Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fatumabahirtu v. United States

Court of Appeals of Columbia District

November 3, 2016

Surur Fatumabahirtu, Appellant,
United States, Appellee.

          Submitted February 3, 2015

         Appeal from the Superior Court of the District of Columbia CMD-17041-07 Criminal Division Hon. Wendell P. Gardner, Jr., Trial Judge

          Jeffrey L. Light was on the brief for appellant.

          Ronald C. Machen, United States Attorney at the time the brief was filed, with whom Elizabeth Trosman, Elizabeth H. Danello, and Edward G. Burley, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Glickman and Beckwith, Associate Judges; and Ferren, Senior Judge.


         This case was submitted to the court on the transcript of record, the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment on appeal is reversed, and the matter is remanded for further proceedings.


          Corinne Beckwith Associate Judge.

         Fatuma Bahiru Surur[1] appeals the denial of her petition for a writ of error coram nobis alleging ineffective assistance of trial counsel and the denial of her motion under the Innocence Protection Act, D.C. Code §§ 22-4131 to -4135 (2012 Repl.), to set aside her 2008 conviction for attempted possession of drug paraphernalia with intent to sell, D.C. Code §§ 48-1103 (b), 22-1803 (2012 Repl.). We conclude that Ms. Surur's trial counsel rendered constitutionally deficient performance when he failed to investigate a mistaken-identification defense. Absent this failure, there is a reasonable probability that a reasonable factfinder would have had a reasonable doubt as to whether Ms. Surur was the gas station clerk who sold paraphernalia to an undercover officer in this case on June 28, 2007, and that the factfinder would in turn have had a reasonable doubt as to whether, more than a week later when police executed a search warrant while Ms. Surur was present at the gas station, she had the intent necessary to commit the crime of attempted possession of drug paraphernalia with intent to sell. We therefore reverse the judgment of the Superior Court.

         The facts of this case are set out in Fatumabahirtu v. United States, 26 A.3d 322 (D.C. 2011), our prior opinion affirming Ms. Surur's conviction on direct appeal. Briefly, the government alleged that Ms. Surur was working as a clerk at a gas station convenience store on June 28, 2007, when an undercover officer, Jose Garcia, entered the store and asked to buy an "ink pen." The clerk, whom the officer identified at trial as Ms. Surur, responded by giving the officer an ink pen and a copper scouring pad. Knowing that these items were commonly used to make crack pipes, Officer Garcia concluded that the clerk intended to sell him drug paraphernalia, and the Metropolitan Police Department applied for and received a search warrant. Other MPD officers executed the warrant and seized several items (including more glass pens and scouring pads) on July 6, 2007, while Ms. Surur was working in the store. Ms. Surur and the store owner, Shahzad Aslam, were charged with, and ultimately convicted of, attempted possession of drug paraphernalia with intent to sell. The information charged that the offense occurred on July 6, but it is unclear from the trial record whether the trial court convicted Ms. Surur based on her conduct on this date or instead on her alleged June 28 sale. In the present appeal, we will assume that the conviction was based on the July 6 conduct, and that the trial court considered the alleged sale on June 28 to be circumstantial evidence of Ms. Surur's mens rea on July 6.[2]

         Ms. Surur's direct appeal focused primarily on whether the government presented sufficient evidence that Ms. Surur had the "specific intent to deliver or sell drug paraphernalia" and that she "knew, or reasonably should have known, that the buyer of the items would use them illegally to inject, ingest, or inhale a controlled substance." Fatumabahirtu, 26 A.3d at 325. This court held that the government's evidence did establish intent, stating that

[t]he trial court credited Officer Garcia's account of the sale, that he asked for "an ink pen" and that Ms. [Surur] gave him a glass ink pen and a metal scouring pad, even though he did not request a metal scouring pad. The trial court could reasonably infer that despite the fact that Ms. [Surur] had recently arrived in the United States, someone at the store trained her to give a buyer both a glass ink pen and a copper scouring pad when the buyer asked for an ink pen, and that she either knew or reasonably should have known that the purchase was for the purpose of taking illegal drugs.

Id. at 336.

         Now seeking post-conviction relief, Ms. Surur alleges in her motion to vacate her conviction under the Innocence Protection Act that she was not the store clerk who sold Officer Garcia the pen and metal pad on June 28, 2007. Her petition for a writ of error coram nobis contends, in relevant part, that her trial counsel was constitutionally ineffective for failing to conduct a reasonable investigation. The petition contends that such an investigation would have yielded information to impeach Officer Garcia's account of the sale, including (among other things) his assertion that Ms. Surur was the clerk who sold him the pen and scouring pad.

         At the hearing on her motion and petition, Ms. Surur further alleged that counsel was ineffective for failing to reasonably investigate whether she was the store clerk who encountered Officer Garcia on June 28 and, accordingly, for failing to raise a mistaken-identification defense at trial.[3] In that regard, Ms. Surur's trial counsel testified that he did not investigate facts relevant to a misidentification defense-he did not "undertak[e] anything specific in terms of trying to pinpoint whether or not Miss Surur was at the gas station the date of the alleged sale, " for example, or determine what clothes Ms. Surur wore to work or how her physical characteristics compared to Officer Garcia's description of the clerk he claimed sold him the paraphernalia. Specifically, he did not ascertain that Ms. Surur was 5'3" and weighed 160 pounds (as compared to the woman the officer's report described as 5'6" and 170 pounds), or that Ms. Surur did not own black pants or a blue and white headscarf, which are the clothes the officer described the clerk as wearing on June 28. Forgoing a mistaken-identity defense was not a strategic decision, counsel testified: He "just . . . went with a different defense"-namely, a defense in which he attacked the government's evidence that Ms. Surur knew or had reason to know the items were drug paraphernalia. He testified that he did not recall "[i]f it was a matter of sort of discarding other defenses or just going with the one that immediately jumped out to me as being the best. I don't recall how that process worked. But I know that I did not pursue a mistaken ID defense." Counsel agreed that a mistaken-identification defense was not incompatible with the defense he pursued at trial, and he testified that Ms. Surur's height and clothing might have been relevant where the person "the government is alleging was arrested and [sic] somehow was not the same person, " but that that "was not our defense." Some attorneys, he noted, "would challenge every piece of testimony or evidence that the government offers, " but he "tend[ed] typically to take a different view of that and that you sort of focus on what the theory of your case is."

         Ms. Surur testified at the hearing that in June of 2007, she was working approximately two days a week at the gas station, that she did not own black pants and instead wore blue jeans to work, and that she did not own, or wear to work, a blue and white headscarf. Her passport indicated that she was 5'3".[4] Hayat Ousman, another employee of the gas station, testified that in June of 2007, she worked at the station seven days a week, that she owned black pants and blue and white headscarves, and that she sometimes wore them to work. The prosecutor stipulated that Ms. Ousman was 5'7" and weighed 170 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.