[00:00:03] Speaker 03:
case number 16-3102, United States of America versus Khan Muhammad appellant.

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Mr. Nesbitt for the appellant, Mr. Shankor for the appellee.

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Good morning.

[00:00:23] Speaker 00:
Good morning.

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May it please the court, court appointing counsel for Mr. Muhammad.

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With me at counsel table is Peter Skibeck.

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There's a reasonable probability that Mr. Mohammed was convicted in this case of both offenses because trial counsel failed to pick up the telephone and call potential witnesses using numbers he admittedly received in discovery.

[00:00:46] Speaker 03:
And what would those witnesses have testified to?

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Those witnesses would have testified about the credibility of Jawid, the character at the center of the government's investigation and sting operation against Mr. Mohammed, and they would have provided evidence that Mr. Mohammed was not a member of the Taliban.

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which went to one of the central elements of the narco-terrorism charge.

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As to the first, was there no evidence before the jury of the relationship between the two parties?

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I believe that's right, Your Honor.

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And that's a fact of which Mr. Venegas, Mr. Muhammad's trial counsel, was aware, in addition to other information that should have led him to pick up that telephone, call potential witnesses.

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I don't know if you understood my question.

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I just want to be clear that you did.

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At trial, was there any evidence or testimony about the relationship between the defendant and the government's key witness?

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I don't believe there was, Your Honor, no.

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It was trial counsel's failure to pick up the telephone, contact witnesses that infected the integrity of the entire proceeding.

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So the jury knew

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that the two men knew each other and that they had this conversation.

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I don't believe it came out at trial that the two men knew each other.

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Well, they met each other and had a conversation.

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Well, I mean, knew each other prior to their interactions that were memorialized on those audiotapes.

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They were played extensively for the jury over the course of two days.

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So that's certainly true.

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But I'm referring to these two individuals' extensive past history.

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No, I just want to know what the jury knew, that's all.

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Yes, I think what the jury knew was limited to what they heard on those audiotapes.

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There was nothing at cross-examination of Joey that brought out any of the past?

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Mr Vanegas's cross of Joweed was limited to impeachment based upon the money he received from the DEA.

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He received $8,000.

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So that shows that credibility was on trial counsel's mind, and yet he never considered, and he admitted that he never considered the prospect of Joweed being biased against Mr. Muhammad.

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That's at 542, 553, and 709 of the record.

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He had good reason to think about it.

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So the jury heard that

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these two men had a conversation and that Mr. Jowee decided to turn state's evidence?

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They knew that, Your Honor, and Jowee testified

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when was in fact the only person to testify about the alleged conversation that he had with the alleged Taliban operator in Pakistan, after which he went back to Afghanistan and got Mr. Mohammed involved in what ultimately became the sting operation against him.

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And the jury never heard from any other source about that piece of the evidence, which was crucial to the government's case.

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I understand your point about the jury could have heard other things.

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I'm just trying to focus on what the jury actually heard, both in terms of evidence, and I haven't asked you yet about arguments of counsel, but they knew that Joweed

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was a government witness who decided to testify in a manner that would adversely affect the defendant.

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And is that all they knew?

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You're right that they knew that, Your Honor, and that's what they learned.

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Is that all they knew?

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About Jawid's back?

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Yes.

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The answer to that is yes.

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I mean, there wasn't anything drawn out about the relationship between Mr. Muhammad and Mr. Jawid.

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Is that responsive to Your Honor's question?

[00:04:48] Speaker 03:
Yeah, I'll see what the government says.

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I don't want to focus too much on the unreasonableness of Mr. Banegas' decision not to call those witnesses.

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I think the key points there are he knew that Jawid was the central witness that bread and buttered the case, in his own words, of the government's case.

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It was that the evidence was not just presented to the jury through Jawid over the course of two days, but Jawid was also the person who collected the evidence against Mr. Mohammed and was, as I mentioned, the only linkage between the alleged Taliban operator in Pakistan and Mr. Mohammed.

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And my questions really responded to your opening statement, which was focusing on why the person you represent was denied a Sixth Amendment right, and part of that denial was he suffered prejudice that would have affected the outcome of the trial.

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and I'm trying to track that down.

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Yes.

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Your Honor, with respect to the prejudice point, the key point is that because Mr. Venegas did not conduct that initial investigation, he didn't uncover crucial impeachment evidence that he could utilize to undermine Joweed's credibility.

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And that's why I asked you, what would those witnesses have testified to?

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In other words, counsel has a situation where the government has a tape

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that is extraordinarily incriminating.

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And from what you're telling me, they knew nothing about the government's key witness other than what was on the tape and the fact that the witness had turned state's evidence.

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That's right.

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It may have come out on on direct of job.

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We that he knew Mr Mohammed because they grew up in the same village that that might have might have come out.

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I asked you what did the jury know?

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I believe your honor that that piece came out, but there the animosity that we bore against Mr Mohammed that never came out.

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And with respect to what these witnesses would have said that would have changed the outcome of trial, I think the most crucial piece of evidence that would have come out was the vow of revenge that one witness would have testified to, having personally overheard Jaweed make against Mr. Mohammed to the effect of, I will not leave you alone, even if it takes 20 years.

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And what's the name of that witness?

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That's a Mr. Melek Rezwan, and I'm referring to 514 of the record.

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Now, that evidence would have been admissible as extrinsic evidence to prove bias, which this court has observed is always admissible.

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And in particular, a case that's salient here is the case of the United States against Wynn,

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in which the court observed the previous quarrel between the witness and the party testified against readily suggests the possibility of residual hostility and the admissibility of extrinsic testimony to establish the event seems unquestioned.

