, U.S. Department of Justice, argued
the cause for appellee. With him on the brief were Lanny A.
Breuer, Assistant Attorney General, and Matthew Robert
Stiglitz, Attorney, U.S. Department of Justice. Kevin R. Gingras
and Teresa A. Wallbaum, Attorneys, U.S. Department of Justice,
and Roy W. McLeese III, Assistant U.S. Attorney, entered
appearances.
 2
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.

GRIFFITH, Circuit Judge: 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.

I

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
 3
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
 4
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
 5
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
 6
allegation at trial.1 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

1
While in custody in Afghanistan, Mohammed told his U.S.
captors that Jaweed was a convicted thief set to serve an eighteen-year
sentence in Afghanistan. The government filed a motion in limine to
exclude any such impeachment evidence, arguing that Jaweed had
denied this uncorroborated allegation. At Mohammed’s request, the
government conducted a background check that turned up no criminal
history for Jaweed in the Nangarhar province. Mohammed later agreed
to drop this line of argument.
 7
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 jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742.

II

We consider first Mohammed’s argument that his Miranda
waiver was invalid and that the district court erred by denying
his motion to suppress the statements he made during his
interrogation at the Jalalabad airfield. We need not resolve the
novel question whether Miranda applies to the overseas
custodial interrogation of a person who is not a U.S. citizen.
Even if we assume it does, any alleged error by the district court
was harmless because the government made no effort to use the
statements at trial. See, e.g., United States v. Patane, 542 U.S.
630, 641 (2004) (plurality opinion) (“Potential [Miranda]
violations occur, if at all, only upon the admission of unwarned
statements into evidence at trial.”); Oregon v. Elstad, 470 U.S.
298, 306-07 (1985) (noting that the Fifth Amendment prohibits
using compelled statements in the prosecution’s case-in-chief).

On appeal, Mohammed maintains that his statements were
used against him because Higgins was only able to identify
Mohammed’s voice on the recordings at trial from having heard
it first during the interrogation. But voice identification is not
the type of incriminating information Miranda protects:
 8
“Requiring a suspect to reveal the physical manner in which he
articulates words, like requiring him to reveal the physical
properties of the sound produced by his voice, does not, without
more, compel him to provide a ‘testimonial’ response for
purposes of the [Fifth Amendment] privilege.” Pennsylvania v.
Muniz, 496 U.S. 582, 592 (1990) (citation omitted); see also
Elstad, 470 U.S. at 317 (noting that Miranda ensures a suspect’s
unwarned answers may be excluded from the government’s
case-in-chief).

Mohammed also asserts that what he said during
interrogation was used against him indirectly. The government’s
ability to rely on his statements for impeachment purposes, so
his argument goes, made him hesitant to testify in his own
defense. But this argument has no constitutional weight.
Statements taken in violation of Miranda are admissible as
impeachment evidence unless they are, in very fact, involuntary.
See, e.g., Elstad, 470 U.S. at 307; Oregon v. Hass, 420 U.S. 714,
723 (1975) (holding that unwarned statements are admissible for
impeachment purposes unless an “officer’s conduct amount[ed]
to an abuse,” in which case admissibility is governed by “the
traditional standards for evaluating voluntariness and
trustworthiness”). And whatever one might conclude about the
merits of Mohammed’s Miranda claim, he certainly has not
shown the egregious facts necessary to establish that the
statements he made during questioning were involuntary. See,
e.g., Berghuis v. Thompkins, 130 S. Ct. 2250, 2263 (2010)
(finding no coercion in a three-hour interrogation — longer than
Mohammed’s — without evidence “that police threatened or
injured [the defendant] during the interrogation or that he was in
any way fearful”); Mincey v. Arizona, 437 U.S. 385, 398-99
(1978) (finding a confession involuntary when the defendant had
been shot and paralyzed a few hours before questioning, was in
intense pain, and gave confused and incoherent responses).
 9

