United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2017 Decided July 21, 2017

No. 16-3102

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)

Nathaniel H. Nesbitt argued the cause for appellant. With 

him on the briefs was Peter S. Spivack.

Vijay Shanker, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With him on the brief were 

Trevor N. McFadden, Deputy Assistant Attorney General, and 

Matthew Robert Stiglitz, Attorney. Elizabeth Trosman, 

Assistant U.S. Attorney, entered an appearance.

Before: ROGERS, MILLETT and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.
2

PILLARD, Circuit Judge: Appellant Khan Mohammed was 

extradited from Afghanistan to the United States and 

convicted, following a 2008 jury trial, of international drug 

trafficking and narcoterrorism, i.e., using drug proceeds to fund 

terrorists or terrorism. This case comes to us on direct appeal 

a second time, after this court affirmed Mohammed’s sentence 

and conviction but remanded for an evidentiary hearing on his

claim of ineffective assistance of counsel. See United States v. 

Mohammed, 693 F.3d 192 (D.C. Cir. 2012). We conclude that 

the performance of Mohammed’s trial counsel was 

constitutionally deficient. Counsel failed to investigate the 

possibility of impeaching the government’s central witness as 

biased against Mohammed, despite ample indication that he 

should and could do so. Our review persuades us, however,

that counsel’s deficient performance did not prejudice 

Mohammed as to the drug trafficking charge. As to the 

narcoterrorism charge, we cannot on this record confidently 

assess prejudice, and therefore remand to the district court for 

further proceedings on that issue. 

I.

We assume familiarity with our prior decision and the 

district court’s opinion on remand. See United States v. 

Mohammed, No. 06-357, 2016 WL 3982447 (D.D.C. July 22, 

2016). We recite here only those facts relevant to our 

disposition. 

At a status conference more than two months before trial, 

Mohammed’s trial counsel advised the district court that he 

intended to seek witnesses in Afghanistan on Mohammed’s 

behalf, but noted that there were “very difficult obstacles in 

terms of finding witnesses, locating them, and then somehow 

bringing them to the United States under some type of parole 

visas.” 2/25/08 Status Hearing Tr. at 9. Months later, on the 

eve of trial, counsel confirmed that he “did look into ... how 

do you even get [to Afghanistan], and who [from the office] 
3

was I going to take,” but there were “no volunteers.” 5/2/08 Ex 

Parte Hearing Tr. at 38. Ultimately, as counsel conceded, he 

failed to “follow through” on his previously expressed intent to 

contact witnesses in Afghanistan. Id. Although the 

government provided a contact list from Mohammed’s phone 

book in discovery, counsel never attempted to call any potential 

witnesses in Afghanistan and, in fact, mistakenly represented 

that he “wasn’t given telephone numbers.” Id. at 37. 

The district court also asked Mohammed himself whether 

he had told counsel to contact any potential witnesses in 

Afghanistan. 5/2/08 Ex Parte Hearing Tr. at 21. Mohammed 

responded that he had “asked [counsel] to bring my witnesses,” 

and specifically identified four witnesses who would say that 

he was not associated with the Taliban. Id. at 21-22. Counsel 

confirmed Mohammed had given him those four names but 

apparently thought the only way he could have spoken with the 

potential witnesses would have been to travel to Afghanistan, 

which he concluded posed “insurmountable” difficulties. Id. at 

36. 

One of the key issues on which witnesses in Afghanistan 

might have shed light was the credibility of the government’s 

confidential informant and central witness at trial, a man 

known by the pseudonym Jaweed. Mohammed’s trial counsel 

was aware of the possibility that Jaweed had a criminal history 

that could be useful in undermining his credibility, as shown 

by his request that the government perform a Lewis check—

pursuant to Lewis v. United States, 393 A.2d 109 (D.C. 

1978)—into Jaweed’s criminal history in Afghanistan. That 

check produced no governmental records on Jaweed and 

counsel did not further pursue the issue. 

