IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

UNITED STATES OF AMERICA 

v. 

MASOUD AHMAD KHAN, 

Defendant. 

1:03cr296 (LMB) 

1:08cv533 (LMB) 

MEMORANDUM OPINION 

Before the Court is Masoud Ahmad Khan's ("Khan") Amended 

Motion Under 28 U.S.C. § 2255 ["Am. § 2255 Mot."] [Dkt. No. 694], 

in which he argues that his conviction and sentence should be 

vacated due to multiple errors in his trial and on appeal. 

Specifically, he alleges that: 1} the government failed to 

~ provide information that the telephones of his co-conspirators 

were monitored; 2} he received ineffective assistance of trial 

and appellate counsel; 3} the government may have violated its 

Brady obligations; 4} the government constructively amended the 

indictment; 5} Count 5 of the indictment failed to allege a crime 

and the indictment failed to allege any actions that would 

constitute an overt act for the crime of providing material 

support to a terrorist organization; 6) two criminal statutes 

under which he was convicted are unconstitutionally vague and 

overbroad; 7) certain findings of guilt and innocence were 

inconsistent; 8} certain counts should not have served as 

predicate offenses for the firearm counts; 9) the Court should 

~ resentence Khan on certain firearm charges that were duplicative; 
~ and 10} the cooperation agreements and Fed. R. Crim. P. 35(b}'s 

provision for reducing sentences for defendants who cooperate 

with the government violate Khan's Due Process rights. The 

motion has been fully briefed by the parties. For the reasons 

stated below, Khan's motion will be dismissed as to all issues, 

except for one, which the government concedes has merit. 1 

I.Background 

On June 25, 2003, a grand jury indicted Khan and ten others, 

for offenses arising out of their preparation for violent jihad 

against the United States and an ally. Specifically, the 

indictment focused on the co-conspirators' activities going back 

to 1998 when some of them began preparing for possible jihad 

~ against the enemies of Islam. Preparations for jihad included 

participating in para-military exercises in Northern Virginia, 

purchasing numerous assault-type weapons including AK 47's, and 

watching radical Islamist films. Co-conspirators traveled to 

Pakistan where several of them, including Khan, received combat 

training with Lashkar-e-Taiba ("LET"), a radical Islamist group, 

which in December 2001 was designated a terrorist organization 

1 Khan argues that the conspiracy conviction under Count 1 

should be vacated because it is a lesser included offense of the 

Count 2 conspiracy. Am. § 2255 Mot. at 61. The government 

agrees that the Count 1 conviction should be vacated because it 

is subsumed by Count 2. Answer at 69-70. The Court finds that 

the parties are correct. Accordingly, relief will be granted on 

this one claim and the conviction on Count 1 will be vacated by 

the Order issued with this Opinion, and an Amended Judgment will 

be entered. 

2 
~ pursuant to Section 219 of the Immigration and Nationality Act. 

In August and September of 2003, four of the co-conspirators, 

Yong Kwon ("Kwon"), Mohammed Aatique ("Aatique"), Donald Surratt 

("Surratt"), and Mahmoud Hasan ("Hasan"), plead guilty to various 

counts in the indictment under plea agreements, in which they 

promised to cooperate with the United States. On September 25, 

2003, a grand jury returned a 32-count superseding indictment 

charging Khan and the remaining co-conspirators with various 

conspiracy and substantive offenses. In January of 2004, two 

additional co-conspirators, Randall Todd Royer ("Royer") and 

Ibrahim AI-Hamdi ("AI-Hamdi"), plead guilty under agreements with 

the government. Khan, along with the remaining defendants, 

r' Hammad Abdur-Raheem, Seifullah Chapman ("Chapman"), Sabri 

Benkhala, and Caliph Basha Ibn Abdur-Raheem filed motions to 

sever or, in the alternative, for a waiver of a jury trial. 2 The 

motions to sever were denied, and the case was tried to the 

bench. Khan was represented throughout the pretrial and trial 

stages by retained counsel, Bernard Grimm and Jennifer Wicks, and 

on appeal by Jonathan Shapiro. On March 4, 2004, after a nineday bench trial, the Court issued its findings of fact and 

conclusions of law,3 see United States v. Khan, 309 F. Supp. 2d 

2 The bench trial of Sabri Benkhala was severed and he was 

later acquitted of all charges. 

3 The Court adopts the Memorandum Opinion's findings of fact 

and conclusions of law for the purposes of this § 2255 Motion. 

~ The Court also adopts the factual background from its December 

3 
789 (E.D. Va. 2004) ("Khan I"), aff'd in part, remanded for 

sentencing, 461 F.3d 477 (4th Cir. 2006), in which Khan was found 

guilty of Count 1 (conspiracy in violation of 18 U.S.C. § 371), 

Count 2 (conspiracy to levy war against the United States in 

violation of 18 U.S.C. § 2384), Count 4 (conspiracy to contribute 

services to the Taliban in violation of 50 U.S.C. § 1705), Count 

5 (conspiracy to contribute material support to Lashkar-e-Taiba 

in violation of 18 U.S.C. § 2339A), Count 11 (conspiracy to 

possess and use firearms in connection with a crime of violence 

in violation of 18 U.S.C. § 924(0)), and Counts 24, 25, and 27 

(use and possession of firearms in connection with a crime of 

violence in violation of 18 U.S.C. § 924{c). On June 15, 2004, 

~ Khan was sentenced to life imprisonment. He appealed both his 

convictions and sentence. The convictions were affirmed, but the 

case was remanded for resentencing to comply with United States 

v. Booker, 543 U.S. 220 (2005). On July 29, 2005, Khan was 

resentenced to life imprisonment. 4 The Fourth Circuit affirmed 

Khan's convictions and sentence in United States v. Khan, 461 

F.3d 477 (2006) ("Khan II"). The Supreme Court denied Khan's 

23, 2009 Memorandum Opinion for Chapman's § 2255 Motion. 