We have been given no reason to disturb the district court’s
findings that the DEA agents did not threaten or intimidate
Mohammed, that he was treated well during his relatively brief
interrogation, and that he seemed eager to talk and comfortable
enough to ask questions when he needed clarification. See Tr.
Status & Mots. Hr’g 10:10-12:22. Mohammed emphasizes that
he was blindfolded and handcuffed at times and perhaps even
handcuffed during questioning. But no court has found that
waivers made while a suspect is handcuffed are invalid for that
reason alone, see, e.g., United States v. Adams, 583 F.3d 457,
467-68 (6th Cir. 2009) (upholding an implicit Miranda waiver
even though the defendant was handcuffed while he was read his
rights and during questioning); United States v. Doe, 149 F.3d
634, 639 (7th Cir. 1998) (finding a Miranda waiver voluntary
despite questioning the defendant in a remote location while
handcuffed in the back of a squad car, with some officers
wearing masks), much less that statements obtained while
handcuffed are themselves involuntary. And although an agent
lied to Mohammed that his hands tested positive for heroin,
misleading a suspect during interrogation is only one factor in
the totality of the circumstances analysis that governs our
inquiry into voluntariness. See Frazier v. Cupp, 394 U.S. 731,
739 (1969). Just as telling a defendant, falsely, that his co-
defendant had already confessed to murder is “relevant,” yet not
enough to render an “otherwise voluntary confession
inadmissible,” id., the lie here is insufficient to outweigh the rest
of the evidence showing that Mohammed’s statements were
voluntary. Within the full context of the interrogation, we would
be hard pressed to conclude that the possibility Mohammed was
handcuffed combined with the agent’s lie was enough to render
his statements involuntary.
 10
III

Mohammed next argues that the evidence at trial cannot
sustain his conviction under 21 U.S.C. § 960a. This statute
criminalizes conduct abroad that would violate domestic drug
laws if “committed within the jurisdiction of the United States”
when the actor “know[s] or intend[s] to provide, directly or
indirectly, anything of pecuniary value to any person or
organization that has engaged or engages in terrorist
activity . . . or terrorism.” Id. Mohammed does not dispute that
the evidence was sufficient to prove he engaged in a qualifying
drug offense, that he met the statutory definition of a person who
engages in terrorism, or that he knew the transaction would
result in financial gain to himself. Instead, he urges us to graft an
additional, unwritten intent requirement onto the statutory text,
which he calls a “drug-terror nexus.” Appellant’s Br. 46. Under
this theory, it is not enough that Mohammed committed a drug
offense with intent to provide pecuniary value to a terrorist or
terrorist organization; the government must also show he knew
that the money would support terrorist acts.

But Mohammed overlooks the straightforward terms of the
statute. Section 960a requires proof that the defendant intended
to support a “person or organization that has engaged or
engages in terrorist activity,” not that he intended his funds to be
used for any particular activity. 21 U.S.C. § 960a (emphasis
added). The first step in statutory interpretation considers the
statute’s plain language, see United States v. Villaneuva-Sotelo,
515 F.3d 1234, 1237 (D.C. Cir. 2008), and we decline
Mohammed’s invitation to ignore the words Congress chose.
The text is abundantly clear that Congress intended to target
drug offenses the defendant knows will support a “person or
organization” engaged in terrorism, with no additional
requirement that the defendant intend his drug trafficking to
 11
advance specific terrorist activity. In other words, Mohammed
need not have planned for his drug proceeds to fund terrorist
ends. It is sufficient that the proceeds went to a terrorist — him.