Counsel briefly raised the possibility of impeaching 

Jaweed as biased against Mohammed. The two men, hailing 
4

from the same village, had known each other for some time; 

indeed, Jaweed’s mother once asked Mohammed if he would 

consider allowing Jaweed to marry Mohammed’s sister, an 

inquiry that evidently did not yield the desired result for 

Jaweed. See Mohammed, 2016 WL 3982447, at *14. At a 

status conference a couple of weeks before trial, counsel noted 

that Jaweed had “been previously accused with a lawsuit.” 

4/22/08 Status Hearing Tr. at 6. But counsel represented 

(erroneously, it is now claimed) that the lawsuit did not involve 

Mohammed, and the district court advised that, barring some 

connection to Mohammed, evidence relating to the lawsuit 

would not be admissible to show bias. Id. at 5-8. The district 

court stated, however, that counsel would be free to explore 

possible bias arising from Mohammed’s victory in a local 

election over Jaweed’s cousin. See id. at 7-8. Counsel took no 

steps to investigate the election, Mohammed’s potential 

connection to the lawsuit, or other possible sources of bias.

At trial, the government’s case rested on two pillars: the 

recordings of Jaweed’s undercover conversations with 

Mohammed, and Jaweed’s own testimony, which addressed 

the meaning of those conversations and, more broadly, the two 

men’s interactions. Jaweed’s testimony was, as trial counsel 

later recalled, “the bread and butter of the case.” 12/3/15

Evidentiary Hearing Tr. at 25. The government repeatedly 

asked Jaweed to clarify the meaning of exchanges between him 

and Mohammed. Mohammed identifies 118 such 

clarifications, but counsel objected only once, about halfway 

through. See Appellant Br. 7. On that occasion, the 

government asked Jaweed to clarify the meaning of 

Mohammed’s statement, “I will, God willing, speak with them, 

this will be done and that, too, and the work will be ready.” 

5/12/08 A.M. Trial Tr. at 25. Counsel objected that the 

question called for speculation and lacked foundation. Id. at 

25-26. The district court overruled the objection, explaining 
5

that, in its view, Jaweed was “entitled to say what he 

understands Khan Mohammed to be saying.” Id. at 27. Jaweed 

then testified that Mohammed “was trying to say that he would 

see or speak with [Taliban commanders, and] the work of 

missiles and the opium would be done.” Id. 

Trial counsel’s cross-examination of Jaweed focused on 

the possibility that Jaweed had monetary incentives—he was 

paid $8,000 for his work as an informant, see 5/13/08 A.M. 

Trial Tr. at 86-87—to testify against Mohammed. He did not 

probe any preexisting bias on Jaweed’s part against 

Mohammed. Trial counsel called no defense witnesses. 

Mohammed appealed on several grounds, including 

ineffective assistance of counsel. This court affirmed the

conviction and sentence and remanded for the district court to 

hold an evidentiary hearing on the ineffectiveness claim. See 

Mohammed, 693 F.3d at 195, 204. On the initial appeal, we 

noted that “the thrust of Mohammed’s argument” was that 

“counsel should have made some effort to learn if the 

[potential] 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.” 

Id. at 203. The court determined that, because “Jaweed’s 

testimony arguably shaped how the jury understood 

Mohammed’s words,” counsel’s failure to challenge Jaweed’s 

credibility could have been prejudicial and a remand was 

necessary for the district court to develop evidence and decide 

the issue in the first instance. Id. at 204. 

On remand, the district court received declarations from 

Mohammed’s appellate counsel and his trial counsel and held

an evidentiary hearing at which trial counsel and Mohammed 

testified. Mohammed’s appellate counsel stated that, in 2011, 

while working on Mohammed’s first appeal, he managed to 
6

interview 28 witnesses in Afghanistan over the phone. See

Declaration of Shardul Desai ¶¶ 9-11 (Feb. 28, 2013). Those 

witnesses stated that Jaweed had a bad reputation for “criminal 

behavior and gangsterism,” with one witness adding that he 

was “a liar and an oath-breaker,” and that Mohammed was a 

well-regarded local leader who was not in the Taliban. Id. at 

¶¶ 13-14, 20-21. Of particular note, one witness, Malek 

Rezwan, stated that he sat on a tribal arbitration council (jirga) 