4 The sentence consisted of 60 months imprisonment on Count 

1; 120 months imprisonment on each of Counts 2, 4, 5, and 11 to 

be served concurrently with each other and Count 1; 120 months 

imprisonment on Count 24, to be served consecutively to Counts 1, 

2, 4, 5 and 11; 300 months imprisonment as to Count 25, to be 

served consecutively to Count 24; and life imprisonment as to 

Count 27, to be served consecutively to Count 25, among other 

penalties. 

4 
~ petition for a writ of certiorari on May 21, 2007. Khan v. 

United States, 550 U.S. 956 (2007) (No. 06-1116). Khan timely 

filed his pro se § 2255 Motion on May 23, 2008. On November 3, 

2008, Khan's new counsel filed an amended § 2255 Motion. 

Although the new issues raised in the amended § 2255 motion could 

be stricken as time-barred, the Court has addressed them on the 

merits. 

II. Standard of Review 

Under 28 U.S.C. § 2255, a federal prisoner who collaterally 

attacks a conviction or sentence prevails only if he can show 

that the conviction or sentence was imposed in violation of the 

United States Constitution or laws, that the court lacked 

~ jurisdiction to impose the sentence, that the sentence was in 

excess of the maximum authorized by law, or that the sentence or 

conviction is otherwise subject to collateral attack. Relief 

under § 2255 is designed to correct for fundamental 

constitutional, jurisdictional, or other errors, and is therefore 

reserved for situations in which failing to grant relief would 

otherwise "inherently result [] in a complete miscarriage of 

justice. United States v. Addonizio, 442 U.S. 178 (1979). 

However, a motion pursuant to § 2255 "may not do service for an 

appeal." United States v. Frady, 456 U.S. 152, 165 (1982). 

Claims that were not raised on appeal are deemed waived and 

procedurally defaulted unless the movant can show cause for not 

5 
raising the issue on appeal and establish actual prejudice. Id. 

at 165-67. An exception to the procedural default applies when a 

movant establishes constitutionally ineffective assistance of 

appellate counsel. See United States v. DeFusco, 949 F.2d 114 

(4th Cir. 1991). 

III. Discussion 

A. Failure to provide information about Terrorist Surveillance 

Program 

Without any evidence that his co-conspirators were ever 

subject to monitoring under the National Security Agency's 

Terrorist Surveillance Program, Khan argues that the government 

failed to inform him that his co-conspirators' telephones were 

monitored, in violation of its obligations under Brady v. 

Maryland, 373 U.S. 83 (1963). Am. § 2255 Mot. at 8-9. Khan 

supports this claim by theorizing that intercepted conversations 

might have exculpated him; however he also concedes that he does 

not know whether he or any co-conspirator was actually the 

subject of an interception and he does not identify the content 

of any phone calls which would have been exculpatory. Khan 

requests full discovery, either in camera or in open court, to 

determine whether he was denied exculpatory information. 

"Unsupported, conclusory allegations do not entitle a habeas 

petitioner to an evidentiary hearing." United States v. Golden, 

2002 U.S. App. LEXIS 12125 (4th Cir. 2002) (citing Nickerson v. 

Lee, 971 F.2d 1125, 1136 (4th Cir. 1992)). The government 

6 
r' correctly argues that Khan offers only "mere speculation" that 

such exculpatory information exists. Government's Answer to 

Def.'s Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or 

Correct Sentence ("Answer") at 5-6. Khan does not allege any 

facts to support his speculative claim that the government 

intercepted any of his co-conspirators' communications and fails 

to provide any basis upon which to conclude that those 

communications would have been exculpatory. The purely 

speculative nature of this claim does not entitle Kahn to an 

evidentiary hearing or other relief. Accordingly, this claim 

will be dismissed. 

B. Ineffective assistance of trial counsel 

Khan raises numerous claims of ineffective assistance of 

trial counsel, none of which has merit. To prevail on an 

ineffective assistance claim, a movant must satisfy the two-prong 

test established in Strickland v. Washington, 466 U.S. 668 

(1984). First, he must show that counsel's performance was 

"deficient." Id. at 687. Deficient performance is present when 

"the identified acts or omissions [of counsel] were outside the 

wide range of professionally competent assistance;" however, 

counsel is "strongly presumed to have rendered adequate 

assistance." Id. at 690. Second, he must show that "there is a 

reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." 

7 
Id. at 694. The movant bears the burden of proving both prongs, 

and if the movant fails to demonstrate prejudice, the Court need 

not address the issue of counsel's performance. Fields v. 

Attorney Gen. of State of Md., 956 F.2d 1290, 1297-99 (4th Cir. 

1992) . 