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That's precisely what that's the character of the evidence that could have been elicited at trial had Mr. Venegas picked up the telephone and uncovered it.

[00:08:04] Speaker 01:
Mr. Nesbitt, you talk here today and in your briefing about the mere need to pick up the telephone.

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But in order for any testimony to assist Mr. Muhammad, it would have to be introduced in a trial.

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What's your contemplation of how any potential testimony that a public counsel identified might have been reduced to admissible evidence for this trial?

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Mr. Vanegas could have procured declarations and affidavits from those individuals.

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Could those have been introduced at trial?

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Declarations?

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If he was unable to get dispensation from the district court to physically bring the witnesses from Afghanistan that he could have located telephonically, then he could have issued letters of rocketry or submitted written testimony from these individuals.

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Those individuals would have had to voluntarily come under that scenario.

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That's true.

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They would have had to come voluntarily.

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So the proffer is that there are witnesses who would have traveled to the United States voluntarily and testified in Mr. Muhammad's defense in federal court.

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And these are witnesses for whom we don't actually have declarations in the record at this point.

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We just have counsels,

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declaration explaining the investigation that the council did Mr. Desai.

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That's that's correct.

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If Mr. Venegas had known about that evidence, he could have made that argument to the trial court and received on that basis a continuance to bring those witnesses to the United States.

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And there's not a way that those witnesses could have been compelled to give, for example, out of jurisdiction

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deposition testimony that could have been trial testimony without individuals having to come to the United States.

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That would not be either available or consistent with Mr. Mohammed's confrontation rights.

[00:10:06] Speaker 00:
I don't think those witnesses could have been compelled to come to the United States, but they were certainly willing to talk to appellate counsel and freely gave the information that's set out in the Decide Declaration with respect to Joweed and Mr. Muhammad.

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There's nothing in the record showing any efforts to actually get signed declarations from them, is there?

[00:10:24] Speaker 01:
For example, Mr. Reswan or anyone else?

[00:10:28] Speaker 00:
No, Your Honor, we did request from this court, CJA funds to hire an investigator in Afghanistan to physically track these witnesses down.

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That request was not denied, so we contacted them instead telephonically and submitted the decide declaration.

[00:10:43] Speaker 03:
I guess what we're getting at is this case was remanded for a hearing on this claim.

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And wasn't that the point at which

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affidavits, declarations, and some statement about willingness to appear and testify.

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As you know, a lot of witnesses will tell you things, but they're not going to come to court and say it under oath.

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Wouldn't that have been the time to have presented all of this evidence so the district court could have assessed the impact of this alleged deficiency?

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I think that if... In other words, we're sort of presented with the notion that if counsel had wandered around and made some phone calls, he might have come up with somebody who was willing to testify that the government's key witness had a vendetta against your client and basically would do anything to harm him.

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And therefore, had the jury heard that type of testimony,

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it would have seriously affected the credibility of the government's witness, notwithstanding the recorded tape recording.

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I think that summarizes it.

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I think that it had counsel presented that situation.

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So why should we accept these sort of hypothetical proffers at this stage when we remanded it for all of this to be fleshed out in the district court

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I think what set forth in the decide declaration is the substance of the testimony that could have been elicited from these witnesses had trial counsel contacted them and undertaken requested actually from the district court dispensation and funds to procure declarations from those individuals.

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We didn't have those funds and

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Trial counsel never uncovered it because he didn't pick up the telephone and attempt to uncover it.

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I think the prejudice here, to get back to Your Honor's original question, is that there was no alternative narrative presented to the jury other than the government's theory.

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And the narrative that Mr. Vanegas could have presented to the jury is that the person who introduced Mr. Muhammad into what ultimately became a sting operation against him

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and the only person who testified about the alleged Taliban connection had, as Your Honor mentioned, this deep-seated bias against him, and that would undermine the... What do we do about the fact that there are actually videotapes?

[00:13:28] Speaker 02:
Let's just take the drug count to begin with.

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There are videotapes of him making these drug exchanges, doing these sales, and he's on the tape talking about exactly what he's doing.

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There's plenty of powder.

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I can get you all you want.

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So even if they, even if Joey, if you erase Joey's testimony out of the transcript, then you've got him on tape doing the drug sales.

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Do you not?

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So it's not prejudicial?

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Your Honor, the tapes prove that Khan Muhammad was a drug dealer.

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But to convict him of these particular offenses, the jury had to glean very specific things from those audio tapes.

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In particular, it had to glean that Mr. Muhammad knew or intended that the drugs were to be unlawfully imported into the United States.

[00:14:15] Speaker 02:
Right, and it got him on the record saying the jihad would be formed since they sent it to America, JA120.

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Yeah.

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So they got that.

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I mean, I think that's there in his own words.

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So how would we find, I'm just talking about the drug count and put aside the narcoterrorism count.

[00:14:32] Speaker 00:
Those references, including the one that Your Honor just mentioned, are effectively planted there by Jawi.

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At the end of the day, as Your Honor mentioned,

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Mr. Muhammad is attempting to consummate this drug deal.

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And so he was unwilling to contradict or offend Joweed and was going along with whatever notions it was that Joweed planted there.

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And the jury was... But Mr. Nesbitt, there's two different challenges to Joweed.

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to Juweed's, what Juweed says.

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And I took you to be making one slightly narrower than what you're implying now.

[00:15:03] Speaker 01:
One is, Juweed is on tape in a conversation with Muhammad.

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And Juweed says certain things, and Muhammad responds.

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And separately, what it took you to be objecting to was Juweed, in court, is asked to interpret the conversation that the two of them had.