with Mohammed in which Jaweed was found to have stolen 

jewelry, opium, and money. Id. at ¶ 16. Rezwan recalled 

Jaweed being particularly “vengeful” toward Mohammed for 

casting his vote in support of a ruling against Jaweed because 

he thought Mohammed should have voted “along village 

lines.” Id. Rezwan said that he and others overheard Jaweed 

tell Mohammed: “I will not leave you alone even if it takes 20 

years.” Id.

The district court rejected Mohammed’s ineffectiveness 

claim principally on the ground that trial counsel reasonably

responded to matters that Mohammed timely brought to his 

attention for possible investigation. In particular, the court 

focused on the four potential witnesses whom, it found, 

Mohammed specifically identified for counsel. See 2016 WL 

3982447, at *17. The court concluded that counsel reasonably 

did not pursue those witnesses given the limited information he 

had, and that, in any event, Mohammed failed to establish that 

those witnesses would have provided helpful information. See 

id. at *23. 

II.

To prevail on a claim of ineffective assistance of counsel, 

“the defendant must show that (1) his counsel’s performance 

‘fell below an objective standard of reasonableness,’ and (2) 

‘there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 
7

been different.’” Payne v. Stansberry, 760 F.3d 10, 13 (D.C. 

Cir. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 

687-88, 694 (1984)). Reviewing courts “must indulge a strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance,” and the defendant “must 

overcome the presumption that, under the circumstances, the 

challenged action ‘might be considered sound trial strategy.’” 

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 

U.S. 91, 101 (1955)). On appeal of a district court’s denial of 

an ineffectiveness claim, this court reviews “for clear error any 

findings of historical fact embedded in the District Court’s 

conclusions on deficient performance and prejudice,” and 

reviews questions of law de novo. United States v. Nwoye, 824 

F.3d 1129, 1135 n.4 (D.C. Cir. 2016); see also Payne, 760 F.3d 

at 13. 

A.

Mohammed principally contends that his trial counsel 

rendered constitutionally deficient performance by failing to 

investigate Jaweed’s possible bias. Defense counsel “has a 

duty to make reasonable investigations or to make a reasonable 

decision that makes particular investigations unnecessary.” 

Strickland, 466 U.S. at 691. “Where the case involves a failure 

to investigate, the ‘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.’” United States v. McDade, 699 F.3d 499, 506 

(D.C. Cir. 2012) (quoting Strickland, 466 U.S. at 691). 

Counsel reasonably may decline to investigate when she or he 

determines that any potential information an investigation 

might uncover would have limited value or “could be easily 

attacked on cross-examination.” Id. at 507. 

The complete failure to investigate potential impeachment 

witnesses cannot be construed as a strategic decision on the part 

of defense counsel. See, e.g., Reynoso v. Giurbino, 462 F.3d 
8

1099, 1112 (9th Cir. 2006) (“[I]f counsel’s failure to 

investigate possible methods of impeachment is part of the 

explanation for counsel’s impeachment strategy (or a lack 

thereof), the failure to investigate may itself constitute 

ineffective assistance of counsel.”); Tucker v. Ozmint, 350 F.3d 

433, 444 (4th Cir. 2003) (“Trial counsel have an obligation to 

investigate possible methods for impeaching a prosecution 

witness, and failure to do so may constitute ineffective 

assistance of counsel.”); cf. United States v. Debango, 780 F.2d 

81, 85 (D.C. Cir. 1986) (“The complete failure to investigate 

potentially corroborating witnesses . . . can hardly be 

considered a tactical decision.”). “It is especially important 

that counsel adequately investigate the case,” because “[o]nly 

when reasonable investigation has been performed is counsel 

in a position to make informed tactical decisions.” United 

States v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987). “In 

assessing the reasonableness of an attorney’s investigation ... 

a court must consider not only the quantum of evidence already 

known to counsel, but also whether the known evidence would 

lead a reasonable attorney to investigate further.” Wiggins v. 

