United States v. Shane Browne

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2019 Decided March 27, 2020

No. 18-3073

UNITED STATES OF AMERICA,

APPELLEE

v.

SHANE BROWNE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cr-00241-1)

Michael F. Smith argued the cause for appellant. With him

on the brief was Max F. Maccoby.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jessie K. Liu,

U.S. Attorney, and Elizabeth Trosman, John P. Mannarino,

and Stephen J. Gripkey, Assistant U.S. Attorneys.

Before: HENDERSON and PILLARD, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Appellant, Shane

Browne, was convicted of kidnapping in violation of 18 U.S.C.

§ 1201(a)(1) and unlawful possession with intent to distribute

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D).

Browne now appeals that conviction, arguing that the offenses

were improperly joined and challenging the district court’s

failure to sua sponte sever the kidnapping charges from the

drug charges and order separate trials. He also challenges the

district court’s failure to sua sponte exclude certain evidence

and argues that the district court erred in refusing a specific jury

instruction and relying on acquitted and unlitigated conduct at

sentencing. Finally, Browne raises a variety of claims that his

trial attorneys were ineffective, violating his Sixth Amendment

right to counsel.

For the following reasons, we affirm the judgment of the

district court. Consistent with our usual practice, we remand

the ineffective assistance of counsel claims to the district court

to assess them in the first instance.

I. BACKGROUND

According to the evidence at trial, on December 11, 2017,

Browne ordered a Lyft from his apartment in Washington,

D.C., to a motel in Aberdeen, Maryland. Before the ride began,

Browne called the Lyft driver, Ulises Flores, to inquire whether

he would be willing to complete a roundtrip. Flores agreed, but

Browne never updated the trip in the Lyft app. During the

drive, Flores overheard Browne on a phone call discussing

email encryption and another person who was prepared to take

over his “business” if anything should happen to him. J.A.

3

132–33. Flores later testified that Browne smelled like

marijuana when he entered the car.

Once in Aberdeen, Browne directed Flores to a

McDonald’s parking lot near the original destination. Because

Browne never updated the trip in the Lyft app to reflect the

roundtrip, Flores ended the trip when they arrived at the

McDonald’s. After Browne got out of the car, Flores remained

in the McDonald’s parking lot for over seventeen minutes.

During that time, he got coffee, visited a restroom, cleaned his

car, and called his wife. Flores initially told police that Browne

had asked him to wait for five to ten minutes, but he testified at

trial that Browne did not ask him to wait at all.

Eventually, Browne returned to Flores’s car and placed a

suitcase in the trunk. Flores got out of the car to confront

Browne, but Browne shook Flores’s hand and asked Flores to

drive him home. Flores refused, but Browne entered the car

anyway and Flores followed. Flores testified that, once in the

car, Browne put a gun to his head and told him to drive back to

Browne’s apartment in D.C.

Flores recounted that Browne kept the gun next to his head

for the entire drive. During this time, he again overheard

Browne on his phone, this time letting someone know that

“Ulises” was driving him home. J.A. 162–63. Although he did

not use the Lyft app on the return trip, Flores was able to email

Lyft while Browne was distracted and ask someone to call the

police because he was “in trouble.” J.A. 164–65. When they

arrived back at Browne’s apartment, Browne gave Flores $100

and retrieved the suitcase.

Flores drove several blocks and then called Lyft again.

While on hold with Lyft, he connected to OnStar and described

the situation. The OnStar operator offered to call 911. Flores

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initially refused but after a few minutes accepted the offer and

spoke with police. He explained the incident and stated that he

thought Browne was a drug dealer.

Later that evening, police arrested Browne at his

apartment. The officers noticed a strong smell of marijuana

coming from Browne’s apartment, and Browne told them that

he had been smoking marijuana. The police did not

immediately search Browne’s apartment, but did search other

areas of the apartment building looking for a gun or

ammunition.