1. Waiver of jury trial 

Khan first argues that his trial counsel's performance was 

deficient when he advised Khan to waive a trial by jury. In 

pretrial motions, Khan joined co-defendant Chapman's motion to 

sever. In the alternative, the defendants asked to waive the 

jury, and to be tried by the Court. In addressing the jury 

waiver, Chapman's memorandum supporting the motion stated that 

"[a] bench trial would likely result in a much shorter trial and, 

would afford the accused with the opportunity to receive a fair 

trial." After the motion to sever was denied, the government 

consented to the waiver. Because the jury waiver was included as 

alternative relief in the defendants' motion to sever, the 

defendants were not asked to sign a jury trial waiver. Although 

neither Khan nor any other defendant objected to a bench trial 

during either the motions hearing, the trial, or at the 

sentencing hearing, Khan now argues that he did not want to waive 

his right to a jury trial and that his trial counsel should have 

advised him not to waive the jury. 

The government responds that the waiver was a reasonable 

8 
strategic move. Answer at 7. That assessment is valid. The 

issues in this prosecution focused on the defendants' adherence 

to a radical form of Islam, and included allegations that the coconspirators were supportive of radical Islamic actions after the 

attacks of September 11. Trying such issues before a jury less 

than three years after the September 11 attacks presented a 

legitimate concern for defense counsel. 

On this record, Khan has failed to demonstrate that his 

counsel's advice to waive jury was outside "the wide range of 

reasonable professional assistance." Strickland, 466 U.S. at 

690. Moreover, the Fourth Circuit has explicitly recognized the 

strategic nature of the decision to waive a jury. On direct 

appeal, Khan argued that the jury trial waiver was invalid 

because the Court did not obtain a written waiver or conduct a 

colloquy. The Fourth Circuit rejected this argument, holding 

that defendants' waivers "were a knowing, voluntary, and 

intelligent part of their trial strategy, and we uphold them as 

valid." Khan II, 461 F.3d at 492. On this record it is clear 

that counsel's advice concerning the jury waiver was not 

deficient because it was within the range of reasonable 

professional assistance. 

Even if the advice to waive the jury constituted deficient 

performance, Khan has not demonstrated that the decision was 

prejudicial. The Court acquitted Khan on three counts, and later 

9 
~ acquitted co-defendant Benkhala of all charges. A related jury 

trial of an unindicted co-conspirator, Ali AI-Timimi, resulted in 

convictions on all counts. Khan simply fails to demonstrate that 

"the result of the proceeding would have been different,n 

Strickland, 466 u.s. at 694, if he had been tried by a jury, 

rather than the bench. Therefore, the Court does not find that 

trial counsel's advice as to the waiver of a jury constituted 

ineffective assistance of counsel. 

2. Sufficiency of the evidence 

Khan complains that trial counsel were ineffective because 

the evidence for each conviction was weak. Am. § 2255 Mot. at 

16-28. The sufficiency of the evidence was fully addressed and 

~ rejected on direct appeal with the Fourth Circuit holding that 

"there was sufficient evidence to support his [Khan's] conviction 

on those counts[.]n Khan II, 461 F.3d at 487-88, 488 n.6. 

"Absent a change in the law, a prisoner cannot relitigate in 

collateral proceedings an issue rejected on direct appeal. n 

United States v. Walker, 299 Fed. Appx. 273, 276 (4th Cir. 2008), 

see also, United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir. 

2004) ("Because the Defendants have not pointed to any change in 

the law that warrants our reconsideration of these claims, we 

agree with the district court that they cannot relitigate these 

issues."). The sufficiency of the evidence has been fully 

considered by the Fourth Circuit, accordingly, Khan cannot use 

10 
~ this § 2255 motion to get a second chance to raise the issue. 

For these reasons, this ineffective assistance of counsel claim 

will be dismissed. 

3. Failure to prepare for and perform effective witness 

examination 

Khan next argues that his trial counsel failed to prepare 

for and perform effective witness examination. Am. § 2255 Mot. 

at 28-38. This claim focuses on specific questions Khan believes 

trial counsel should have asked. For example, he complains that 

counsel failed to ask co-conspirator Kwon about a recorded 

telephone conversation between Kwon and Royer in which Kwon 

stated "nobody there told us to, you know, said go to 

Afghanistan." Am. § 2255 Mot. at 32. Khan fails to mention that 

in the same conversation Royer instructed Kwon not to mention 

Afghanistan to the government and that he must swear to "Sheik 

Ali" never to tell what occurred at the post-September 11 meeting 

with co-conspirator AI-Timimi. Answer at 28. Clearly, it was a 

reasonable strategic decision for trial counsel to avoid probing 

into the taped conversation. Therefore, this decision does not 

constitute ineffective assistance of counsel. 

Khan also complains that trial counsel failed to ask Kwon 

about cold-weather jackets that Khan purchased for himself and 

Kwon. At trial, the government argued that Khan's purchase of 

these jackets shortly after the meeting with AI-Timimi was 

significant because these jackets were for extreme cold whether, 

11 
which would be consistent with the high mountain climate where 

the LET training camps were located. Khan I, 309 F. Supp. at 

811, n.? In a declaration made more than four years after 

Khan's trial, Kwon stated that Khan purchased his jacket because 

he liked "high quality" and the jacket "would be a good buy." 

App. at 37. Although Khan's trial counsel did not elicit that 

answer from Kwon, his counsel did point out during closing 

argument that Khan had legitimate reasons for purchasing the 

jackets. 