Smith, 539 U.S. 510, 527 (2003). 

This case involves a “complete failure to investigate.” 

Debango, 780 F.2d at 85. Counsel failed to take the obligatory 

step of calling potential witnesses, starting with the contact list 

that the government provided in discovery months before trial

that identified people in Mohammed’s and Jaweed’s home 

town in Afghanistan who knew Mohammed and might be able 

to provide information relevant to the case or to Jaweed’s and 

Mohammed’s past interactions. In fact, counsel evidently 

forgot that he had been given the contact list. See 5/2/08 Ex 

Parte Hearing Tr. at 37. As counsel himself acknowledged, he 

failed to “follow through” on his previously expressed intent to 

contact witnesses in Afghanistan. Id. at 38. Indeed, as this 

court previously noted, counsel “expressed to the court his fear 
9

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.” Mohammed, 693 F.3d at 196.

Counsel’s failure to place calls or otherwise reach out to 

potential witnesses cannot be traced to any strategic decision. 

Counsel did not decide against investigating based on any 

reasoned anticipation that the evidence unearthed or testimony 

of anyone he might reach would be of limited value or would 

be vulnerable on cross-examination. Cf. McDade, 699 F.3d at 

507. Mohammed gave him no reason to think that 

investigation “would be fruitless or even harmful.” Strickland, 

466 U.S. at 691. Counsel did not and could not know what he 

would find out had he picked up the phone; he was thus in no 

“position to make informed tactical decisions.” Barbour, 813 

F.2d at 1234.

Notably, counsel was aware that Jaweed’s testimony 

would be central to the upcoming trial. And counsel took 

preliminary steps to understand Jaweed’s background, 

including asking the government to search for any official 

criminal records. But he did not investigate the possibility of 

Jaweed’s bias, despite having some important clues on that 

score. First, counsel knew several months before trial that, 

while in custody pending extradition, Mohammed made 

statements about his history of conflict with Jaweed and about 

Jaweed’s past misconduct “in an attempt to ascribe a motive 

for Jaweed to fabricate evidence or lie, or otherwise to impugn 

Jaweed’s credibility.” Mohammed, 2016 WL 3982447, at *6. 

And, as the district court found, Mohammed told counsel at 

least a couple weeks before trial that “Jaweed may have a 

vendetta against Mohammed because Mohammed won a local 

election” against Jaweed’s preferred candidate. Id. at *20. 

Counsel was also aware that Jaweed had once sought 
10

unsuccessfully to marry Mohammed’s sister. See id. at *14. In 

light of all that information, the possibility that Jaweed might 

be biased against Mohammed was clearly worth investigating. 

Cf. Wiggins, 539 U.S. at 527-28 (“[C]ounsel chose to abandon 

their investigation at an unreasonable juncture, making a fully 

informed decision ... impossible.”). 

We respectfully disagree with the district court that 

counsel “was under no duty to investigate whether Jaweed was 

biased against Mohammed when the only information he had 

about this purported bias was the election.” Mohammed, 2016 

WL 3982447, at *22. Any information about potential sources 

of bias in a witness as crucial as Jaweed should have led to 

further investigation. Yet counsel did not investigate, 

apparently because he mistakenly believed he would need to 

travel to Afghanistan to do so. 

The district court appears to have concluded that counsel 

could not be expected to take investigative steps that 

Mohammed did not specifically suggest to him. But even when 

defendants are “fatalistic or uncooperative,” that “does not 

obviate the need for defense counsel to conduct some sort of ... 

investigation.” Porter v. McCollum, 558 U.S. 30, 40 (2009). 