Mohammed argues that we must look past this plain
language because only his proposed intent requirement saves
§ 960a from merely duplicating the work of statutes that already
criminalize drug trafficking overseas, see 21 U.S.C. § 959, and
material support of terrorism, see 18 U.S.C. §§ 2332d, 2339A,
2339B, 2339C. But the premise that § 960a is redundant is
suspect. Congress could have reasonably determined that
international drug trafficking combined with the intent to
support a terrorist is a different crime — more blameworthy,
more dangerous, or both — than drug trafficking overseas and
material support of terrorism committed separately. Or Congress
could have decided that the ability to charge one crime instead
of two was a valuable, perhaps necessary, tool for prosecutors
that warranted creating a new crime. In any event, Congress
need not act with the sort of precision Mohammed’s argument
assumes: “Redundancies across statutes are not unusual events
in drafting,” and courts must give effect to overlapping statutes
unless there is “positive repugnancy” between them. Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253 (1992) (quoting Wood v.
United States, 41 U.S. (16 Pet.) 342, 363 (1842)) (internal
quotation marks omitted). Mohammed emphasizes that § 960a’s
penalty is greater than those for drug trafficking and material
support combined, but that alone does not establish “positive
repugnancy.” See Wood, 41 U.S. (16 Pet.) at 363 (defining
“manifest and total repugnancy” as more than “merely
affirmative, or cumulative or auxiliary” provisions, but
divergence between statutes so strong as “to lead to the
conclusion that the latter laws abrogated, and were designed to
abrogate the former”); see also United States v. Batchelder, 442
U.S. 114, 123 (1979) (“So long as overlapping criminal
 12
provisions clearly define the conduct prohibited and the
punishment authorized, the notice requirements of the Due
Process Clause are satisfied.”). At most, Mohammed highlights
some congressional overlap among statutes directed at
international drug trafficking and support of terrorism. That is
no reason for us to depart from the clear text of a statute.

But absurd results will follow unless we do, Mohammed
argues. As an example, he offers the hypothetical of a father who
sells drugs to pay a ransom to the Revolutionary Armed Forces
of Columbia for his kidnapped child. Mohammed contends that
this father, whose paternal love and not any support of terrorism
drove him to crime, risks life imprisonment under the
government’s reading of § 960a. Appellant’s Br. 46-47. But
finding § 960a absurd based on this possibility would have
broad implications for criminal law writ large. We can imagine
similar problems for any sympathetic defendant forced by his
circumstances to break the law. The criminal justice system
deals with such unusual fact patterns through prosecutorial
discretion and traditional defenses such as the duress defense,
but not by rewriting criminal statutes that are uncontroversial in
the overwhelming majority of their applications.

Similarly, Mohammed argues that, limited to its text, § 960a
could reach an individual who donates some portion of his drug
proceeds to a person or organization that engaged in terrorist
acts in the past, but no longer does so.2 Appellant’s Reply Br.
21-22. Although the statute’s use of the past and present
tense — “has engaged or engages in . . . terrorism” — increases

2
This concern does not arise in Mohammed’s case, where the
government did not introduce evidence of his past terrorist
involvement at trial, but instead relied on evidence that he was
planning a terrorist attack.
 13
its potential breadth, such a result is by no means absurd. It
neither defies “rationality” nor “common sense.” Landstar
Express America, Inc. v. Fed. Mar. Comm’n, 569 F.3d 493, 498
(D.C. Cir. 2009); Suburban Transit Corp. v. I.C.C., 784 F.2d
1129, 1130 (D.C. Cir. 1986). Wide-reaching criminal statutes
are common, and while reasonable minds may differ about the
wisdom of § 960a’s scope, “debatable policy . . . is hardly
irrational,” Landstar, 569 F.3d at 499; cf. United States v.
Ramsey, 165 F.3d 980, 990 (D.C. Cir. 1999) (rejecting a
proposed interpretation for its “obvious absurdities” of ending “a
centuries-old practice” in the criminal justice system and
exposing federal prosecutors and judges to liability for entering
into and approving plea agreements).

Moreover, even if we were persuaded that the statute is
redundant or leads to absurd results that justify a departure from
its plain meaning, Mohammed’s proposed solution is utterly
without support. The text lends no aid, as we have already
discussed, and even his resort to legislative history is unavailing.
He leans on three statements from some of the statute’s
supporters to argue that some members of Congress believed
§ 960a’s purpose is to punish those who use proceeds from drug
sales to support terrorism. Appellant’s Br. 47-48 (quoting Rep.
Hyde’s statement that Congress intended § 960a to “address and
punish those who would use . . . illegal narcotics to promote and
support terrorism,” 151 CONG. REC. H6292 (daily ed. July 21,
2005), and statements from Reps. Hyde and Souder that § 960a
would address the overlapping links between drug trafficking
and global terrorism, id.; id. at H6293). Putting to one side the
usual concerns about using legislative history, especially to
avoid the plain meaning of a statute, these statements do not
even contradict what the statute says. It is clear that Congress
intended to punish those who support terrorism directly, as the
Congressmen said, as well as indirectly, as the statute provides.
 14
IV

If we sustain his conviction, Mohammed argues that we
should remand for resentencing because the district court erred
by applying the terrorism enhancement in the Sentencing
Guidelines to calculate his sentencing range. We disagree.