Mr. Khan is not recommending to him a coat for war. He 

is recommending a coat for cold weather, again, a coat 

that Mr. Khan orders because he knows he's going to 

Pakistan before the dinner. 

Trial Tr. at 3414. 

9/15, Masaud (sic) Khan purchases the Cabela jacket. 

He's going to Pakistan, so he gets the coat to go to 

Pakistan. He's not getting the coat to go to training 

at LET. 

Id. at 3423. The government correctly argues that Khan's counsel 

made a sound strategic decision not to ask Kwon about the jacket 

because such questioning could easily have drawn attention to the 

fact that the jacket was particularly appropriate for the 

extremely cold climate in the high mountains where the LET camps 

were located. 

Khan also cites several other statements that Kwon made 

after Khan's trial and argues that such statements would have 

helped Khan had his counsel elicited them at trial. Am. § 2255 

12 
~ Mot. at 32-33. He first points to evidence from the subsequent 

trial of Ali Al-Timimi, in which Kwon testified: "I don't think I 

ever asked [Khan] to go to an LET camp." App. at 163. This 

testimony would have been irrelevant to Khan's defense because 

the government never argued that Kwon urged Khan to go to an LET 

camp. Moreover, because Khan's trial occurred before Kwon's 

testimony in Al-Timimi's trial, it is unreasonable to expect 

Khan's counsel to have anticipated such a response. Counsel's 

failure to ask that question does not constitute deficient 

performance under Strickland. Moreover, even if Kwon had 

provided the same testimony as he did in the Al-Timimi trial, 

Khan does not state how this testimony would have helped his case 

~ because there was no dispute in the evidence that Khan did go to 

the LET camps. 

Khan next cites statements that Kwon made to the Federal 

Bureau of Investigation in 2003 in which he said that 1) Royer 

told Kwon, or Kwon believed, that LET training was "funj" 2) 

Royer and Kwon believed "there would be no trouble since LET was 

not considered a terrorist group by the U.S. Governmentj" 3) Khan 

convinced Kwon not to go back to LET for further trainingi 4) 

Kwon and Khan refused the request of LET to assist them after 

they left the LET campi 5) Kwon erroneously believed Khan had 

fought in Afghanistan in the 1980'sj and 6) Khan did not fight 

after the LET training because he was eager to return to his 

13 
~ family. Am. § 2255 Mot. at 33. 

Khan's counsel had a good reason to avoid eliciting such 

statements because a major part of his strategy was to attack 

Kwon's credibility. For example, in his closing argument, 

counsel attacked Kwon's lack of knowledge of Khan's alleged 

activities in Afghanistan: 

Kwon also claims that his friend, Masaud (sic) Khan, 

tells him that he fought in the war in Afghanistan for 

three years. Mr. Kwon can't remember where he told 

him. It might have been at his house. And he can't 

even remember the year that he told him he fought 

there. 

Trial Tr. at 3416. Khan's counsel's reasonable strategy was to 

discredit Kwon; therefore, it would have been counterproductive 

to rely on Kwon's statements to the FBI. Moreover, Khan has not 

shown how such omissions were prejudicial to his case. 

Citing to the testimony in the Al-Timimi trial, Khan complains 

that his counsel also failed to question co-conspirator, Aatique, 

about Khan not influencing his decision to attend LET training. 

But Khan does not fully and accurately describe Aatique's 

testimony in the Al-Timimi trial: 

Q: Your actions, your telling them that you were going 

to camp influenced people like Khan to go to camp? 

A: If you ask my opinion about individuals, I'm not so 

sure about Masaud {sic} Khan, but probably influenced 

more Kwon and Hasan. 

App. at 156. That testimony would not have helped Khan. Aatique 

did not state that his decision to attend LET training was 

14 
~. 

~ 

~ 

\ 

independent from Khan's; rather, he only stated that he did not 

influence Khan's decision to go to the LET camp. 

Khan next cites co-conspirator Hasan's grand jury testimony 

that there was no plan to fight in Afghanistan and that "they 

would figure out what to do next" after completing their training 

in the LET camps. Am. § 2255 Mot. at 36. Khan argues that his 

lawyers' failure to elicit that testimony at trial constituted 

ineffective assistance. Yet, he fails to mention that when his 

trial counsel cross-examined Hasan, Hasan appeared to know little 

about the group's plans. In fact, Khan's trial counsel caused 

Hasan to admit not remembering anything Khan may have said about 

fighting in Afghanistan. 

Q: Sure. Mr. Khan never told you or Mr. Kwon, "I can't 

wait to get back to Afghanistan, because I know the 

terrain. I fought a war over there. I can tell you 

where to go, where to hide," things like that, correct? 

A: I don't recall anything like that. 

Trial Tr. at 1430. Khan has not demonstrated that failure to ask 

Hasan about his grand jury testimony was either deficient 

performance by counselor prejudicial. 

As to all of Khan's complaints about counsel's failure to 

adequately question these witnesses, the government points out 

that "Khan's attorneys made a number of helpful points through 

cross-examination." Answer at 35. In particular, counsel caused 

Kwon to admit that he never watched jihad videos with Khan, Trial 

Tr. at 1676; that Khan left the LET camps for almost a week, Id. 

