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United States v. Mohammed

United States District Court, District of Columbia

July 22, 2016




         On May 15, 2008, Khan Mohammed (“Mohammed”) was convicted by a jury in this Court of one count of distributing one kilogram or more of heroin intending or knowing that it will be unlawfully imported into the United States (Count I) and one count of distributing a controlled substance knowing or intending to provide anything of pecuniary value to a person or organization that has engaged in terrorism or terrorist activity (Count II). This matter is before the Court on remand from the United States Court of Appeals for the District of Columbia Circuit to hold an evidentiary hearing on Mohammed’s ineffective assistance of counsel claim that was raised on direct appeal. See United States v. Mohammed, 693 F.3d 192, 202-05 (D.C. Cir. 2012).

         After the issue was remanded to this Court, Mohammed filed his [118] Motion to Vacate His Conviction, or in the Alternative for Resentencing, Based on Ineffective Assistance of Counsel, and his [137] Motion for Hearing on Pending Motion to Vacate Conviction or in the Alternative for Resentencing. The government filed a [161] Motion to Re-Characterize Defendant’s March 1, 2013 filing As a Motion Pursuant to 28 U.S.C. § 2255. All of the pending motions are fully briefed. Pursuant to the Court’s Orders, the government filed affidavits from Mohammed’s trial counsel, Carlos J. Vanegas and Danielle C. Jahn, and the Court held an evidentiary hearing on December 3, 2015, regarding Mohammed’s ineffective assistance of counsel claim.

         Upon consideration of the parties’ submissions, [1] the evidence provided during the evidentiary hearing, the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Mohammed’s conviction and sentence at this time. For the reasons described herein, the Court shall DENY Mohammed’s [118] Motion to Vacate His Conviction, or in the Alternative for Resentencing, Based on Ineffective Assistance of Counsel, DENY AS MOOT Mohammed’s [137] Motion for Hearing on Pending Motion to Vacate Conviction or in the Alternative for Resentencing, and DENY the Government’s [161] Motion to Re-Characterize Defendant’s March 1, 2013 filing As a Motion Pursuant to 28 U.S.C. § 2255.

         I. BACKGROUND

         This matter comes before the Court on remand from the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), which summarized the factual scenario leading to the indictment in the instant action:

While living in Pakistan in 2006, a man named Jaweed, who hailed from the village of Geratak in Afghanistan’s Nangarhar province, fell in with Abdul Rahman, a former Taliban official for the Jalalabad province of Afghanistan also living in Pakistan. Rahman was plotting an attack on the Jalalabad airfield, a strategic NATO airbase in eastern Afghanistan, and instructed Jaweed to return to Geratak and contact a fellow villager, Khan Mohammed, who was also involved in the plot and needed help. Jaweed did as he was told and visited Mohammed, who brought him into the planning of the attack, directing him to obtain the missiles that would be used in the strike.
But Jaweed soon turned against Rahman and Mohammed and disclosed the plot to Afghan authorities. The Afghan police persuaded Jaweed to continue his role in the plot, but to become their informant. When primary responsibility for the investigation was turned over to agents of the U.S. Drug Enforcement Administration (DEA) deployed in Nangarhar, Jaweed worked with them as well. The DEA agents wired Jaweed and recorded several of his conversations with Mohammed in August and September 2006.
In the first of those conversations, Mohammed discussed with Jaweed details of the attack on the airfield and claimed that he had not only the same purpose as Rahman, but the same authority. Hearing his plans and his boast, the DEA decided to arrest Mohammed soon after Jaweed had given him the missiles. Concern about losing control of the missiles once they were in Mohammed’s hands, however, led to a different strategy. The DEA would arrest Mohammed for narcotics trafficking. Following this plan, Jaweed told Mohammed he had a friend looking for opium. Mohammed replied that he knew a source who could supply as much as Jaweed’s friend needed. Jaweed and Mohammed met three more times to iron out details, such as the price for the opium and Mohammed’s commission. These discussions also included plans for the attack on the airfield. For example, during one of the meetings Mohammed said they needed a car to secure the missiles. See Government Trial Ex. 2C (Mohammed, stating that they would “tightly and firmly load [the missiles] in our car”). Eleven days later, Mohammed announced at another meeting that he would use the profits from the drug sale to buy a car, which could help carry out more drug deals.
The opium deal went off without a hitch. Jaweed accompanied Mohammed to a local bazaar where Mohammed negotiated the sale with his source. The next day, Jaweed accompanied Mohammed to the seller’s home and secretly videotaped Mohammed inspecting, paying for, and taking away the opium he then sold to Jaweed. Pleased with the results, the DEA agents told Jaweed to orchestrate another sale, this time for heroin. When Jaweed raised the idea, Mohammed readily agreed and acquired almost two kilograms of heroin, which he then sold to Jaweed. Mohammed was enthused by the prospect of how much money their newly formed drug business could make. When Jaweed told Mohammed that his friend would send the opium and heroin to the United States, Mohammed declared, “Good, may God turn all the infidels to dead-corpses.” Government Trial Ex. 2H. Their “common goal, ” Mohammed told Jaweed, was to eliminate the “infidels” either “by opium or by shooting.” Id.