Indeed, when defendants are “actively obstructive,” they 

remain entitled to effective counsel. Rompilla v. Beard, 545 

U.S. 374, 381 (2005). “[C]ounsel has a duty to investigate, 

even if his or her client does not divulge relevant information,” 

Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014), and counsel 

may not “ignore[] pertinent avenues for investigation of which 

he should have been aware,” Porter, 558 U.S. at 40. We 

therefore conclude that Mohammed’s trial counsel gave

constitutionally deficient assistance in failing to investigate 

Jaweed’s possible bias. 

Mohammed also claims that counsel rendered ineffective 

assistance by failing to timely object—and to lodge a standing 
11

objection—to Jaweed’s frequent “interpretations” of his 

conversations with Mohammed. We agree that a proficient 

attorney would have promptly objected and, once it became 

clear the government would repeatedly solicit Jaweed’s 

testimony about Mohammed’s state of mind, lodged a standing 

objection. See, e.g., 5/9/08 P.M. Trial Tr. at 47-53 (government 

counsel on direct examination repeatedly asking Jaweed to 

explain Mohammed’s meaning, rather than Jaweed’s 

understanding of what Mohammed was telling him). Had 

Jaweed’s entire testimony been confined to what Jaweed 

understood, not what Mohammed meant—as the district court 

ultimately suggested it should be, see 5/12/08 A.M. Trial Tr. at 

27—the jury likely would have better appreciated the 

limitations of that testimony. Had Mohammed’s counsel also 

independently sown doubt as to Jaweed’s credibility, the subtle 

distinction between Jaweed’s actual testimony (about 

Mohammed’s state of mind) and testimony to which Jaweed 

should have been confined (about what he understood 

Mohammed to mean) could have been significant. Thus, the 

failure to object to Jaweed’s interpretations should be 

considered part and parcel of counsel’s failure generally to 

undermine Jaweed’s testimony. 

B.

In assessing prejudice, the ultimate question is whether 

Mohammed has shown a reasonable probability that adequate 

investigation would have enabled trial counsel to sow sufficient 

doubt about Jaweed’s credibility to sway even “one juror.” 

Hope v. Cartledge, 857 F.3d 518, 524 (4th Cir. 2017) (quoting 

Wiggins, 539 U.S. at 537); Vega, 757 F.3d at 974 (same). We 

conclude as to the drug trafficking charge that, as the 

government put it, “the recordings spoke for themselves and 

directly implicated Mohammed through his own unequivocal 

words and conduct.” Appellee Br. 44. Even if Jaweed had 

been effectively impeached and shown to be biased, the jury 
12

would have convicted based on Mohammed’s own words. For 

instance, when informed by Jaweed that the drugs he was 

selling were bound for America, Mohammed enthused that 

“the Jihad would be performed since they send it to America.” 

Gov’t Ex. 2I at 1. Mohammed himself, speaking on the 

wiretap, disclosed the requisite knowledge or intent that the 

drugs he was trafficking would be imported to the United 

States. See also Gov’t Ex. 2H at 2-3, 8. 

On the existing record, however, we cannot exclude the 

possibility of prejudice as to the narcoterrorism conviction. 

Jaweed’s testimony was the only evidence that linked 

Mohammed to the Taliban. It thus provided critical support for 

the narcoterrorism charge. See 5/9/08 P.M. Trial Tr. at 47-53; 

5/12/08 A.M. Trial Tr. at 6-8, 28, 32-35, 63, 66. At trial, the 

government pursued two distinct theories for convicting 

Mohammed of narcoterrorism—that he had personally 

engaged in terrorist activity, and that he was “acting as a 

conduit of the Taliban,” a terrorist organization. 5/15/08 Trial

Tr. at 50. It is not clear which theory the jury believed. Given 

the government’s own emphasis on the Taliban’s role in 

Afghan drug trafficking and its use of drug proceeds to fund 

terrorism,see id. at 50-51, it is reasonably probable that the jury 

convicted Mohammed not of being a terrorist who retained

drug proceeds for himself, but of using drug sales to fund the 

Taliban. 