15 
~ at 1660; and Khan would not have been able to hit a plane with 

his level of anti-aircraft gun training, Id. at 1703. Counsel 

caused Hasan to corroborate Khan's explanation that he left the 

LET camps to deal with legal issues in Pakistan, and to testify 

that Khan never said he planned to travel to Afghanistan, Id. at 

1428 and 1426. Lastly, during cross-examination of Aatique, 

counsel elicited corroboration of Khan's defense that he went to 

Pakistan to deal with a property issue in Pakistani courts. Id. 

at 1001-02. 

In sum, none of Khan's trial counsel's actions or omissions 

during cross-examination constituted ineffective assistance of 

counsel under Strickland. Therefore, all of these claims will be 

dismissed. 

4. Eliciting damaging information 

Khan also criticizes trial counsel for deciding to crossexamine Cynthia Reish, thereby eliciting evidence that helped the 

government build its case. Am. § 2255 Mot. at 38-41. Cynthia 

Reish was a government witness who testified about her sale of a 

model airplane control module to Khan after he returned from the 

LET camps. Khan claims that the cross-examination of "Reish 

provided no testimony that was helpful to Khan." Id. at 38. 

Khan misrepresents the cross-examination. As the government 

correctly argues, counsel elicited testimony from Reish that 

supported Khan's defense. Answer at 38. For example, Reish 

16 
~ acknowledged that Khan's e-mails did not indicate he was in a 

hurry to obtain the modulej Khan did not order an airframe or 

video link that often accompanies the autopilot modulej and Reish 

stated that Khan was not on a list of prohibited purchasers. 

Trial Tr. at 1589, 1590, and 1592. If trial counsel had declined 

to cross-examine Reish, as Khan now argues he should have, none 

of this helpful information would have surfaced. For these 

reasons, Khan fails to demonstrate that trial counsel's decision 

to cross-examine Reish was deficient or that it was prejudicial. 

Khan also attacks what he describes as his counsel's 

decision to ask the government to re-examine Khan's computer, 

which ultimately led to significant inculpatory evidence. Upon 

~ re-examination, the government discovered an incriminating chain 

of e-mail messages between Khan and Khalid, who was later 

identified as Pal Singh, the LET member for whom Khan ordered the 

airplane control module. Again, Khan's memorandum does not 

accurately characterize the record. The re-examination occurred 

after Khan's lawyer notified the government that Khan wanted to 

call an FBI special agent as a defense witness to testify about 

the lack of inculpatory information on Khan's computer. Because 

a defendant cannot call an FBI agent to testify without 

satisfying the Justice Department's Touhy regulations, 28 C.F.R. 

§ 1626, counsel had to provide the government with a general 

description of the testimony sought from the agent. Khan has 

17 
~ presented no evidence that he warned his counsel that his 

computer contained any incriminating messages. Moreover, the email message was only a small part of the evidence on which the 

Court convicted Khan. Therefore, Khan has not demonstrated 

ineffective assistance of counsel in dealing with his computer. 

5. Failure to investigate, prepare and call witnesses in 

Khan's favor 

Khan complains that his trial counsel failed to call five 

witnesses who would have strengthened his case and did not 

properly question Khan's mother, when she testified. Am. § 2255 

Mot. at 41-52. Trial counsel has great discretion in determining 

whether to call witnesses. " [C]ounsel has a duty to make 

~ reasonable investigations or to make a reasonable decision that 

makes particular investigations unnecessary. In any 

ineffectiveness case, a particular decision not to investigate 

must be directly assessed for reasonableness in all the 

circumstances, applying a heavy measure of deference to counsel's 

judgments." Strickland, 466 U.S. at 691. 

Khan argues that counsel should have called Karen Grant, 

Khan's neighbor. Am. § 2255 Mot. at 42. In a declaration signed 

nearly five years after the trial, Grant, who is Jewish, stated 

that Khan "was fine" with her support of Israel and "perhaps the 

gentlest soul that I have ever met." App. at 30. Khan's 

reputation among his neighbors was neither relevant nor in 

dispute, and such character testimony would not have undercut the 

18 
~ government's evidence of Khan's meeting with Al-Timimi, 

participation in LET training, and assisting LET in obtaining 

military equipment. 

Khan next challenges his counsel's failure to call codefendant Royer as a witness. Am. § 2255 Mot. at 42. In a 2008 

declaration submitted on behalf of Khan, Royer states that the 

September 16, 2001 meeting between Khan, some of his codefendants, and Al-Timimi was "not an exhortation to arms." App. 

at 35. Royer would have been a very incredible witness because 

his 2008 declaration contradicts his grand jury testimony in 

2004, in which he described Al-Timimi's call for Muslims to fight 

the United States. Answer at 45-46. Khan also cites Royer's 

~ 2008 statement that Khan never advocated violence against the 

United States or expressed a desire to travel to Afghanistan to 

fight Americans. App. at 36. That statement contradicts Royer's 

admission during his guilty plea, in which he admitted that he 

\\aided and abetted the use and discharge of a semi-automatic 

pistol by Masoud Khan, Yong Kwon, Mohammad Aatique, and Khwaja 

Hasan in Pakistan during, in relation to, and in furtherance of a 

crime of violence for which the defendant may be prosecuted in a 

court of the United States." Answer at 46-47. Counsel1s 

decision not to call Royer as a witness was a reasonable 

strategic decision and did not constitute ineffective assistance 

of counsel. 

