DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

D.C. Circuit Upholds Conviction for International Child Kidnapping

In 2001, Khaled Shabban had a child with Araceli Hernandez. The two didn't live together, so they stipulated to a custody agreement in which Hernandez would have physical custody but Shabban would be allowed unsupervised visits. In 2004, Shabban told Hernandez he was taking their son -- then three years old -- to an amusement park.

Except that he didn't take the kid to an amusement park; he took the kid to Egypt, where Shabban was from. This resulted, almost two years later, in Shabban being arrested and charged with international parental kidnapping.

Spirited Away

Shabban appealed on the ground of ineffective assistance of counsel, which is, of course, very hard to prove, and of course, the D.C. Circuit Court affirmed his conviction. Nevertheless, Shabban claimed his trial attorney, Steven McCool, should have interviewed a social worker and teacher at Shabban's son's school. Shabban wanted to take his son back to Egypt because the son was having trouble speaking (he thought it would be better for the child to speak only Arabic at home rather than Arabic, English, and Spanish). According to Shabban, the social worker and teacher would have testified that the son had speech problems.

Maybe. An investigator sent to the school couldn't find the social worker (because Shabban hadn't provided the social worker's name), but the investigator did find a teacher, although that teacher was never presented as a witness. According to McCool, the teacher would have testified that the son did have language difficulties, but not to the degree that he would have to be taken to Egypt.

Failure on Both Prongs

IAC, of course, has two prongs. First, the attorney's performance must have been constitutionally deficient, and second, but for counsel's errors, there's a "reasonable probability" the outcome would have been different.

Strategic choices that a defendant disagrees with generally fall outside the scope of an IAC claim -- and that's what Shabban is contesting here. While Shabban claimed the teacher would have provided favorable evidence, that's true -- in so far as she would have testified that the son had a speech problem.

But, as McCool pointed out, the good stuff ends there. The teacher would have then gone on to hurt Shabban's case by saying there was no need to take the child to Egypt to work on his language problems, which is really the crux of the whole case. "We have no trouble concluding that McCool's decision not to call the teacher to testify was well within the 'wide range of reasonable professional assistance,'" the court said.

Shabban also said that McCool should have called the social worker to testify, but remember that he never provided the social worker's name. "We find it reasonable that McCool 'would not have asked [an investigator] to identify a social worker that [he] was not aware of,'" the court said.

And even if those witnesses could have been found and produced favorable testimony, that really would have changed nothing. "The statute requires only an 'intent to obstruct' parental rights," the court said, and whether or not the kid actually had language problems, and taking the kid to Egypt might have helped, Shabban still took the child away without Hernandez's permission.

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