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Now, isn't it fair game to look at what Joweed and Mohammed together say on the tape and allow the jury to infer that when Joweed says something about the Americans and Mohammed concurs, that that's unaffected by what trial counsel may or may not have done in cross-examining Joweed at trial?

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I think that is affected by trial counsel's failure to elicit the true story behind Jawid and Mr. Mohammed.

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So if he had done that, he could have presented to the jury a rationale to explain why it was that Jawid was attempting to elicit this information from him, which would have led the jury – there's a reasonable chance it could have led the jury to disbelieve Jawid's testimony.

[00:16:08] Speaker 00:
And the fact that Mr. Mohammed says the magic word on tape is not dispositive in no small part, because in Afghan culture, it's a very common feature to shift alliances as the circumstances dictate.

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And that's a DEA agent named Jeff Higgins testified at trial, and he also testified at a suppression hearing in late April.

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And he made that point in the context of why Mr. Mohammed was so willing to talk to authorities after his arrest.

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So I submit that that's what he was doing in these conversations with Jawid.

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As much drugs as you need.

[00:16:40] Speaker 00:
You were going to send them to America?

[00:16:41] Speaker 00:
Sure.

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Just as long as I get my commission.

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He didn't care.

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His motivation was to get his commission.

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That's also demonstrated by the fact that he consummated the first drug deal, the opium deal, in September without having any mention of America prior to that deal.

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He had no idea where the drugs were going.

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He did that for the commission.

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And there's no indication that his motivation changed.

[00:17:01] Speaker 00:
There is an indication that Joweed started saying the magic word America, and Mr. Mohammed went along with it because that's a common feature of the culture in Afghanistan, and because he wanted to get his commission.

[00:17:12] Speaker 02:
Well, it may be a common feature, but it also means that he knew that these things were going to America.

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Jihad would be formed.

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This was his words.

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Jihad would be performed since they sent it to America.

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He's not just saying, yeah, yeah, whatever.

[00:17:29] Speaker 00:
I think there was a reasonable chance, if Mr. Venegas had presented the information I just articulated to the jury, that they would have found that Mr. Muhammad was reckless with respect to his mental state as to his knowledge of where the drugs were going.

[00:17:43] Speaker 00:
But Mr. Venegas never made that argument, never presented that information to the jury, because he wasn't equipped with that information, because he didn't do the investigation.

[00:17:53] Speaker 02:
Well, it's a knowing or reasonable cause to believe standard, so reasonable recklessness would get him, too.

[00:18:01] Speaker 00:
Well, Mr. Renegas could have pressed that and really presented the argument that the mens rea element was not met, and he was not able to do that.

[00:18:15] Speaker 03:
So were this court to agree with your position

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How would we describe the errors by the district court on remand?

[00:18:32] Speaker 00:
The district court erred in two principal ways and a variety of subsidiary ways that really flowed from those.

[00:18:38] Speaker 00:
The district court held that there were only four witnesses available to Mr. Venegas, principally on the basis that Mr. Muhammad, in a colloquy with the judge, mentioned four witnesses on the record.

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And that was in early May.

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That's wrong for a couple of reasons.

[00:18:51] Speaker 01:
It's wrong because... Can you just catalog for us what you think are the errors, and then we can probe on the ones that we... Because you briefed that fully, and I think it would be helpful to us if you would step through, as Judge Rogers has requested, precisely which things you say are errors.

[00:19:05] Speaker 00:
Sure.

[00:19:06] Speaker 00:
The two key errors were the holding that there were only four witnesses available, and that Mr. Vanegas could not have contacted them except by physically going to Afghanistan.

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And from those two key factual errors flowed a variety of other errors.

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The district court focused its entire analysis on what those four individuals, what information those four individuals could have provided.

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And that was error because the appellate counsel was readily able to contact 28 witnesses by using the telephone.

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And where Mr. Muhammad was from, this village, was an extremely small place such that one person

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Everybody knows everybody.

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And so it's the type of situation where the phone can be literally passed around the village, and it's pretty easy to communicate with multiple people in a short amount of time.

[00:19:56] Speaker 03:
So the district court asks the person you represent, you know, who are these witnesses?

[00:20:02] Speaker 03:
He names four, and that's what the district court focuses on.

[00:20:06] Speaker 03:
Why is that clear error?

[00:20:09] Speaker 00:
It's clear error because it completely ignores the three pages of names and telephone numbers.

[00:20:16] Speaker 03:
But the client, the defendant, has identified for the district court the four witnesses who should have been called or contacted according to the defendant.

[00:20:28] Speaker 03:
And presumably, he's in the best position to know at the remand hearing, I gather.

[00:20:34] Speaker 00:
An additional point is that Judge Cattelli did not purport to exhaust Mr. Muhammad's recollection and that apology that she had with him on May 2nd that's in the small supplemental sealed portion of the record.

[00:20:51] Speaker 02:
I thought those four were the ones he thought should be talked to with respect to whether he was part of the Taliban, because that's what the conversation wasn't about.

[00:20:58] Speaker 02:
He never said those were the only four witnesses to be talked about for my defense.

[00:21:01] Speaker 02:
It was just those are the four you can contact to say that I was never part of the Taliban, because that's what was going on at that May 2nd hearing.

[00:21:08] Speaker 02:
Is the government going to introduce evidence you're part of the Taliban?

[00:21:12] Speaker 00:
I think that kind of makes the point, which is the district court.

[00:21:17] Speaker 02:
He named those for a specific purpose.

[00:21:20] Speaker 02:
He didn't say that's all the witnesses that I could use for my entire defense.

[00:21:24] Speaker 02:
He was saying these are the four that can refute this specific proffer the government's now making that I'm part of the Taliban.