The terrorism enhancement, found in Guidelines
§ 3A1.4(a), increases by twelve the base offense level for
calculating a sentencing range if the defendant was convicted of
a crime that “involved, or was intended to promote, a federal
crime of terrorism.” “Federal crime of terrorism” is defined in
18 U.S.C. § 2332b(g)(5) as an offense in violation of certain
enumerated statutes that is “calculated to influence or affect the
conduct of government by intimidation or coercion, or to
retaliate against government conduct.” Mohammed concedes
that § 960a is among the enumerated statutes, but argues that
fact alone does not make his offense a “federal crime of
terrorism.” In his view, only the mens rea requirement he has
urged us to read into the statute — an intent to finance
terrorism — would justify including § 960a as a “federal crime
of terrorism.” And as Mohammed points out again, the jury was
not asked whether he had that intent.

But 18 U.S.C. § 2332b(g)(5) offers no support for
Mohammed’s theory. The definition of “federal crime of
terrorism” contains its own intent element, with an additional
requirement only that the offense of conviction appear on the
statutory list, as § 960a does. The only question remaining, then,
is whether we can sustain the district court’s finding that
Mohammed had the requisite intent under § 2332b(g)(5). The
district court found two alternate bases to conclude that he did:
he “specifically intend[ed] to use the commission from the drug
sales to purchase a car to facilitate attacks against U.S. and
 15
foreign forces in Afghanistan,” and he “specifically intend[ed]
and [was] motivated by the drugs’ destructive powers on U.S.
civilian populations as a means of violent jihad against
Americans who have fighting forces in Afghanistan against the
Taliban.” Sentencing Tr. 17:8-15, Dec. 22, 2008. We conclude
that the first finding was sufficient to apply the terrorism
enhancement.

Mohammed maintains that the evidence does not establish
that he intended to use the drug proceeds to buy a car to aid in
the Jalalabad attack. In one meeting with Jaweed, Mohammed
stated that they would “tightly and firmly load [the missiles] in
our car and bring [them]” for use in the planned attack.
Government Trial Ex. 2C. Eleven days later, he told Jaweed he
intended to use his portion of the proceeds of the drug sales to
purchase a car. Government Trial Ex. 2D Mohammed argues
that his statements about buying a car indicate nothing more than
that he intended to buy the car for his personal use or to help in
his drug trafficking. He claims that his statements cannot be read
to support the conclusion of the district court that he was
referring to the same car that he said earlier would carry the
missiles.

Although Mohammed’s objection may show that the record
can support alternate interpretations, it is far from proof that the
district court’s reading of these conversations is clearly
erroneous. See United States v. Erazo, 628 F.3d 608, 611 (D.C.
Cir. 2011) (holding that we review factual findings underlying a
decision to apply a sentencing enhancement for clear error, and
give due deference to the district court’s application of the
Guidelines to the facts). Clear error review is exacting: to
reverse a district court’s findings of fact “we must be ‘left with
the definite and firm conviction that a mistake has been
committed.’” Am. Soc’y for the Prevention of Cruelty to Animals
 16
v. Feld Entm’t, Inc., 659 F.3d 13, 22 (D.C. Cir. 2011) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
Mohammed’s objection does not reach this level of certainty.
The district court pointed to specific statements in the record —
which Mohammed does not dispute he made — from which it
drew plausible inferences. That Mohammed may have intended
the car for personal use does not mean he could not also have
planned to use the car in the attack, and he identifies no evidence
directly contradicting the district court’s conclusion that he did.
Especially given the district court’s superior vantage point to
make credibility determinations and glean “insights not
conveyed by the record,” Gall v. United States, 552 U.S. 38, 51
(2007), we cannot conclude that its findings are clearly wrong.3