United States v. Mohammed, 693 F.3d 192, 195-96 (D.C. Cir. 2012). On December 13, 2006, a federal grand jury indicted Defendant Khan Mohammed for distributing one kilogram or more of heroin intending or knowing that it will be unlawfully imported into the United States in violation of 21 U.S.C. §§ 959(a)(1)-(2), 960(b)(1)(A) and 18 U.S.C. § 2 (“Count I”). Indictment (Dec. 13, 2006), ECF No. [1]. Mohammed was arrested and extradited to the United States on November 5, 2007. On January 23, 2008, the government filed a Superseding Indictment adding a second count of distributing a controlled substance knowing or intending to provide anything of pecuniary value to a person and organization that has engaged or engages in terrorism or terrorist activity in violation of 21 U.S.C. § 841(a) (“narcoterrorism charge”). Superseding Indictment (Jan. 23, 2008), ECF No. [18].

         The matter proceeded to trial in this Court, and on May 15, 2008, a jury convicted Mohammed on both counts of the indictment. See Verdict Form, ECF No. [62]. On December 22, 2008, this Court sentenced Mohammed to a term of life imprisonment on Counts I and II to run concurrently. Judgment in a Crim. Case at 3, ECF No. [84]. Mohammed currently is serving his sentence.

         Mohammed filed a timely appeal and, on September 4, 2012, the D.C. Circuit upheld Mohammed’s conviction in a published opinion. See generally Mohammed, 693 F.3d 192. However, the D.C. Circuit also remanded the matter to this Court to hold an evidentiary hearing on the claim of ineffective assistance of counsel raised by Mohammed on appeal. Id. at 195.

         On direct appeal, Mohammed argued that his trial counsel was ineffective for failing to adequately investigate certain evidence that Mohammed asserts would have strengthened his defense. Specifically, Mohammed argued that despite identifying potential defense witnesses to his trial counsel, his counsel failed to contact these potential witnesses from Mohammed’s village in Afghanistan whom Mohammed claimed could bolster his character and impugn Jaweed’s character. See Id . at 202. Ultimately, the D.C. Circuit found that Mohammed raised a colorable claim for ineffective assistance of counsel and the trial record did not conclusively show whether Mohammed was entitled to relief. Id. at 204. As such, the D.C. Circuit remanded the ineffective assistance of counsel claim to this Court to hold an evidentiary hearing and “test [Mohammed’s] allegations further.” Id.

         After the matter was remanded to this Court, Mohammed filed his Motion to Vacate his Conviction, or in the Alternative for Resentencing which currently is pending before the Court. Mohammed’s motion is premised on ineffective assistance of counsel claims related to his trial counsel, Carlos J. Vanegas and Danielle C. Jahn. Specifically, Mohammed claims that his trial counsel rendered him ineffective assistance by: (1) failing to conduct a proper pre-trial investigation; (2) failing to challenge a government witness’s “interpretations” of taped evidence that was introduced at trial; and (3) failing to raise a duress argument at the time of sentencing.