[00:21:31] Speaker 00:
That's right, Your Honor.

[00:21:32] Speaker 00:
And the district court focused on those four witnesses as though they were the only witnesses for any purpose that Mr. Benegas could have contacted, ignoring the three pages of discovery.

[00:21:42] Speaker 02:
Now when you're talking about what the district court did here, one thing the district court focused on, and I just don't know how this works, when you're talking about a failure to investigate, the district court said, look, the attorney here had reasonable strategic decisions for not wanting to put people on as character evidence, or didn't think the things about he's a thief would be admissible, and so had reasons that

[00:22:11] Speaker 02:
the proffered evidence, the proffered information would never be admissible as evidence in a trial.

[00:22:18] Speaker 02:
Is that a proper way to analyze a failure to investigate?

[00:22:25] Speaker 02:
Is it only harmful if the investigation would have turned up admissible evidence?

[00:22:34] Speaker 00:
No, Your Honor, that reasoning that Mr. Venegas sets forth in his affidavit is corrupt reasoning.

[00:22:41] Speaker 00:
It starts with the theory and then finishes with the facts.

[00:22:46] Speaker 00:
And the reasoning is backwards in the sense that he didn't know what the facts were, so he wasn't equipped to come up with his theories.

[00:22:54] Speaker 00:
And as he thought, well, there's only two categories of information that I might elicit from witnesses.

[00:22:59] Speaker 00:
Neither one of those will be useful to me for reasons that I now can divide.

[00:23:04] Speaker 00:
Therefore, I don't need to investigate.

[00:23:06] Speaker 03:
No, his testimony was he was concerned that if he called character witnesses, they would be demolished on cross-examination because of the tapes.

[00:23:19] Speaker 00:
Yeah, he focused on, first there were no fact witnesses available.

[00:23:24] Speaker 00:
So you didn't think about fact witnesses.

[00:23:26] Speaker 00:
He focused on character evidence and character evidence only with respect to Mr. Muhammad's propensity for truthfulness.

[00:23:32] Speaker 00:
That's out because Mr. Muhammad is not testifying.

[00:23:34] Speaker 00:
Then he focused on character evidence with respect to Mr. Muhammad's propensity for peacefulness.

[00:23:40] Speaker 00:
That's out for the reason that you're on or articulated.

[00:23:42] Speaker 03:
So is it your argument, and I'll ask the government this too, that following up on Judge Millett's question,

[00:23:49] Speaker 03:
that if the district court erred in her legal analysis of the first prong of Strickland, that she necessarily as a matter of law could not conclude that the result of the trial would have been different.

[00:24:17] Speaker 03:
And therefore, there was no Sixth Amendment violation.

[00:24:22] Speaker 00:
If the district court was wrong about prong one, then there could have been, what was the second part?

[00:24:26] Speaker 00:
There could have been no.

[00:24:28] Speaker 03:
In other words, what I thought the district court was doing, and I may be wrong, and the district court may be wrong, we remanded this for this to be fleshed out for a lot of the reasons we're asking now.

[00:24:42] Speaker 03:
And the district court, having heard what was presented during the remand,

[00:24:47] Speaker 03:
decided, based on what I've heard and what's been presented to me, even if there had been this investigation and counsel himself said he should have done certain things, it wouldn't have made any difference to the outcome of the trial.

[00:25:11] Speaker 00:
Yeah, I think the court, the district court was wrong with respect to prom one, but also with respect to prom two and principally because principally because it focused on those four witnesses that we were just discussing.

[00:25:23] Speaker 03:
Why don't we hear from the government?

[00:25:24] Speaker 00:
Thank you.

[00:25:25] Speaker 03:
And we'll give you a couple of minutes on rebuttal.

[00:25:26] Speaker 00:
Thank you.

[00:25:34] Speaker 04:
Good morning.

[00:25:34] Speaker 04:
May it please the Court, Vijay Shankar for the United States.

[00:25:38] Speaker 04:
Your Honor, if I may, I'd like to start with prejudice and jump in right where the Court was with my colleague.

[00:25:43] Speaker 04:
My colleague spoke about a reasonable chance that the jury might think X or Y about Joweed, but not to parse language.

[00:25:53] Speaker 04:
The test is whether there's a reasonable probability that the outcome of the proceedings would have been different.

[00:25:59] Speaker 04:
So, whatever the jury might have thought about Jaweed, as the court recognized, they were confronted with 11 audio and videotapes in which Mr. Muhammad directly incriminated himself in both of these offenses.

[00:26:13] Speaker 02:
Well, we're talking here about a pretty simple trial.

[00:26:19] Speaker 02:
There's a little throat clearing evidence, but mainly it's the videotapes and Jaweed.

[00:26:25] Speaker 02:
And they are

[00:26:26] Speaker 02:
intertwined.

[00:26:28] Speaker 02:
They're coming at the same time, Jawid's interpreting them, giving context for them, talking about, here's what it meant, here's what it meant, we'll use that word.

[00:26:36] Speaker 02:
So they are intertwined.

[00:26:38] Speaker 02:
And there was, crediting the Muhammad's theory at this point, evidence that would have blown Jawid's credibility to smithereens, would have blown it up.

[00:26:55] Speaker 02:
How is that not such a substantial hole being blown in the government's case that we have to think it could have had, not more likely than not, but just a reasonable probability of affecting one juror's reasonable doubt?

[00:27:17] Speaker 04:
Your Honor, I'm not poking at this word, but I do think we have to be clear on the word interpret.

[00:27:22] Speaker 04:
These tapes were interpreted by a court-appointed interpreter, translated.

[00:27:27] Speaker 04:
They were transcribed.

