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.