The next day, after gathering more information and

interrogating Browne, officers obtained and executed a search

warrant for Browne’s apartment. In the apartment, police

found a money counter, a heat sealer, drug paraphernalia, more

than $35,000 in cash, and seven suitcases and other

containers—some of which were filled with heat-sealed bags

containing marijuana. In total, the police recovered

approximately 78 pounds of marijuana in Browne’s apartment,

but never found a gun in the apartment or the surrounding

areas.

On February 27, 2018, the government filed a superseding

indictment, charging Browne with kidnapping in violation of

18 U.S.C. § 1201(a); using, carrying, possessing, and

brandishing a firearm during a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A)(ii); unlawful possession with intent

to distribute marijuana in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(D); kidnapping while armed in violation of D.C. Code

§§ 22-2001, 4502; two counts of possession of a firearm during

a crime of violence or dangerous offense in violation of D.C.

Code § 22-4505(b); and assault with a dangerous weapon in

violation of D.C. Code § 22-402. After a jury trial, Browne

was convicted of federal kidnapping and unlawful possession

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of marijuana with intent to distribute, but acquitted of all

firearms charges.

As the trial transcripts make apparent, in its Presentence

and Investigation Report (“PSR”), the probation office

calculated an adjusted offense level of 34 for the kidnapping

conviction under the U.S. Sentencing Guidelines. Specifically,

it concluded that the base offense level for kidnapping is 32 and

that a two-level increase could be applied if a dangerous

weapon was used. It also calculated an adjusted offense level

of 16 for the marijuana conviction. Based on this calculation,

the Sentencing Guidelines imprisonment range was 151

months to 188 months for the kidnapping conviction and 60

months for the marijuana conviction.

The district court ultimately sentenced Browne to

concurrent terms of 176 months for kidnapping and 60 months

for unlawful possession with intent to distribute marijuana.

The court found by a preponderance of the evidence that

Browne used a dangerous weapon in the kidnapping, despite

the jury’s acquittal on all firearms charges. Based on this

finding, the court increased the base offense level by two levels

as recommended in the PSR. In determining the final sentence,

the district court also found that the kidnapping was in

furtherance of Browne’s drug trafficking, which it concluded

was an aggravating factor for the kidnapping.

II. DISCUSSION

On appeal, Browne presents issues which he did not raise

at trial. Under Federal Rule of Criminal Procedure 52(b), “[a]

plain error that affects substantial rights may be considered

even though it was not brought to the [district] court’s

attention.” To demonstrate plain error, the appellant must

satisfy three requirements: “First, there must be an error that

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has not been intentionally relinquished or abandoned. Second,

the error must be plain—that is to say, clear or obvious. Third,

the error must have affected the defendant’s substantial rights,

which in the ordinary case means he or she must ‘show a

reasonable probability that, but for the error,’ the outcome of

the proceeding would have been different.” Molina-Martinez

v. United States, 136 S. Ct. 1338, 1343 (2016) (internal

citations omitted) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004)). If all three conditions are

satisfied, “the court of appeals should exercise its discretion to

correct the forfeited error if the error ‘seriously affects the

fairness, integrity or public reputation of judicial

proceedings.’” Id. (quoting United States v. Olano, 507 U.S.

725, 736 (1993)).

A. Joinder and Severance

First, Browne argues that the kidnapping and drug-related

charges were improperly joined. At no time before or during

trial did Browne object to the joinder of the charges or move

for a severance. There is of course nothing inherently

erroneous about including multiple charges in one indictment.

“[An] indictment or information may charge a defendant in

separate counts with 2 or more offenses if the offenses

charged—whether felonies or misdemeanors or both—are of

the same or similar character, or are based on the same act or

transaction, or are connected with or constitute parts of a

common scheme or plan.” Fed. R. Crim. P. 8(a).

Rule 8(a) is construed liberally, but we have emphasized

it “is not infinitely malleable: it cannot be stretched to cover

offenses . . . which are discrete and dissimilar and which do not

constitute parts of a common scheme or plan.” United States

v. Richardson, 161 F.3d 728, 733 (D.C. Cir. 1998). In

Richardson, we explained that “a ‘but for’ sequential

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relationship” does not create a logical relationship between

“offenses discrete and dissimilar on their faces.” Id. at 734.