[00:27:29] Speaker 04:
The jury had them in front of them.

[00:27:30] Speaker 04:
So these were Muhammad's own words, and there's no dispute that this is what he said.

[00:27:35] Speaker 04:
So Joweed was not on the stand actually translating.

[00:27:37] Speaker 02:
Well, he was saying what we meant by the Red Castle.

[00:27:40] Speaker 02:
So yes, the interpreter translated red to mean red and castle to mean castle.

[00:27:46] Speaker 02:
But that doesn't mean anything to the jury.

[00:27:49] Speaker 02:
And so on that key stuff, what do we mean by the powder?

[00:27:52] Speaker 02:
That meant missiles.

[00:27:54] Speaker 02:
That meant the car.

[00:27:55] Speaker 02:
That was the real stuff.

[00:27:58] Speaker 02:
So I'm using translated in a different sense here.

[00:28:01] Speaker 02:
The communicated, conveyed, explained to the jury

[00:28:05] Speaker 02:
what those words meant in terms of violating the law.

[00:28:09] Speaker 04:
Right.

[00:28:09] Speaker 04:
Your Honor, Mr. Jaweed's testimony certainly could have been helpful to the jury under the standards required by Rule 701.

[00:28:16] Speaker 04:
That doesn't mean that if you erase, and as I think Your Honor put it yourself, if you erase that testimony from this trial, that the jury, following its instructions, as we have to assume it would have,

[00:28:28] Speaker 04:
would not have essentially been required to convict Mr. Mohammed for all of the elements of both of these offenses based on his own words.

[00:28:37] Speaker 04:
He used the words, kill Americans.

[00:28:40] Speaker 04:
He used the words, we will send the drugs to America.

[00:28:43] Speaker 04:
He used the words, infidels and jihad.

[00:28:46] Speaker 04:
We will kill Americans wherever they will be stationed.

[00:28:48] Speaker 04:
So again,

[00:28:50] Speaker 04:
My colleagues focused on the Red Castle in Dagosar as being this pivotal piece of interpretation by Joweed at the trial.

[00:28:59] Speaker 04:
That's just simply inaccurate.

[00:29:00] Speaker 04:
Mr. Mohammed said, we will kill the Americans wherever they are.

[00:29:04] Speaker 04:
That alone is enough to convict him under 968.

[00:29:07] Speaker 02:
I'm not sure it is.

[00:29:12] Speaker 01:
outline for us the elements and the best evidence that you have for each element.

[00:29:18] Speaker 01:
Let me ask you as a threshold question.

[00:29:20] Speaker 01:
I take it your position is that even assuming that counsel erred objectively and failed to provide effective assistance, it's not prejudicial.

[00:29:32] Speaker 01:
So in fact, it isn't ineffective assistance.

[00:29:35] Speaker 01:
So set aside all the issues about who was called, who wasn't called, to its credibility,

[00:29:42] Speaker 01:
And so I guess I'd like you to just outline for us your best case on that.

[00:29:46] Speaker 01:
Which elements, what's the evidence that shows out of Mohammed's mouth that each of those elements has been?

[00:29:52] Speaker 04:
Absolutely, Your Honor.

[00:29:54] Speaker 04:
If we start with 21 USC 959, this is the importation count.

[00:30:00] Speaker 04:
The first element is manufacture or distribute a controlled substance.

[00:30:04] Speaker 04:
All that the jury had to see for that element were the videotapes, exhibits 2G and 2K, and those are joint appendix 99 and 123.

[00:30:13] Speaker 04:
Those are videos of Mr. Mohammed actually delivering, distributing opium and heroin directly to Joweed and transferring the money to the seller.

[00:30:24] Speaker 04:
The second element of 959 is intending or knowing that it will be unlawfully imported into the United States.

[00:30:32] Speaker 04:
Mr. Dewey said he is sending the powder to the United States and France, mostly to American cities, and then says the opium is going abroad.

[00:30:40] Speaker 04:
And Mohammed says, good, may God turn.

[00:30:42] Speaker 02:
Wait, opium going abroad doesn't help you, right?

[00:30:45] Speaker 04:
Well, he said to American cities.

[00:30:49] Speaker 02:
What page of the J.A.

[00:30:49] Speaker 02:
are you reading from?

[00:30:50] Speaker 04:
That is 113.

[00:30:53] Speaker 04:
And Mr. Mohammed says, good, may God turn all the infidels to dead corpses.

[00:30:57] Speaker 04:
That's JA 114.

[00:30:59] Speaker 04:
Subsequently, Mr. Mohammed, not responding necessarily to Jaweed, but out of his own mouth, says, whether it is by opium or by shooting, eliminating them is our common goal.

[00:31:10] Speaker 02:
JA 114.

[00:31:11] Speaker 02:
I'm sorry.

[00:31:12] Speaker 02:
I don't see that stuff on 113.

[00:31:13] Speaker 04:
Sorry, I can grab my appendix from the desk.

[00:31:22] Speaker ?:
Sure.

[00:31:29] Speaker 02:
This might be all my fault.

[00:31:41] Speaker 02:
See, it's Joey that said on 114, this opium is going abroad.

[00:31:45] Speaker 04:
Right, Your Honor, I hope I was clear.

[00:31:48] Speaker 02:
We want it coming out of, for this argument, I thought we were going to talk about what was coming out of Mohammed's mouth himself.

[00:31:55] Speaker 04:
Right, and I can provide that, Your Honor, although I will note that when a jury is hearing a conversation between two people and one person says X and the responding person says I agree or I know, I don't think we have to assume that the jury is not understanding the nature of the conversation and the assent by the party who listened to the words.

[00:32:15] Speaker 04:
said, I agree.