Because Jaweed’s testimony provided the only 

unambiguous link between Mohammed and the Taliban, 

however, it is reasonably probable that the jury would not have 

convicted Mohammed if Jaweed’s testimony could have been 

effectively undermined. The government objects that the 

evidence also showed that Mohammed “provided commissions 

to himself, and that he had engaged and planned to engage in 

terrorist activity,” so that the jury could have convicted without 

relying on Jaweed to link Mohammed to the Taliban. Appellee 
13

Br. 47; cf. Griffin v. United States, 502 U.S. 46, 60 (1991) 

(refusal to instruct the jury not to consider an “alternative basis 

of liability that does not have adequate evidentiary support ... 

does not provide an independent basis for reversing an 

otherwise valid conviction”). But due to counsel’s inadequacy, 

the jury had no way to factor in the missing impeachment 

evidence. We accordingly cannot safely assume that counsel’s 

performance did not affect the verdict.

We cannot evaluate on the record as it stands, however, the 

probability that an adequate investigation would have resulted 

in effective impeachment of Jaweed’s testimony. On this 

point, the district court “focus[ed] its analysis” on the four 

potential witnesses whom, it found, Mohammed had 

specifically suggested to counsel before trial. Mohammed, 

2016 WL 3982447, at *17. The district court concluded that 

Mohammed had not demonstrated prejudice because he never

“established that these witnesses would have been able to 

testify that any animosity existed between Mohammed and 

Jaweed.” Id. at *23; see also id. at *4, *24.

The district court’s exclusive focus on the four potential 

witnesses Mohammed named was too limited. As this court 

previously suggested, it is relevant not just “what Mohammed 

told his attorney” but also “what his attorney [might] have 

uncovered himself during trial preparation,” starting with the 

contact list the government provided in discovery. 693 F.3d at 

203. As appellate counsel’s inquiries illustrated, an adequate 

investigation would involve following up with witnesses 

besides the four Mohammed specifically identified in an effort 

to identify anyone able to testify about what appears likely to 

be a potent source of impeachment evidence: Mohammed’s 

role in Jaweed’s jirga and Jaweed’s enraged response. See 

Mohammed, 2016 WL 3982447, at *22 (district court 

acknowledging, even as parties agreed not to postpone trial, 
14

that investigation “might have uncovered some evidence of 

Jaweed’s purported bias towards Mohammed”).

On the current record, and without additional district court 

findings, we cannot confidently assess what a reasonable 

investigation in 2008 could have found. Cf. United States ex

rel. Cross v. DeRobertis, 811 F.2d 1008, 1016-17 (7th Cir. 

1987) (remanding for further proceedings where “the record 

was not sufficiently developed to allow a comprehensive 

analysis of the ‘prejudice’ component of the Strickland test”). 

That incompleteness, in our view, cannot “fairly be 

characterized as a failure of proof” on Mohammed’s part. Id.

at 1017. It does not appear that Mohammed failed to “show to 

the extent possible precisely what information would have been 

discovered through further investigation.” United States v. 

Gwyn, 481 F.3d 849, 855 (D.C. Cir. 2007) (quoting United 

States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)). Rather, 

the proceedings in the district court did not reconstruct what an 

adequate investigation in 2008 could have uncovered and how 

counsel could have used that information at trial (as fodder for 

cross-examination as well as direct testimony). Cf. United 

States v. Cordova, 806 F.3d 1085, 1091 (D.C. Cir. 2015)

(finding no prejudice based in part on appellants’ failure to 

identify how their cross-examination might have benefitted 

from additional information). 

Reconstruction of what a reasonable investigation could 

have uncovered was made unnecessary by the district court’s 

conclusions on the first Strickland prong, but because we hold 

that counsel’s performance was deficient, this step must be 

taken on remand. We leave to the district court in the first 

instance to decide whether more evidence should be 

introduced—such as testimony from Mohammed’s appellate 

counsel about the investigation he performed, or even a proffer 

of testimony in some form from the witnesses he contacted.
15

* * *

For these reasons, we affirm in part and vacate in part the 

decision below and remand to the district court for further 

proceedings consistent with this opinion. 

So ordered.