Such “[o]ffenses do not become logically related solely by way

of an intervening arrest; that is, the fact that an intervening

arrest brings preceding and succeeding offenses together

temporally or precipitatively simply does not suffice to create

the logical relationship contemplated by Rule 8.” Id. The

analysis of whether the charges are properly joined “focuses

solely on the indictment and pre-trial submissions,” not the

evidence introduced at trial. United States v. Gooch, 665 F.3d

1318, 1334 (D.C. Cir. 2012). Further, even if counts are

properly joined, the district court retains discretion to sever

them and order separate trials “[i]f joinder . . . appears to

prejudice a defendant.” Fed. R. Crim. P. 14(a).

Specifically, Browne argues that the superseding

indictment does not depict the kidnapping and drug-related

charges as one transaction. He asserts that, beyond the

intervening arrest, there is no logical relationship between the

sets of charges. He argues that despite his failure to move for

severance, the district court erred because it did not sua sponte

sever the charges and order separate trials. We disagree.

From the discussion above, it is obvious that the question

of severance of charges in an indictment is not one that presents

a bright line jumping to the eyes of a trial judge and alerting

him that he should immediately sua sponte save the defendant

from himself by presenting a remedy he has not asked for in

order to resolve a problem to which he has not objected. On

the record, it was not plainly erroneous to conclude that the

kidnapping and drug-related charges “are connected with or

constitute parts of a common scheme or plan.” Fed. R. Crim.

P. 8(a). After arriving at the McDonald’s in Aberdeen, Browne

returned to Flores’s car and placed a suitcase in the trunk.

According to the joint statement of the case, he then held Flores

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at gunpoint as he directed Flores to drive him back to his

apartment in Washington, D.C. J.A. 67. The next day, the

police executed a search warrant at Browne’s apartment and

“recovered approximately 78 pounds of marijuana,

approximately $35,000 in currency, a cash-counting machine,

and other items.” J.A. 68. When the officers executed the

search warrant, “they found more than 40 pounds of suspected

marijuana distributed among a number of items, including

several suitcases. When the defendant went up to Maryland,

he returned with a suitcase he had not had in his original

possession.” Supplemental Appendix (“S.A.”) 2. Thus, unlike

the situation in Richardson, supra, the presence of suitcases

during the kidnapping and at the apartment meant that it was

not solely the but-for connection that brought the two charges

together. Rather, the charges could be seen as connected by

those common items and their evident utility in transporting

marijuana. And trying the charges together was not so clearly

prejudicial to Browne to warrant sua sponte “order[ing]

separate trials of counts.” Fed. R. Crim. P. 14(a).

As we stated earlier, there is no plain error here, and indeed

we are not concluding that there was error at all in the district

court’s failure to sua sponte sever Browne’s charges under

Rule 8(a) or Rule 14.

B. Federal Rules of Evidence

Related to his severance argument, Browne attempts to

demonstrate prejudice from the joinder by asserting that the

introduction of the drug offense evidence before a jury also

trying the kidnapping offense violated his rights under the

Federal Rules of Evidence. In part, Browne notes that, even

though he did not put on a defense against the unlawful

possession of marijuana with intent to distribute charge, the

government was allowed to introduce the 78 pounds of

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marijuana recovered from his apartment. He asserts that

introducing that evidence violated Rule 403 because it was

more prejudicial than probative, Fed. R. Evid. 403; violated

Rule 404 because it was introduced only to show his propensity

towards criminal behavior, Fed. R. Evid. 404; and violated

Rules 401 and 402 because it was irrelevant to the kidnapping

charge, Fed. R. Evid. 401–402.

In light of our holding that there was no plain error in the

failure to sever, however, the drug evidence was clearly

relevant and admissible to prove that Browne unlawfully

possessed marijuana with intent to distribute. Browne’s claim

that he did not mount a defense to the marijuana charge does

not change the calculus. He pleaded not guilty. The

government was obligated to prove the charge beyond a

reasonable doubt. The evidence introduced was relevant to that

charge. There was no plain error in the joinder, and there was

no plain error in the admission of the evidence. Rare indeed

would the case be in which we would find plain error in a

judge’s failure to sua sponte exclude evidence. Certainly, it is

possible that such a case occurs from time to time, but this is

not it.