[00:32:17] Speaker 02:
Unless they think that, right, but our point is that if they think the person who's saying all the things that sets the stage here is a pathological liar out too.

[00:32:25] Speaker 04:
But we don't have to, I mean, it's almost like a hearsay analysis, Your Honor.

[00:32:28] Speaker 04:
We don't have to believe that Jaweed really wants these drugs to go to America.

[00:32:31] Speaker 04:
We just have to believe that he said that and Mohammed said, I agree, I want them to go to America.

[00:32:35] Speaker 02:
Okay.

[00:32:35] Speaker 02:
All right, if you can show me the I agree.

[00:32:37] Speaker 04:
Well, sure, that's on page 113.

[00:32:40] Speaker 04:
He says, God willing, as much as he needs, we will get it for him.

[00:32:46] Speaker 04:
And then on page 116.

[00:32:50] Speaker 02:
Wait, so God willing, we'll get as much as he needs, we'll get it for him.

[00:32:53] Speaker 02:
OK, that's not him saying anything about where it's going.

[00:32:56] Speaker 04:
OK.

[00:32:57] Speaker 04:
Page 116 of the joint appendix, line 36.

[00:33:07] Speaker 04:
And this is Mr. Mohammed himself.

[00:33:10] Speaker 04:
May God eliminate them.

[00:33:11] Speaker 04:
We will eliminate them too.

[00:33:13] Speaker 04:
Whether it is by opium or shooting, this is our common goal.

[00:33:18] Speaker 02:
Sure.

[00:33:19] Speaker 02:
That could be what I'm going to do to folks in Afghanistan.

[00:33:23] Speaker 04:
But he's not going to the U.S.

[00:33:24] Speaker 04:
to shoot him.

[00:33:25] Speaker 04:
Your Honor, if we look at each individual statement in isolation, we can pick it apart in that way.

[00:33:31] Speaker 04:
It's not a natural reading of these transcripts.

[00:33:34] Speaker 04:
If you look at the surrounding words from both parties, they are clearly talking about Americans.

[00:33:38] Speaker 04:
They are clearly talking about sending drugs to American cities.

[00:33:42] Speaker 04:
I don't think the jury can be expected to look at each of these little snippets in isolation without hearing the entire conversation.

[00:33:48] Speaker 02:
Well, I think you had started with the position that the jury would have to, would virtually have to convict, was I think your statement on this record.

[00:33:55] Speaker 02:
And the question is, as I said before, once

[00:33:58] Speaker 02:
If we assume that Joweed is completely destroyed in his credibility and the jury knows he's out for revenge.

[00:34:07] Speaker 02:
And my understanding here is he, as Mr. Muhammad had, was at least at the sentencing stage, arguing a trapment.

[00:34:14] Speaker 02:
So we ask ourselves, what would have been the impact on the defense, how the defense would have argued this case, and how the jury would have understood it.

[00:34:23] Speaker 02:
And so I think it's a little bit hard.

[00:34:26] Speaker 02:
I get your point.

[00:34:27] Speaker 02:
If we have Mohammed saying the stuff directly out of his mouth, like the one quote that I had, that's one thing.

[00:34:32] Speaker 02:
Well, I do have more, Your Honor.

[00:34:32] Speaker 04:
I mean, I can point the court to JA.

[00:34:34] Speaker 02:
I assume they're in your brief.

[00:34:36] Speaker 04:
Yes, to JA 120.

[00:34:37] Speaker 04:
Jihad will be performed since they send it to America.

[00:34:40] Speaker 04:
That's his own words.

[00:34:41] Speaker 04:
So that's 959 to complete my answer to Judge Pillard's question.

[00:34:47] Speaker 04:
If we turn to 960A.

[00:34:48] Speaker 04:
959?

[00:34:48] Speaker 01:
Yes, Section, I'm sorry.

[00:34:50] Speaker 04:
Importation.

[00:34:50] Speaker 04:
I'm sorry, I'm talking about the statute, 21 U.S.C.

[00:34:54] Speaker 04:
959.

[00:34:54] Speaker 04:
Now if we turn to 21 U.S.C.

[00:34:57] Speaker 04:
968, the first element is, again, engage in conduct punishable under 841, which is the drug statute.

[00:35:04] Speaker 04:
Again, we can look directly at the videos 2G and 2K.

[00:35:08] Speaker 04:
while knowing or intending to provide anything directly or indirectly of pecuniary value.

[00:35:14] Speaker 04:
Again, I can point to specific pages, but Mr. Muhammad repeatedly talks about getting his commission.

[00:35:21] Speaker 04:
That's providing something of pecuniary value to a person or organization that has engaged or engages in terrorist activity or terrorism.

[00:35:30] Speaker 04:
He talks about

[00:35:32] Speaker 04:
Committing jihad, we can place and explode bombs and fire missiles toward the airport.

[00:35:36] Speaker 04:
These are all his own words, not Joe Weed's words.

[00:35:39] Speaker 04:
This will be our jihad.

[00:35:41] Speaker 04:
What they do is kill the Americans.

[00:35:43] Speaker 04:
The Americans are infidels, and jihad is allowed against them.

[00:35:45] Speaker 04:
Wherever they are stationed, we will fire at their base.

[00:35:49] Speaker 04:
God willing, we will take this place back from them.

[00:35:52] Speaker 04:
These are infidels, and we have to eliminate them.

[00:35:55] Speaker 02:
I have two questions about that.

[00:35:59] Speaker 02:
For the purpose of the statute, is it terrorism that occurs anywhere in the world, or does it have to be terrorism in the U.S.?

[00:36:05] Speaker 04:
It's anywhere in the world.