19 
Khan also argues that trial counsel should have called his 

cousin, Ambreen Farzan, and a Pakistani attorney, Syed Mohammad 

Ali Rizvi, to testify about his stay in Pakistan. In a 

declaration made in 2008, Farzan stated that Khan stayed with him 

in Pakistan towards the end of September and beginning of October 

2001. Syed Mohammad Ali Rizvi, a Pakistani attorney who handled 

the settlement of Khan's father's estate in 2001, would have 

testified that he met with Khan in Pakistan on September 24, 

October 3, and October 9, 2001. Am. § 2255 Mot. at 44-47. 

Testimony from Farzan and Rizvi about Khan's meetings in late 

September and early October, however, would not have defeated the 

government's clear evidence that Khan did, in fact, attend the 

LET training camps between October 18, 2001 and mid-December, 

2001. Therefore, neither Farzan nor Rizvi would not have helped 

Khan's defense. 

Khan further contends that counsel should have called Kelli 

Shelton, who worked with Khan at Home Depot. Am. § 2255 Mot. at 

47. In a 2008 declaration, Shelton stated that Khan's Islamic 

views "were never extreme or hostile" and "I am sure he was not a 

terrorist." App. at 33-34. Such opinion testimony would not 

have been admissible. 

Lastly, Khan complains that counsel did not adequately 

question his mother, Elizabeth Khan. Am. § 2255 Mot. at 47. 

Khan claims that his mother could have provided documents that 

20 
~ rebut Kwon's claim that Khan said he fought in Afghanistan in the 

1980's. As the government correctly points out, the documents 

merely establish that Khan attended school in Saudi Arabia and 

Pakistan in the late 1980's. This evidence does not establish 

that Khan never traveled to Afghanistan sometime during that 

period. Therefore, counsel was not ineffective in failing to 

elicit these documents from Elizabeth Khan. 

In sum, Khan has failed to point to any act or omission by 

trial counsel that was unreasonable and prejudicial under 

Strickland. Therefore, all of Khan's ineffective assistance of 

counsel claims will be dismissed. 

c. Allegation that the government violated Bradv by failing to 

provide Khan with exculpatory information 

Khan requests an evidentiary hearing to determine whether 

the government violated Brady by withholding exculpatory 

information. Khan claims that at the time of trial, the 

government knew "much if not all of the information" that is 

contained in the 2008 affidavits of Kwon and Royer. Am. § 2255 

Mot. at 52-53. Khan provides no basis for this allegation other 

than the government's decision not to call Royer to testify at 

trial, which Khan claims "lends support to Mr. Khan's belief that 

Royer's exculpatory testimony was known to the government before 

trial." Id. 

The government carefully explains that it provided all of 

the information that was known to it at the time of Khan's trial. 

21 
~ Answer at 52-56. Moreover, as discussed above, the statements in 

Royer and Kwon's affidavits do not provide exculpatory evidence. 

"Unsupported, conclusory allegations do not entitle a habeas 

petitioner to an evidentiary hearing." Nickerson v. Lee, 971 

F.2d 1125, 1136 (4th Cir. 1992). Therefore, Khan's request for 

an evidentiary hearing regarding the government's compliance with 

Brady will be denied. 

D. Defects in the conviction under Count 5 

Khan argues that the government's introduction of evidence 

about his purchase of radio controlled model aircraft equipment 

amounted to a constructive amendment of Count 5, in violation of 

the Fifth Amendment. He also argues that his conviction under 

Count 5 should be dismissed because the indictment failed to 

allege a crime or overt act that would constitute material 

support for LET or amount to a conspiracy. Am. § 2255 Mot. at 

53-59. 

Count 5 charged Khan with conspiring between February 2000 

and June 2003 with the co-defendants to provide and conceal 

material support and resources knowing and intending that the 

materials and resources would be used in preparing for and 

carrying out a violation of 18 U.S.C. § 956 (the Neutrality Act) . 

Count 5 explicitly realleged and incorporated all the allegations 

and overt acts alleged in Count I, which included Overt Act 83 

(describing Khan's purchase of "an auto-pilot module for a radio22 
r controlled model aircraft."). Although Overt Act 83 did not 

allege that the purchase was for LET's benefit or that Khan 

transferred the equipment to LET, other sections of Count 1 

sufficiently alleged the involvement of LET. 

Khan waived this legal attack on the indictment by failing 

to raise it on direct appeal. "[T]o collaterally attack a 

conviction or sentence based upon errors that could have been but 

were not pursued on direct appeal, the movant must show cause and 

actual prejudice resulting from the errors . . . or he must 

demonstrate that a miscarriage of justice would result from the 

refusal of the court to entertain the collateral attack." United 

States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). 

"Cause" must "turn on something external to the defense, such as 

the novelty of the claim or a denial of effective assistance of 

counsel." Id. at 493. Khan has not demonstrated that he failed 

to raise the constructive amendment argument because of 

ineffective assistance of counsel. 

Even if he had raised this argument on appeal it likely 

would have failed because Count 5 clearly incorporated Overt Act 

89. In addition, the trial evidence established that Khan 

purchased and transferred the auto-pilot module to Pal Singh, who 

was identified as an LET agent. Specifically, the Court found 

that "Khan was aware and intended that his straw purchase of the 

autopilot module was for LET's military use." Khan I, 309 F. 

23 
r Supp. 2d at 822. 

An indictment is constructively amended only when the 

government or court "broadens the possible bases for conviction 

beyond those presented by the grand jury." United States v. 