V

Finally, Mohammed claims that his trial counsel was
ineffective because he failed to adequately explore the
possibility that evidence was available that would have
significantly strengthened Mohammed’s defense. Prior to trial,
Mohammed identified for his attorney certain witnesses from his
village in Afghanistan who he claimed could bolster his
character and impugn Jaweed’s. Mohammed’s attorney admits
he did not try to locate or interview any of them. See, e.g., Tr.
Status Hr’g 14:1-7, Feb. 25, 2008. Mohammed now claims that
these witnesses could have shown that Jaweed had a reputation
as a liar and was biased against him. Failing to introduce their
testimony prejudiced his defense, Mohammed argues, because

3
In light of this conclusion, we need not consider the district
court’s second basis for applying the terrorism enhancement, nor the
government’s alternate argument that any error would have been
harmless because the district court stated it would have imposed the
same sentence without the enhancement.
 17
Jaweed was the government’s star witness, and his credibility
was central to the prosecution.

When advancing an ineffective assistance argument on direct
appeal, an appellant must present “factual allegations that, if
true, would establish a violation of his [S]ixth [A]mendment
right to counsel.” United States v. Poston, 902 F.2d 90, 99 n.9
(D.C. Cir. 1990). These allegations must satisfy both prongs of
Strickland v. Washington, 466 U.S. 668 (1984): deficient
representation and prejudice. Id. at 687. Presented with a
colorable claim, we remand for an evidentiary hearing unless the
“record alone conclusively shows that the defendant either is or
is not entitled to relief.” United States v. Burroughs, 613 F.3d
233, 238 (D.C. Cir. 2010) (quoting United States v. Rashad, 331
F.3d 908, 910 (D.C. Cir. 2003)) (internal quotation marks
omitted). We do not “reflexively remand,” United States v.
Harris, 491 F.3d 440, 443 (D.C. Cir. 2007), but neither will we
hesitate to remand when a trial record is insufficient to assess the
full circumstances and rationales informing the strategic
decisions of trial counsel, see Massaro v. United States, 538
U.S. 500, 505 (2003).

To raise a colorable claim that his trial counsel was deficient,
Mohammed must allege errors “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland, 466 U.S. at 687. Mohammed’s
attorney owed him a “duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary,” id. at 691, so an allegation that
counsel failed to contact potentially vital defense witnesses at
Mohammed’s request, without good cause, could rise to this
level. The key to Mohammed’s claim is whether his attorney’s
less-than-thorough pre-trial investigation was supported by
“reasonable professional judgments.” Id.; see also Wiggins v.
 18
Smith, 539 U.S. 510, 523 (2003) (noting that courts use an
objective standard to assess performance under prevailing
professional standards).

Pointing to three hearings that took place on May 2, 2008,
the government maintains there is enough in the district court
record for us to determine whether it was reasonable for
Mohammed’s counsel not to search for these potential witnesses
in Afghanistan. We disagree. At the ex parte hearing called to
consider Mohammed’s request for new counsel, the district court
asked Mohammed directly what his witnesses would say at trial.
He answered that they would testify that he was not part of the
Taliban and that Jaweed was a thief. Tr. Ex Parte Sealed
Discussions 23:12-24:3. According to the government,
testimony on these points would have been irrelevant to
Mohammed’s defense in light of both the government’s
stipulation, made at the final hearing of the day, that it would not
introduce evidence of Mohammed’s Taliban involvement, as
well as Mohammed’s agreement, made in the face of the motion
in limine, that he would not to try to impeach Jaweed on this
account. Cf. United States v. Moore, 104 F.3d 377, 391 (D.C.
Cir. 1997) (“Even had [counsel] located these witnesses, the
testimony they allegedly would have provided was tangential at
best.”).

But the government misses the thrust of Mohammed’s
argument. Although Mohammed emphasizes his attorney’s
failure to contact potential witnesses, as he did before the district
court, on appeal he argues that counsel should have made some
effort to learn if the witnesses could undermine Jaweed’s
credibility in general, by testifying, for example, that he had a
reputation for dishonesty or that he harbored a grudge against
Mohammed. The colloquies at the May 2 hearings did not
explore that possibility or consider other facts that might be
 19
developed by the district court on remand to give fuller context
to the decisions counsel made, such as what Mohammed told his
attorney while preparing his defense or what his attorney may
have uncovered himself during trial preparation.