         A defendant claiming ineffective assistance of counsel must show (1) “that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, ” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011). “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions . . . . [I]nquiry into counsel’s conversations with the defendant may be critical to a proper assessment of . . . counsel’s other litigation decisions.” Strickland, 466 U.S. at 691. In evaluating ineffective assistance of counsel claims, the Court must give consideration to “counsel’s overall performance, ” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, ” Strickland, 466 U.S. at 689. Moreover, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.


         Mohammed raises three ineffective assistance of counsel claims, alleging his trial counsel: (1) failed to conduct a proper pre-trial investigation; (2) failed to challenge a government witness’s “interpretations” of taped evidence that was introduced at trial; and (3) failed to raise a duress argument at the time of sentencing. The Court shall address each claim in turn.

         The Court notes that Mohammed was represented at trial by both Vanegas and Jahn. However, Jahn first entered her appearance in this matter on April 25, 2008, less than two weeks before jury selection commenced. She also testified that she first met with Mohammed approximately one week prior to entering her appearance and never met with Mohammed without Vanegas present. Tr. 63:9-12, 64:15-16 (Dec. 3, 2015). Jahn’s role in this matter was as the junior attorney who was tasked with assisting with trial. Id. 64:15-16. In light of Jahn’s limited role in Mohammed’s representation, the Court focuses its discussion on Vanegas’ representation of Mohammed.

         A. Pretrial Investigation of Defense Witnesses

         Mohammed first alleges that his trial counsel failed to conduct any pretrial investigation of witnesses who could have impeached the testimony of government witness Jaweed and Jaweed’s interpretations of the recordings admitted into evidence at trial. Def.’s Mot. to Vacate at 11, ECF No. [118]. As the D.C. Circuit explained, “[t]he key to Mohammed’s claim is whether his attorney’s less-than-thorough pre-trial investigation was supported by ‘reasonable professional judgments.’” Mohammed, 693 F.3d at 203. The D.C. Circuit provided that it remanded the matter to this Court “to give fuller context to the decisions counsel made, such as what Mohammed told his attorney while preparing his defense or what his attorney may have uncovered himself during trial preparation.” Id.

         It is undisputed that Mohammed requested that Vanegas contact witnesses in Afghanistan prior to trial. Tr. 26:6-15, 81:9-11, 38:1-5, 56:12-16, 119:6-13 (Dec. 3, 2015). There are three specific discussions regarding defense witnesses in Afghanistan that took place on the record prior to trial. When Vanegas made his first request for a continuance which was granted, Vanegas alluded to and spoke in general terms about exploring testimony from witnesses in Afghanistan. At the second request for a continuance, four specific names were discussed. Ultimately, at the evidentiary hearing post trial, Mohammed testified that he provided Vanegas with the names of three different individuals during trial preparation. In addition to these discussions, the pre-trial record also demonstrates that Vanegas explored Mohammed’s allegation that Jaweed had a conviction for robbery or theft, and on April 22, 2008, Vanegas noted that Jaweed may have a vendetta against Mohammed due to the results of an election in their village. At the evidentiary hearing, Mohammed and Vanegas provided conflicting accounts as to what testimony Mohammed informed Vanegas that the witnesses might provide. Given that this Court is tasked with evaluating the reasonableness of trial counsel’s performance in light of the information before him at that time, the Court shall discuss the context in which these decisions were made and Vanegas’ rationale for his decisions.

         First, the Court shall discuss the information in the record regarding Mohammed’s request that Vanegas contact potential witnesses in Afghanistan leading up to trial. Second, the Court shall discuss new information gleaned while this issue has been on remand, from a declaration submitted by Mohammed’s appellate counsel, from the declarations submitted by Mohammed’s trial counsel, and from the testimony given during the evidentiary hearing held in this matter. Upon consideration of the record and the evidence before it, and for the reasons described herein, the Court has determined that Vanegas’ pre-trial investigation was supported by reasonable professional judgments and that Mohammed has failed to establish that he was prejudiced by Vanegas’ failure to contact the witnesses whom he identified prior to trial.