[00:36:07] Speaker 04:
It's terrorist activity or terrorism.

[00:36:09] Speaker 04:
The statute defines both by cross-references to other statutes.

[00:36:14] Speaker 04:
We can focus on terrorist activity.

[00:36:16] Speaker 04:
I think it's the easier one here, and either one is sufficient.

[00:36:18] Speaker 04:
Terrorist activity is defined in Section 1182, Title VIII.

[00:36:23] Speaker 04:
It means any activity which is unlawful under the laws of the place where it is committed or in the United States and it involves an explosive firearm or other weapon with intent to endanger directly or indirectly the safety of one or more individuals or to cause substantial damage to property.

[00:36:40] Speaker 02:
Those individuals include military combatants or do they have to be?

[00:36:46] Speaker 04:
No, it says one or more individuals.

[00:36:48] Speaker 04:
It's a broad statute.

[00:36:50] Speaker 04:
This court has called it a broad statute.

[00:36:51] Speaker 04:
Other courts have called it a broad statute.

[00:36:53] Speaker 02:
I'm not aware of it.

[00:36:54] Speaker 02:
So if somebody's engaged, two armies are engaged in a battle and one shoots the other, that's terrorism?

[00:37:04] Speaker 04:
Well, it would have to be unlawful.

[00:37:07] Speaker 04:
the unlawful use of this.

[00:37:09] Speaker 04:
So if it's, I guess, permitted under the laws of war, perhaps it would not be unlawful.

[00:37:13] Speaker 04:
And I think these are questions about the interpretation of the statute that are not presented to us.

[00:37:17] Speaker 02:
And then the terrorist here that was getting these funds, that was getting funded by this, is Mohammed himself?

[00:37:25] Speaker 04:
Well, we presented two theories, either one of which was sufficient for the jury to convict.

[00:37:29] Speaker 04:
It was Mohammed himself or the Taliban, which he was

[00:37:33] Speaker 04:
providing money to as he said himself in the transcripts.

[00:37:36] Speaker 02:
And when the government agreed

[00:37:39] Speaker 02:
for purposes of having the expedited trial that it was not going to put on evidence that he was a member of the Taliban that didn't implicate this?

[00:37:45] Speaker 04:
No, Your Honor, because what we agreed to not present was evidence that he had been already involved with the Taliban as a high-ranking official and had a history of involvement with the Taliban.

[00:37:56] Speaker 02:
Before all this?

[00:37:58] Speaker 04:
Right.

[00:37:58] Speaker 04:
While we did not agree that we would not present evidence that he provided something of community value to the Taliban.

[00:38:07] Speaker 04:
And so, again, I can continue with

[00:38:10] Speaker 04:
the elements of the two statutes, but I think we have satisfied all of them directly through.

[00:38:15] Speaker 01:
So the best page sites for your 960A supporting terrorist activity, the factual best page sites are?

[00:38:34] Speaker 04:
JA56.

[00:38:38] Speaker 04:
That is, what they do is kill the Americans.

[00:38:40] Speaker 04:
The Americans are infidels.

[00:38:42] Speaker 04:
Wherever they are stationed, we will fire at them.

[00:38:44] Speaker 04:
JA-57.

[00:38:45] Speaker 04:
It's really, and I hate to be this broad about it, but it's almost all of exhibit 2A.

[00:38:54] Speaker 04:
I would encourage the court to read that transcript if that's the only one the court reads.

[00:38:59] Speaker 04:
It basically satisfies all the elements of both.

[00:39:03] Speaker 04:
of both statutes.

[00:39:05] Speaker 04:
Now, I would like to turn to one point that my colleague made about the most crucial piece of information against Joweed being this vow of revenge that he supposedly made.

[00:39:16] Speaker 04:
The claim was that he made this vow of revenge, that I will get you if it takes me 20 years, to Mr. Muhammad, not just under his breath, not to someone else, to Mr. Muhammad.

[00:39:27] Speaker 04:
And yet,

[00:39:28] Speaker 04:
Mr. Mohammed never raised this with his counsel, never raised this with the court, and more importantly, throughout the transcripts, Mr. Mohammed says, you are my friend.

[00:39:40] Speaker 04:
I trust you.

[00:39:41] Speaker 04:
We are great friends.

[00:39:43] Speaker 04:
you are a flower.

[00:39:45] Speaker 04:
So the idea that the jury would have completely disbelieved Mr. Joweed based on this possible testimony by a witness who was not secured, not brought to this country, who might say

[00:40:03] Speaker 01:
That actually seems to cut the other way because Mohammed is saying, I trust you, and Jaweed is behaving in a way that unbeknownst to Mohammed is

[00:40:18] Speaker 01:
incriminating him.

[00:40:19] Speaker 01:
So, in fact, if the jury is made aware that, you know, and reminded, you know, Muhammad's been in error, obviously, in trusting Juhi.

[00:40:30] Speaker 01:
And the point is to show that what appears on the face of it to be a conversation between friends is a conversation between one man trusting another man who's reeling him in for

[00:40:43] Speaker 01:
prosecution in the United States.

[00:40:44] Speaker 04:
Your Honor, may I answer?

[00:40:45] Speaker 04:
Please.

[00:40:47] Speaker 04:
Your Honor, the point is that why would the jury believe that Mr. Muhammad was duped into trusting Joweed when the whole point of this proposed testimony was that Joweed told him, I will get you if it takes me 20 years.

[00:41:01] Speaker 04:
And then

[00:41:03] Speaker 04:
A short time later, Joweed comes to Mr. Mohammed with this plot, terrorist plot, and Mohammed doesn't say, hold on, we've had a history here, I don't want to do anything with you, I don't like you.

