Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 03, 2019

Khan: No Per Se Deficient Performance by Refusing Court Instruction to Obtain Foreign Approval for Video Deposition

In Khan v. United States, No. 18-12629 (July 3, 2019) (William Pryor, Newsom, Branch), the Court affirmed the denial of a federal defendant's ineffective assistance of counse claim.

The attorney disregarded a court instruction to obtain the official consent of the Pakistani government to conduct video depositions on its soil.  The Court first rejected the movant's argument that failure to follow a court order constitutes deficient performance per se, rejecting any such bright-line rule.  Here, the Court found that the attorney made a reasonable strategic decision based on all of the circumstances, as he made significant efforts to obtain the depositions, the court did not impose an affirmative duty on the lawyer, and in any event that duty would be owed to the court, not the client.  The Court also found that the movant failed to prove prejudice from any deficient performance because there is no indication that the Pakistani government would have granted the lawyer's request, and the evidence of guilt was overwhelming.