Floresca, 38 F.3d 706, 710 (4th Cir. 1994) (en banc). The 

government is not required to include all of the overt acts in 

furtherance of a conspiracy in the indictment, nor is it limited 

by the indictment in presenting evidence of additional overt acts 

at trial. See, e.g., United States v. Janati, 374 F.3d 263, 270 

(4th Cir. 2004) ("It is well established that when seeking to 

prove a conspiracy, the government is permitted to present 

evidence of acts committed in furtherance of the conspiracy even 

~ though they are not all specifically described in the 

indictment.") . 

Alternatively, Khan argues that he should receive " [f]urther 

discovery on what the government knew about whether the remote 

control equipment Mr. Khan allegedly provided Khalid [Singh] had 

ever left England or had been used for any purpose other than 

Khalid's own personal use[.]" Am. § 2255 Mot. at 56. Without 

providing any factual support, Khan alleges that "[u]pon 

information and belief, Khalid was arrested before Khan's trial 

and the government had knowledge of the whereabouts and possibly 

the fact that the model airplane equipment was never delivered to 

Pakistan." Id. Khan is not entitled to an evidentiary hearing if 

24 
he can provide nothing more than "unsupported, conclusory 

allegations. II Nickerson, 971 F.2d at 1136. Therefore, the 

request for an evidentiary hearing will be denied. 

Khan cannot demonstrate that counsel was ineffective in 

failing to raise the adequacy of Count 5 on appeal. It was 

entirely reasonable for Khan's appellate counsel to choose not to 

raise such weak arguments and failing to raise them was not 

prejudicial. 

E. Vagueness and overbreadth of 55 2339A and 956 

Khan claims that 18 U.S.C. §§ 2339A and 956, the statutes 

involved in Counts 5 and 12-14, are unconstitutionally vague and 

overbroad because \I [a] person of ordinary common sense would not 

believe that visiting LET under these circumstances in the fall 

of 2001 could be a criminal act." Am. § 2255 Mot. at 59. 

Although Khan failed to raise this issue on direct appeal, he 

attempts to avoid procedural default by again arguing that 

appellate counsel was ineffective. This argument fails because a 

decision not to pursue a meritless appellate argument is not 

deficient performance. The trial record established that Khan 

did far more than "visit" LET camps. During the several weeks he 

stayed in the camps, he engaged in paramilitary training and 

after returning to the United States he stayed in touch with an 

LET operative and purchased military equipment for him. Even if 

the statutes were vague as applied to some defendants, Khan's 

25 
actions clearly were within their scope. Therefore, appellate 

counsel's decision not to raise this argument did not fall below 

an "objective standard of reasonableness." Mikalajunas, 186 F.3d 

at 493. Moreover, Khan has not demonstrated that such an 

argument would have been successful on appeal; therefore, he has 

not demonstrated prejudice. 

F. Inconsistency between conviction on Count 5 and acquittal on 

Count 10 

Khan argues that his conviction on Count 5, which charged a 

conspiracy to violate the Neutrality Act, is inconsistent with 

the acquittal on Count 10, which charged the substantive offense 

of violating the Neutrality Act, 18 U.S.C. § 960, and that 

appellate counsel was ineffective for failing to raise the issue. 

Am. § 2255 Mot. at 60. 

The elements of a Neutrality Act violation are: 1) a 

military expedition organized in this country; 2) against the 

territory or dominion of any foreign prince or state, or of any 

colony, district, or people with whom the United States is at 

peace; and 3) defendant provided means for the expedition in this 

district with knowledge of its character. Because Khan failed to 

raise the issue on appeal, the argument is procedurally defaulted 

unless he demonstrates that his appellate counsel's failure to 

raise the issue was deficient and prejudicial. 

Counts 5 and 10 are entirely different charges. The Court 

dismissed Count 10 because it found that there was insufficient 

26 
~ evidence that Khan organized his trip to the LET camp as an 

expedition against India. Khan I, 309 F. Supp. 2d at 824. Such 

evidence is not required for a conviction on Count 5, which 

charged that Khan conspired to provide material support to LET 

with the knowledge that LET was engaged in a conspiracy to commit 

crimes of violence and damage property in India. As with all of 

Khan's complaints about the failure of appellate counsel to raise 

various arguments, this claim fails. As the Supreme Court has 

recognized, there is no constitutional requirement for counsel to 

raise every colorable issue on appeal. Jones v. Barnes, 463 U.S. 

745, 752 (1983). 

G. Predicate offenses for the three gun counts 

Khan argues that the Court should vacate at least one of the 

convictions charged in Counts 24, 25, and 27 on the ground that 

only Counts 2 and 4 can serve as predicate offenses for the gun 

counts. Am. § 2255 Mot. at 60-61. Counts 24, 25, and 27 were 

brought under }8 U.S.C. § 924(c}, whose elements are: I} knowing 

use and discharge of a firearm; 2) during and in relation to a 

crime of violence. Khan was convicted of using and discharging 

an AK-47 rifle (Count 24), a 12 mm anti-aircraft gun (Count 25), 

and a rocket-propelled grenade (Count 27), while training at the 

LET camps. The Court found that the "conspiracies charged in the 

indictment" were among the predicate crimes of violence for these 

counts. 309 F. Supp. 2d at 826-27. Khan was convicted on four 

27 
conspiracy counts: Counts I, 2, 4, and 5. 