         1. Pre-Trial Record Reflects Mohammed’s Request for Defense Witnesses from Afghanistan

         On November 5, 2007, this matter came before the court for a return on a bench warrant and an arraignment. At that time, Magistrate Judge Alan Kay appointed Vanegas to represent Mohammed in this proceeding. During the early phases of Vanegas’ representation of Mohammed, Mohammed participated in two unsuccessful debriefings with the government. Tr. 11:21-24, 13:1-10 (Dec 3, 2015). Mohammed then rejected a plea offer extended to him by the government. Tr. 26:14-22 (Nov. 20, 2007); Tr. 4:3-18, 5:14-25, 6:18-7:3 (Jan. 29, 2008); Tr. 4:18-8:9, 21:2-23:16 (Feb. 4, 2008); Tr. 9:14-10:10 (Feb. 25, 2008); Tr. 15:3-16:16 (Mar. 20, 2008); Tr. 48:20-50:14, 50:23-82:9 (Apr. 22, 2008); Tr. 13:3-16 (Dec. 3, 2015). On January 23, 2008, the government, after prosecutors traveled to Afghanistan, filed a superseding indictment that added the narcoterrorism charge. Tr. 13:70-10; see also Superseding Indictment (Jan. 23, 2008).

         a. Request for a Continuance of February 25, 2008, Trial Date

         The matter was originally set for trial on February 25, 2008. Min. Order (Dec. 13, 2007). However, on February 4, 2008, Vanegas, after consulting with Mohammed and with Mohammed’s express agreement, requested a three-month continuance of the trial date. Tr. 32:10-13, 35:4-12 (Feb. 4, 2008). The basis for the request was to allow more time for Vanegas and Mohammed to systematically review transcripts provided as part of discovery with the assistance of a Pashto interpreter, to tend to some health issues related to Mohammed, to research and respond to Mohammed’s legal questions regarding the applicability of United States’ laws to foreign nationals for conduct taking place outside of the United States, and to discuss the possibility of an Alford plea. Id. 29:12-31:12. At that hearing, Vanegas explained that he had invested a significant amount of time in trying to resolve the case short of trial but at that point he felt it prudent to focus on trial preparation. Id. 29:21-30:4, 31:7-12. Based on this request, the Court continued the trial until May 5, 2008.[2] Id. 43:7-12. As such, Mohammed’s request for witnesses was not the basis for the first request for a continuance as this issue had not yet been raised by Mohammed.

         b. February 25, 2008, Status Hearing

         At the next status hearing, held on February 25, 2008, Vanegas expressly brought up the issue of potentially bringing defense witnesses to the United States. Vanegas explained:

[T]he only new issue that I see that has arisen is the issue with respect to witnesses that Mr. Mohammed would like to be at his trial. And so I will look into the practical issues and the resources available to try to find those witnesses and to bring them to the United States, and then the legal support on behalf of bringing those witnesses.

Tr. 14:1-7 (Feb. 25, 2008). During that hearing, Vanegas also indicated that he was considering filing some type of motion with respect to these witnesses, noting that “it presents 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, ” as it involved contacting witnesses in a war zone. Id. 9:4-7. Vanegas stated that he planned to speak with the prosecutor and the Federal Public Defender for the District of Columbia as he would likely need the government’s and/or the Court’s assistance in obtaining defense witnesses and needed to explore the legal basis for making such a request. Id. 9:8-13, 24:12-19. As such, the record reflects that Mohammed had raised this issue to Vanegas at least as early as February 25, 2008, but not earlier. However, there are no specifics in the record at that time regarding what information Mohammed indicated to Vanegas that the potential witnesses might provide and, importantly, that has not been clarified post-trial. Even post-trial, the record is devoid as to what, if anything, Mohammed told Vanegas these witnesses would state. All that is in the record is that Mohammed wanted witnesses from Afghanistan.