The government argues that Mohammed’s failure to press
before the district court this point about Jaweed’s credibility in
general shows that these witnesses would not have been able to
support his allegation. We think the government infers too much
from a colloquy between Mohammed and the court at a hastily
convened ex parte hearing on the eve of trial. The question of
ineffective assistance looks to the propriety of his attorney’s
decision not to follow up on Mohammed’s suggestions to track
down possibly helpful witnesses in Afghanistan. If anything, the
fact that his attorney noted for the court the possibility that the
witnesses could have undermined Jaweed’s testimony more
generally shows that he was aware of their potential value to
Mohammed’s defense. The government urges us to disregard
this statement as mere speculation, but whether counsel did or
should have had reason to investigate this hunch before trial is
precisely the type of question an evidentiary hearing is designed
to explore. The record before us may well be sufficient to judge
the reasonableness of not pursuing witnesses who could refute
evidence that Mohammed was part of the Taliban or that Jaweed
was a thief, but it cannot tell us whether Mohammed’s attorney
was justified in not finding out if they had anything else to offer
his client’s defense. We do not know “all the circumstances”
animating counsel’s strategic decisions from which we could
determine whether his failure to pursue this potential line of
defense was a reasonable, calculated choice or a mark of
deficient performance. See Strickland, 466 U.S. at 691.

Even so, remand would not be needed if the record showed
no prejudice to Mohammed from this alleged error. At this
 20
stage, Mohammed need not prove actual prejudice, but merely
show that the record does not “conclusively establish[] that he
could not do so if given the chance.” Rashad, 331 F.3d at 912.
The government argues there is no reasonable likelihood that
testimony undercutting Jaweed’s credibility would have altered
the verdict because the vast majority of evidence against
Mohammed consisted of his own words and actions caught on
tape, not Jaweed’s testimony. Mohammed responds that the
recordings do not speak for themselves. The government put
them into evidence through Jaweed, who explained the
recordings and provided context for them over two days of
testimony.

Mohammed has the better of this argument. The prosecutor
frequently stopped the recordings at trial and asked Jaweed to
explain them to the jury. For example, Jaweed testified that
when Mohammed discussed blowing up mines around
“Dagosar” and “the Red Castle” he was referring to government
cars, Trial Tr. 46:9-20, May 9, 2008, and that plans to “fire
missiles toward the airport,” referenced the Jalalabad airfield, id.
at 48:25-49:3. Jaweed’s testimony arguably shaped how the jury
understood Mohammed’s words. Without the additional
information Jaweed provided that Mohammed was discussing
government targets, a juror conceivably could conclude that
Mohammed was violent, but not a terrorist as required to convict
under § 960a. Errors that have “a pervasive effect on the
inferences to be drawn from the evidence” have a greater
probability of influencing the verdict, Strickland, 466 U.S. at
695-96, and Mohammed has raised a colorable claim that his
attorney’s failure to introduce evidence challenging Jaweed’s
credibility was such an error. The district court is best positioned
to answer in the first instance whether this colorable claim rises
to the level of actual prejudice. See Massaro, 538 U.S. at 506
(explaining that the district court has an “advantageous
 21
perspective” to assess prejudice within the full context of a trial,
especially when the same judge from trial presides).

Because Mohammed has raised colorable claims under both
Strickland prongs and the trial record does not conclusively
show whether he is entitled to relief, we remand his claims to
the district court to test his allegations further.4

VI

For the foregoing reasons, we affirm Mohammed’s
judgment of conviction and sentence in all respects, but remand
for an evidentiary hearing on his ineffective assistance claim.

So ordered.