Khan argues, and the government concedes, that because Count 

1 should be vacated, it cannot serve as a predicate offense for 

the firearm counts. Khan also argues that Count 5 cannot serve 

as a predicate offense because the firearms were not fired in 

Pakistan "in furtherance of the transfer of the model airplane 

equipment purchase and transfer in Count 5, which happened more 

than a year later and in another country." Am. § 2255 Mot. at 

61. Because only two conspiracy counts remain, Khan argues, at 

least one of the gun counts must be dismissed. The government 

responds that Count 5 can serve as a predicate offense and that 

non-constitutional violations of federal law are not subject to 

collateral review. Answer at 68. 

Khan does not dispute that Counts 2 and 4 can serve as 

predicate offenses for the gun convictions. In fact, the 

superseding indictment incorporated Counts 1 through 10 as 

predicate offenses for all of the gun charges. Khan was 

convicted of three firearm counts, each based on a different 

weapon that he discharged, but all in furtherance of the multiple 

conspiracies alleged including Counts 2, 4, and 5. Khan cites no 

law that requires each gun count to be based on a separate 

predicate offense. Therefore, he is not entitled to relief as to 

these convictions. 

H. Resentencing for the 924(c) gun counts 

28 
~ Khan also argues that he should be resentenced on Counts 24, 

25, and 27 because the trial court opinion did not repeat the 

verbatim language of the indictment. Am. § 2255 Mot. at 61-62. 

For Counts 24, 25, and 27, the indictment charged Khan and his 

co-conspirators with violating Section 924{c) by knowingly using, 

carrying, possessing, and discharging firearms "during, in 

relation to, and in furtherance of crimes of violence." 

Indictment at 38. In its findings, the trial Court listed the 

elements of these crimes as "1) knowing use and discharge; 2) 

during and in relation to a crime of violence." Khan I, 309 F. 

Supp. 2d at 826. Khan argues that by omitting "in furtherance 

of," the Court convicted Khan on a weaker evidentiary standard. 

~ To support his argument, Khan cites United States v. Combs, 369 

F.3d 925 (6th Cir. 2004), which involved flawed jury 

instructions. Khan's case is entirely different because he was 

found guilty in a bench trial, in which the Court was the factfinder. The government correctly argues that the Court was 

merely reciting elements of the crime as an explanation for its 

decision. Answer at 70-71. Therefore, the discrepancy between 

the language in the indictment and the Memorandum Opinion does 

not give rise to resentencing. 

Khan also argues that trial counsel was ineffective for 

failing to argue that there was no evidence that Khan actually 

fired an AK-47. Am. § 2255 Mot. at 62. Khan complains that in 

29 
his closing argument, trial counsel "erroneously (conceded) that 

a witness stated that Khan fired an AK-47." But counsel's 

statement, when read in its entirety, was aimed at disproving the 

AK-47 charge: 

Does this story even make sense? He's been there three 

days when the other people arrive, and apparently they 

then start training together. Most notably, he says, 

none of them fired antiaircraft guns. He has them only 

firing an AK-47 and RPGs, once each. 

How can the Court know that the AK-47s can even be 

fully automatic if the witnesses testified to only 

shooting them once? There's no testimony from Mr. 

Aatique or any of the other witnesses that there are 

any other machine guns fired. 

Trial Tr. at 3410. Contrary to Khan's view of the record, it was 

witness testimony that supported the conviction on these counts, 

~ not counsel's argument. For example, Hasan testified that the 

group shot AK-47s: 

Q: And what type of training did you and Masaud (sic) 

Khan and Yong Kwon receive at the ibn Masood training 

camp? 

A: We got different types of training. We got to shoot 

an AK-47. 

Trial Tr. at 1379. Therefore, Khan has not demonstrated that his 

arguments about counsel's performance concerning the AK-47 charge 

constituted ineffective assistance. 

I. Rule 35(b) and Due Process 

Finally, Khan argues that most of the evidence came from 

cooperating witnesses who expected sentence reductions under Fed. 

R. Crim. P. 35(b). Without citing to any case law or other 

30 
authority, Khan argues that this gyig pro gyQ system violated his 

due process rights. Am. § 2255 Mot. at 63. 

As the government points out, each plea agreement explicitly 

required the cooperating witness to testify truthfully and this 

obligation was recognized by the witnesses. For example, Aatique 

testified that his plea agreement required him "to be truthful to 

the government and whenever I'm asked to testify for - regarding 

any, any of the trials that may result from this investigation." 

Trial Tr. at 785. Given the lack of authority supporting Khan's 

view of cooperation agreements and the evidence in the record, 

Khan fails to establish that the testimony of these witnesses or 

the plea agreements under which they testified deprived him of 

due process. 

IV. Conclusion 

For the reasons stated above, Masoud Khan's Amended Motion 

Under 28 U.S.C. § 2255 [Dkt. No. 694] will be granted in part and 

denied in part on the basis of the pleadings and without an 

evidentiary hearing. Count 1 will be vacated, and Khan will be 

reimbursed $100.00 for the special assessment he paid; however, 

because the sentence of imprisonment imposed on Count 1 runs 

concurrent to the sentences imposed on Counts 2, 4, 5, and 11, no 

other changes will be made to the Judgment. 

31 
An Order consistent with this Memorandum Opinion as well as 

an Amended Judgment will issue. 

Entered this day of May, 2011. 

Leonie M. Brinkema 

United States District Judge 

Alexandria, Virginia 

32