         c. Government’s Motion in Limine and Mohammed’s Request for Lewis Check

         On February 22, 2008, shortly before that status hearing, the government filed a Motion in Limine to Preclude Improper Impeachment with Extrinsic Evidence. See generally Govt.’s Mot. in Limine to Preclude Improper Impeachment with Extrinsic Evid. (“Govt.’s Mot. in Limine”), ECF No. [21]. In the motion, the government asserted that while being held in military custody pending extradition, Mohammed made claims in an attempt to ascribe a motive for Jaweed to fabricate evidence or lie, or otherwise to impugn Jaweed’s credibility. For example, the government indicated that Mohammed stated that Jaweed “had been convicted of theft, had spent several months in jail, and was set to serve an 18 year sentence when he was released after people from his village vouched for him.” Id. at 2. The government moved the Court to exclude any allegation of theft against Jaweed at trial pursuant to Federal Rule of Evidence 608(b). In its motion, the government indicated that Jaweed denied these accusations, stating that he was accused of theft some years prior, but that he was not arrested, incarcerated, or convicted and that another man ultimately was found to have committed the offense. Id. at 2 n.2.

         On March 10, 2008, Mohammed filed an opposition to the government’s motion and requested that the government conduct a Lewis criminal background check on Jaweed.[3] In the opposition, Vanegas represented:

Undersigned counsel has a good faith belief that the confidential source was charged and convicted sometime during the summer or autumn of 2005. The charge and conviction were lodged and archived in the Prosecutor’s Office in the city of Jalalabad in Nangarhar Province, Afghanistan. Jalalabad is 90 miles from Kabul, the capital of Afghanistan, and accessible to United States law enforcement and military personnel who can properly investigate [Jaweed’s] conviction.

Def.’s Opp’n to Govt.’s Mot. to Preclude Improper Impeachment and Request for a Lewis Crim.

         Background Check of Confid. Source (“Def.’s Opp’n to Mot. in Limine”) at 2, ECF No. [27]. The government filed a reply to its motion and addressed Mohammed’s request that the government conduct a Lewis check on Jaweed. In its response, the government reported:

On Friday, March 14, 2008, DEA agents in Kabul, Afghanistan were tasked with contacting Afghan authorities in Jalalabad, Nangarhar Province, to determine what, if any, criminal record the witness in question had, including arrests, prosecutions or convictions. On April 3, 2008, the DEA reported back that a request for that information had been made through Afghan authorities, who reported that according to Colonel Asif Khan, Chief of Afghanistan’s Counter Narcotics Police in Nangarhar Province, a review of the province’s records was negative for any criminal history.

Govt.’s Resp. to Def.’s Opp’n to Govt.’s Mot. in Limine & His Request for a Lewis Check (“Govt.’s Resp. to Mot. in Limine”) at 2, ECF No. [32].

         On April 22, 2008, during a status hearing, the parties discussed the government’s motion in limine in light of the results of the Lewis check. Vanegas noted that during the audio recordings that the government sought to introduce during trial, Jaweed mentioned on two separate occasions that he had previously been accused with a lawsuit. Tr. 5:24-6:9 (Apr. 22, 2008). Notably, in the presence of Mohammed, the Court specifically asked Vanegas whether Mohammed was at all involved in the suit to which Vanegas answered, “It does not involve my client.” Id. 6:10:13. Vanegas mentioned the possibility that he might present evidence of Jaweed’s bias towards Mohammed. Vanegas explained:

[W]ith respect to a personal vendetta that he may have against Mr. Mohammed, is that Mr. Mohammed was elected a tribal chief in the area in which both of these gentlemen are from. They’ve known each other since they were children.
And as a result of an election regarding Mr. Mohammed being elected tribal chief, there is some issues arose from the fact that the confidential informant was supporting Mr. Mohammed’s opponent for the position of tribal chief.