4
We agree with our concurring colleague that precedent and
sound policy mark the district court as the best forum to litigate a claim
of ineffective assistance, and we express no view on the merits of
Mohammed’s claim. Our discussion seeks only to explain the reasons
for our conclusion that the trial record is insufficient to resolve his
claim on direct appeal.
In most cases, the need for an evidentiary hearing is readily
apparent because the trial record contains little of the information
necessary to assess trial counsel’s performance. In such cases we may
well “owe no special explanation when we remand.” Concurring Op. at
2. But this is not the typical case, because the performance of trial
counsel was an issue before the district court. In such an unusual
circumstance, we see nothing amiss with explaining why the trial
record is insufficient to weigh the merits of a claim of ineffective
assistance on direct appeal. In order to respect our charge to avoid a
“reflexive[] remand,” we must “interrogate the trial record according to
Strickland’s familiar two prongs.” Harris, 491 F.3d at 443.
 KAVANAUGH, Circuit Judge, concurring in part and
concurring in the judgment: I concur in the judgment and in
all but Part V of the Court’s excellent opinion. I write
separately with respect to Part V only to express my
respectful view that this Court should not ordinarily delve into
the merits of an ineffective-assistance claim before the district
court has done so. The Supreme Court has stated that
“ineffective-assistance claims ordinarily will be litigated in
the first instance in the district court, the forum best suited to
developing the facts necessary to determining the adequacy of
representation during an entire trial.” Massaro v. United
States, 538 U.S. 500, 505 (2003). The district court “may
take testimony from witnesses for the defendant and the
prosecution and from the counsel alleged to have rendered the
deficient performance.” Id.

For that reason, ineffective-assistance claims arising out
of federal criminal cases are most appropriately brought in
§ 2255 collateral proceedings. (The Supreme Court has said
that procedural default rules do not preclude a defendant from
bringing an ineffective-assistance claim for the first time in a
§ 2255 proceeding. See id. at 504.) To be sure, this Court has
also permitted ineffective-assistance claims to be raised on
direct appeal. 1 But even so, when an ineffective-assistance
argument is asserted on direct appeal, our usual practice is to
remand the claim to the district court without substantial
analysis by this Court of the merits of the claim. See, e.g.,
United States v. Laureys, 653 F.3d 27, 34 (D.C. Cir. 2011).
1
Our circuit is alone in permitting this procedure. At some
point, we perhaps should conform our practice to that of all of the
other circuits and require most ineffective-assistance claims to be
raised in § 2255 proceedings, not on direct appeal. Cf. Martinez v.
Ryan, 132 S. Ct. 1309, 1318 (2012) (“there are sound reasons for
deferring consideration of ineffective-assistance-of-trial-counsel
claims until the collateral-review stage”). Regardless of whether
we take that logical step, however, we should still give the district
court the first opportunity to consider such claims.
 2
Whether it be in a § 2255 proceeding or on direct appeal, the
key procedural principle remains the same: The district court
should take the first crack at the merits of ineffective-
assistance claims.

Two principles of sound appellate decisionmaking
support that district-court-first practice. First, as the Supreme
Court has explained, the district court is the forum “best
suited to developing the facts.” Massaro, 538 U.S. at 505.
Otherwise, “appellate counsel and the court must proceed on a
trial record not developed precisely for the object of litigating
or preserving the claim and thus often incomplete or
inadequate for this purpose.” Id. at 504-05. Second, by
remanding to the district court as a matter of course when an
ineffective-assistance claim is raised on direct appeal, we
avoid wasting scarce resources as appellate counsel (and
judges) fruitlessly and pointlessly squabble over ineffective-
assistance claims based on an incomplete record. We have
acknowledged that the court of appeals can resolve an
ineffective-assistance issue in the first instance when the
record “conclusively” shows that the defendant either is or is
not entitled to relief. United States v. Rashad, 331 F.3d 908,
911 (D.C. Cir. 2003). But given the fact-bound nature of
ineffective-assistance claims, that exception arises only rarely.
If there is any doubt or difficulty, if it is not obvious from the
face of the record whether relief is warranted, the appropriate
course is simply to remand.

Applying those principles to this case, I do not see the
need for the Court’s detailed analysis of Mohammed’s
ineffective-assistance claim. We owe no special explanation
when we remand an ineffective-assistance claim. We owe a
special explanation only in the rare situations when we
resolve the ineffective-assistance claim here at the appellate
level. In this case, I would remand the ineffective-assistance
 3
claim to the district court without the lengthy evaluation of
the claim’s merits.