C. Jury Instruction 2.219

The joint proposed jury instructions included instruction

2.219, titled “Impeachment by Proof of a Pending Case,

Probation, or Parole–Witness.” J.A. 62–63. That instruction

informs the jury that if a witness is “under investigation,” it

may consider that fact in assessing “whether the witness has a

bias in favor of one of the parties that may affect his/her

willingness to tell the truth.” 1 Crim. Jury Instructions for D.C.

Instruction 2.219 (Lexis ed. 2019). After reviewing the

proposed jury instructions, the district court decided not to

issue instruction 2.219 because it did not think that the

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instruction applied to any witness. Neither party objected to

the court’s decision at that time. Browne first raised the issue

post-trial in a motion for a new trial, but the district court

denied that motion. On appeal, Browne argues again that the

district court erred when it struck instruction 2.219.

Relevant to this issue, Flores is a native of El Salvador. He

entered the United States on a visa in 2008 and stayed in the

country after it expired. After he testified before the grand jury,

Flores decided to participate in the U-Visa program, which

allows a victim of a violent crime to obtain legal-resident status

by cooperating in the prosecution of that crime. As part of the

U-Visa program, a law enforcement agency must certify that

the applicant is aiding an investigation of a crime, and the U.S.

Customs and Immigration Service must conduct its own

investigation to determine whether the applicant is eligible for

a U Visa. See generally 8 C.F.R. § 214.14. At trial, Flores

testified that he had begun but not yet completed his U-Visa

application.

Rather than issuing instruction 2.219, the court instead

issued standard jury instructions related to witness credibility

and potential for bias. The court instructed the jury:

You alone are the sole judges of the credibility

of the witnesses. You alone determine whether

to believe any witnesses and the extent to which

a witness should be believed. . . .

You may consider anything that in your

judgment affects the credibility of any witness.

For example, you may consider . . . whether the

witness has any motive for not telling the truth

. . . [and] whether the witness has any interest in

the outcome of this case, or friendship or

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hostility toward other people concerned with

this case. . . .

You should consider whether any

inconsistencies are the result of different

individuals seeing, hearing or recollecting

things differently or the result of actual

forgetfulness or the result of innocent mistake

or the result of intentional falsehood. . . .

If you believe that any witness has shown him

or herself to be biased for or against either side

in this trial, you may consider and determine

whether such bias or prejudice has colored the

testimony of this witness so as to affect the

desire and capability of that witness to tell the

truth.

S.A. 126–28.

When presented with a motion for a new trial, the court

has broad discretion to “vacate any judgment and grant a new

trial if the interest of justice so requires.” Fed. R. Crim. P.

33(a). As to the jury instructions, the general rule is that “[a]s

long as a district judge’s instructions are legally correct[,] . . .

he is not required to give them in any particular language.”

Miller v. Poretsky, 595 F.2d 780, 788 (D.C. Cir. 1978).

Further, “jury instructions are not considered erroneous if,

when viewed as a whole, ‘they fairly present the applicable

legal principles and standards.’” Joy v. Bell Helicopter

Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993) (quoting

EEOC v. Atl. Cmty. Sch. Dist., 879 F.2d 434, 436 (8th Cir.

1989)). Again, because the omission of instruction 2.219 was

not raised until after trial, we review for plain error.

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At the core of Browne’s complaint, he is concerned that

the court did not appropriately focus the jury’s attention on

Flores’s potential for bias. See Comment to 1 Crim. Jury

Instructions for D.C. Instruction 2.219 (Lexis ed. 2019) (noting

that instruction 2.219 is appropriate if “the circumstances

indicate that bias may exist”). Browne does not assert that the

district court issued instructions that misstated the elements of

the charged crimes or misstated the appropriate legal standard

to be applied, for example. Instead, the gist of his concern is

that the issued instructions did not single out Flores’s potential

for bias resulting from his immigration status in the way that

instruction 2.219 would. See Miller, 595 F.2d at 788. But, as

stated previously, “[a]s long as . . . [the] instructions are legally

correct[,] . . . [the judge] is not required to give them in any

particular language.” Id.