Id. 7:7-16. The Court noted that there was no impediment to Vanegas exploring Jaweed’s potential motivations for testifying against Mohammed. However, specifically with respect to the issue of Jaweed’s prior legal history, the Court indicated that this appeared to be separate from the bias issue because Mohammed was not involved in the lawsuit. The Court emphasized the point that Mohammed’s direct involvement in the lawsuit would make a difference in terms of the Court’s analysis of the admissibility of this evidence. Indeed, the Court indicated, “[I]f it involved Mr. Mohammed, it might be a different issue, even if he didn’t get actually arrested or convicted, but it sounds like he may have been accused by somebody but it never went anywhere because there’s no arrests and no convictions.” Id. 8:13-18. The Court also noted, “But I think to present it as bias, under the rubric of bias you have to show there’s some ill feeling towards him because Mr. Mohammed is involved in this accusation in some way, or that the prosecution or whoever is in the prosecution’s shoes would in some way be helpful with this accusation since he doesn’t have anything pending in Afghanistan.” Id. 8:25-9:6. As such, as of April 22, 2008, it appears Mohammed had raised with Vanegas that Jaweed may be biased against him based on the fact that Mohammed won an election over a candidate whom Jaweed supported, but Mohammed had not indicated to Vanegas that he was in any way involved in any lawsuit against Jaweed. Moreover, in Mohammed’s presence, the Court stressed that if Mohammed was involved in any way with these accusations even if there was no formal arrest or conviction, it would present a different issue for trial purposes.

         After reviewing the information provided by the parties, the Court required the government to provide the Court with a transcript of Jaweed’s statements regarding the theft allegation in question which clearly did not include an admission of this conduct. The Court also directed defense counsel to file by April 25, 2008, an opposition setting forth a legal basis for permitting a line of inquiry into the allegations of past criminal conduct given the result of the Lewis check indicating that Jaweed did not have a criminal history.[4] Min. Order (Apr. 22, 2008). At the next hearing on April 28, 2008, the Court noted that Vanegas had notified chambers that he would not be filing an opposition to the government’s motion in limine based on the results of the Lewis check and, accordingly, that he would not pursue this line of questioning at trial. Min. Order (Apr. 28. 2008); Tr. 4:19-5:1 (Apr. 28, 2008). As such, the Court issued an order granting the government’s motion in limine in light of the results of the Lewis check and the fact that the motion was no longer opposed by Mohammed.

         The Court notes that Mohammed has now raised post-trial claims that there would be evidence of Jaweed’s criminal conduct involving this alleged theft/robbery, even though he abandoned on the record his request that this allegation of a conviction for theft be used prior to trial. Moreover, Mohammed also now alleges that he had a role in the resolution of the robbery/theft accusation because he served as a mediator during the jirga addressing that accusation, contrary to several representations on the record that Mohammed was not involved.

         d. Mohammed’s Request for a Continuance of May 2, 2008, Trial Date

         On May 1, 2008, Mohammed filed a Motion to Continue Trial, asserting the government had provided discovery on April 29, 2008, that set forth a new allegation that Mohammed had a significant role in the Taliban organization. Def.’s Mot. to Cont. Trial at 3, ECF No. [47]. The basis of this allegation was that Jaweed was contacted by two leaders of the Taliban while in Pakistan and instructed that Mohammed was their point of contact in Afghanistan. Id. While the names of the individuals were previously provided to defense counsel, Vanegas asserted that the government had not disclosed that these people were Taliban leaders and, as such, Vanegas was not aware that the government would seek to link Taliban leaders in Pakistan to the crimes charged against Mohammed. Id. at 4. That same day, the Court held a conference call with the parties to determine whether or not to bring the prospective jurors in on the following day to begin jury selection. During a conference call, Vanegas indicated that he was requesting a three-month continuance in order to follow up, make requests, and investigate the issues that were not previously raised by the government. Tr. 4:1-5 (May 1, 2008). Ultimately, the Court determined that it would not call the jury for the following day in order to hold a more complete discussion on the record in Mohammed’s presence regarding the request to continue the trial with the assistance of an interpreter.

         Subsequently, at the status hearing held on May 2, 2008, the parties discussed Mohammed’s request for a continuance at length. In the open courtroom, the Court and both parties discussed the request for a continuance of the trial. In part, Vanegas indicated that he was seeking a continuance in order to obtain an expert and a rebuttal witness to testify that under the administration in Afghanistan at that time, there were ...

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