[00:41:14] Speaker 04:
No, he says, yes, let's do this, I trust you, you're my friend, you are a flower.

[00:41:20] Speaker 01:
I'm not, I'm not meaning to credit it or not credit it, I'm meaning to understand it, and I think the defense is

[00:41:26] Speaker 01:
perspective is that Mohammed was less skeptical of Dewey than he should have been and that counsel as Mohammed's advocate should have brought that out.

[00:41:36] Speaker 04:
I understand, but my point is as a question of prejudice, the jury would not likely have believed this line of argument.

[00:41:44] Speaker 02:
It doesn't have to be likely.

[00:41:45] Speaker 02:
It just has to be a reasonable probability.

[00:41:47] Speaker 02:
And the Supreme Court said probability doesn't actually mean more likely than that.

[00:41:51] Speaker 02:
It just has to be a reasonable prospect, a reasonable doubt in one juror's mind.

[00:41:56] Speaker 04:
Right.

[00:41:56] Speaker 04:
And I certainly think it doesn't rise to the level of reasonable doubt for one juror to think that perhaps Joweed had something against Mr. Muhammad, but Mr. Muhammad still worked with him.

[00:42:07] Speaker 02:
What we're going to think is, all right, this guy, we know he's turned state's evidence.

[00:42:11] Speaker 02:
We know he's got a vengeance against this guy.

[00:42:13] Speaker 02:
Everybody who knows him, where he's from, says he's a liar, thief, entirely untrustworthy.

[00:42:20] Speaker 02:
And this is what the government brings us.

[00:42:23] Speaker 02:
But that's not what the government brings us.

[00:42:25] Speaker 04:
That's not what the government brought the jury.

[00:42:26] Speaker 04:
The government brought the jury 11 audio and video tapes in which Mr. Mohamed said the words and made the actions himself.

[00:42:32] Speaker 03:
So on the tape is the statement that Raheed said, I'll get you if it takes me 20 years?

[00:42:41] Speaker 04:
No, no, that's nowhere.

[00:42:42] Speaker 04:
That's what this supposed witness would have said.

[00:42:48] Speaker 03:
But your brief argues that even if the jury would have had a different view of Joweed had his character and credibility been undermined through testimony,

[00:43:03] Speaker 03:
failed to show reasonable probability.

[00:43:06] Speaker 04:
Correct, Your Honor.

[00:43:09] Speaker 02:
These videos and audios were made by the DEA.

[00:43:14] Speaker 02:
Are they the ones that put the equipment on Shalij when he had these conversations?

[00:43:19] Speaker 04:
Yes.

[00:43:20] Speaker 02:
OK, so my understanding is at least at one point, Mr. Muhammad told his attorney that, yeah, that's my picture, but that's not my voice.

[00:43:26] Speaker 04:
That's right.

[00:43:27] Speaker 04:
But his voice was identified on the tapes by DEA agent Jeffrey Higgins.

[00:43:32] Speaker 04:
through standard testimony about familiarity with his voice.

[00:43:38] Speaker 04:
Thank you.

[00:43:39] Speaker 00:
A couple quick points, Your Honor.

[00:43:49] Speaker 00:
First, my more experienced colleague has pointed out there's a statute that permits foreign depositions on a showing that a witness is not available for trial.

[00:43:59] Speaker 00:
So we could have collected, Mr. Benegas could have collected that evidence had he been aware of it.

[00:44:04] Speaker 00:
With respect to prejudice, the district board applied the terrorism enhancement, which bumped Mr. Muhammad's defense level up to 12 by 12 points and his criminal history category up to a six, category six.

[00:44:18] Speaker 00:
It did not calculate the guideline range without the terrorism enhancement.

[00:44:23] Speaker 00:
And if it had done that, it would have been 10 to 12 and a half years.

[00:44:26] Speaker 00:
And so if the court is inclined to disagree with me with respect to the drug charge, then I think remand for resentencing would be appropriate with respect to the narcoterrorism charge.

[00:44:38] Speaker 00:
A word about Mr. Mohammed's supposed assent to the words that Jawid was planting for him

[00:44:47] Speaker 00:
The jury never heard about, well, let me say this.

[00:44:52] Speaker 00:
It's important, context is everything here.

[00:44:54] Speaker 00:
Mr. Mohammed was a drug dealer.

[00:44:56] Speaker 00:
He was attempting to consummate this drug transaction.

[00:44:59] Speaker 00:
And Jawid, over the course of these tapes, was his customer.

[00:45:03] Speaker 00:
He did not want to offend Jawid, and so this talk about friend and buddy I don't think is dispositive when in light of that context.

[00:45:12] Speaker 00:
Certainly it's entirely possible and a reasonable jury might have believed, had it known, that Jawid was concealing his bias over the course of the several months during which he was surreptitiously recording Mr. Mohammed.

[00:45:25] Speaker 00:
And then later, when he was on the stand testifying against him, twisting the knife with every one of his interpretations.

[00:45:32] Speaker 00:
He met the Taliban when he said, our law.

[00:45:34] Speaker 00:
He met the Taliban's law.

[00:45:36] Speaker 00:
He met the Americans.

[00:45:38] Speaker 00:
He met missiles when he said program.

[00:45:40] Speaker 00:
He met attack when he said program.

[00:45:43] Speaker 00:
So that's a narrative the jury was just never presented with, and it wasn't presented with that because Mr. Bernagas didn't uncover it.

[00:45:49] Speaker 00:
And I see my time has elapsed.

[00:45:51] Speaker 03:
Thank you, counsel, and thank you for your assistance to the court.

[00:45:55] Speaker 00:
Thank you.