In this case, the issued instructions clearly focused the

jury’s attention on the issues of witness credibility, bias, and

motive to falsify testimony. Moreover, Browne has failed to

cite any authority that affirmatively supports his argument that

instruction 2.219 covers U-Visa applicants in the first place.

Nor have we found any case stating that instruction 2.219

applies to testimony from U-Visa applicants during our own

review. Absent legal authority stating such, it is not clear that

U-Visa applicants are even “under investigation” within the

meaning of instruction 2.219. Accordingly, the court did not

clearly or obviously err when it decided to strike the

instruction. Therefore, Browne has failed to demonstrate that

the district court committed plain error when it refused to

exercise its discretion to grant a new trial based on the

exclusion of instruction 2.219.

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D. Sentencing

During his sentencing hearing, Browne objected to the

district court’s finding by a preponderance of the evidence that

Browne had a gun during the kidnapping, arguing that it

violated the Sixth Amendment and due process because the

jury acquitted him of all gun-related charges. Similarly,

Browne argues that the judge’s finding that the kidnapping was

in furtherance of drug trafficking violates the Sixth

Amendment and due process because this was uncharged and

unlitigated conduct.

Browne concedes that circuit precedent allows the district

court to base its sentence on acquitted or uncharged conduct if

it finds by a preponderance of the evidence that the conduct

occurred, United States v. Kpodi, 824 F.3d 122, 126 (D.C. Cir.

2016), but he argues that this precedent violates the Sixth

Amendment and due process, see Appellant’s Br. 43–44 (citing

United States v. Bell, 808 F.3d 926, 929–30 (D.C. Cir. 2015)

(Millett, J., concurring in the denial of rehearing en banc)); see

generally United States v. Norman, 926 F.3d 804, 811 (D.C.

Cir. 2019) (noting criticism of reliance on acquitted or

uncharged conduct at sentencing), cert. filed, No. 19-6589

(Nov. 12, 2019); id. at 813–14 (Henderson, J., concurring)

(defending soundness of precedent). Because Browne’s

argument is at odds with the current state of the law, we cannot

conclude that the district court erred when it considered

acquitted and uncharged conduct in imposing Browne’s

sentence.

Further, Browne argues that the finding that the

kidnapping was in furtherance of drug trafficking was error

because there was no evidence presented to support that

finding. See Appellant’s Br. 42 (quoting United States v.

Petlechkov, 922 F.3d 762, 770 (6th Cir. 2019) (“No evidence

14

cannot be a preponderance of the evidence.”)). Browne never

objected to this second finding before or at sentencing. Thus,

we review the court’s decision to base the sentence on that issue

for plain error.

Browne relies predominantly on Kpodi and United States

v. Smith, 267 F.3d 1154 (D.C. Cir. 2001), to support this

argument. Pre-trial, the district court in Kpodi ruled evidence

inadmissible under Federal Rule of Evidence 404(b)(2)

because it held that the “evidence, standing alone, did not

support the Government’s inference that Kpodi fired a gun

during the shootings or held a weapon while fleeing.” Kpodi,

824 F.3d at 127. But at sentencing, the Kpodi court found that

same evidence persuasive to support its “inference that Kpodi

either fired a weapon, was holding a gun while fleeing or even

participated in the . . . shooting.” Id. at 128. The district court

then explicitly relied on that inference when determining the

appropriate sentence. Id. at 127–28. Because the district court

“switched course” between the evidentiary ruling and

sentencing, we held that the district court’s reliance on that

evidence at sentencing was clearly erroneous. Id. at 127.

In Smith, relying on uncharged conduct, the district court

applied a three-level upward departure from the recommended

sentence under the U.S. Sentencing Guidelines. Smith, 267

F.3d at 1163. We noted that the district court specifically found

that “the defendant’s commission of other crimes on persons or

entities in the course of committing the offenses of conviction

justified a departure.” Id. (internal quotation marks omitted).

This court explained that “in order to satisfy due process such

conduct must be proven by a[t] least a preponderance of the

evidence.” Id. at 1165. We vacated the sentence because the

district court sentenced the defendant “exactly as if he had

actually been convicted of [the uncharged conduct]” and the

government had failed to prove “under any standard of proof”

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that the defendant could have been convicted of at least one of

the uncharged crimes as it had failed to produce any evidence

related to an element of that crime. Id. at 1165–66.

Unlike Kpodi, the court in this case never passed upon the

admissibility of any evidence related to whether the kidnapping

was in furtherance of drug trafficking. We are thus not faced

with a situation in which the district court adopted conflicting

views of the same evidence. Additionally, unlike Smith, we are

not faced with a situation in which the district court relied on

uncharged conduct to justify an upward departure from the

Sentencing Guidelines. Instead, the district court found that the

defendant’s drug trafficking was one of many aggravating

factors on the kidnapping conviction and then imposed a

within-guidelines sentence. Further, the district court’s

inference that the kidnapping was in furtherance of Browne’s

drug trafficking was entirely reasonable given the evidence

before it. Accordingly, we hold that the court did not clearly

or obviously err when it relied on that inference at sentencing.

E. Ineffective Assistance of Counsel

Finally, Browne asserts a variety of ineffective assistance

of counsel claims for the first time on appeal. He argues that

his attorneys were ineffective in trial preparation, witness

examination, and failing to raise the issues now raised in this

appeal, including improper joinder, failure to sever, and

admissibility of evidence. Perhaps most significantly, he

argues that his Miranda rights were violated because the police

continued to question him after he requested an attorney.

To succeed on an ineffective assistance of counsel claim,

Browne must first show that his counsels’ performance was

deficient, meaning that “counsel’s representation fell below an

objective standard of reasonableness.” Strickland v.

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Washington, 466 U.S. 668, 688 (1984). Second, Browne “must

show that the deficient performance prejudiced the defense,”

id. at 687, meaning “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different,” id. at 694.

“When an ineffective-assistance claim is brought on direct

appeal, appellate counsel and the court must proceed on a trial

record not developed precisely for the object of litigating or

preserving the claim and thus often incomplete or inadequate

for this purpose.” Massaro v. United States, 538 U.S. 500,

504–05 (2003); see also United States v. Rashad, 331 F.3d 908,

909 (D.C. Cir. 2003) (noting it is likely, “when a defendant

asserts his sixth amendment claim for the first time on direct

appeal, that the relevant facts will not be part of the trial

record”). Thus, “this court’s ‘general practice is to remand the

claim for an evidentiary hearing’ unless ‘the trial record alone

conclusively shows’ that the defendant either is or is not

entitled to relief.” Rashad, 331 F.3d at 909–10 (quoting United

States v. Fennell, 53 F.3d 1296, 1303–04 (D.C. Cir. 1995)).

The critical inquiry at this stage is whether the record

conclusively demonstrates that Browne could not establish an

ineffective assistance of counsel claim if given the opportunity

to do so on remand. See id. at 912.

Browne argues that the police continued to question him

after he requested an attorney, thereby violating his Miranda

rights. See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981).

He alleges that his statements in response to those questions led

to the search warrant, rendering that warrant invalid and

necessitating the suppression of any evidence obtained from a

search pursuant to it. Browne’s other ineffective assistance of

counsel claims relate to his attorneys’ failures to challenge

other deficiencies with the search warrant, argue the charges

were improperly joined, request severance, advise about the

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possibility of a blind plea on the marijuana charge, adequately

prepare for trial, conduct sufficient witness examinations, seek

evidentiary exclusions, advocate for proper jury instructions,

and conduct a sufficient investigation into witness

backgrounds.

Because Browne has raised a colorable claim of

ineffective assistance of counsel, we remand to the district

court to develop a record and assess those claims in the first

instance.

III. Conclusion

For the foregoing reasons, we affirm the various

challenged rulings of the district court, and, consistent with our

usual practice, we remand the ineffective assistance of counsel

claims to the district court.

So ordered.