United States District Court, District of Columbia
MEMORANDUM AND ORDER
N. MCFADDEN, U.S.D.J.
Browne, convicted by a jury of kidnapping and of possession
with intent to distribute marijuana, seeks a new trial or a
judgment of acquittal. He argues for a new trial based on
allegations that the Court instructed the jury erroneously,
that the jury reached mutually exclusive verdicts on two
counts of the indictment, and that the jury's verdict was
against the weight of the evidence. He argues for acquittal
based on his victim's alleged lack of credibility and the
inherent improbability of his victim's testimony. Because
Mr. Browne has not identified plain error in the jury
instructions, has not identified mutually exclusive verdicts,
has not shown that the weight of the evidence favors
acquittal, and has not carried the burden of discrediting his
victim's testimony, Mr. Browne's Motion for New Trial
or Judgment of Acquittal is DENIED.
Browne stood trial on a seven-count indictment charging him
with kidnapping, assault with a dangerous weapon, possession
with intent to distribute marijuana, and firearms-related
violations under federal and District of Columbia law.
Superseding Indictment at 1-3. At trial, the Government
called Ulises Flores, a former Lyft driver and the victim of
Mr. Browne's kidnapping. See Tr. 211. Mr. Flores
testified that he gave Mr. Browne a Lyft ride from an
apartment in Northwest Washington, D.C. to a McDonald's
in Aberdeen, Maryland on December 11, 2017. Id. at
218-19, 224, 230; see also Gov. Ex. C (Lyft
records). During the drive, he overheard Mr. Browne on the
phone discussing email encryption and the fact that he had a
backup person to keep his business going if he went to jail.
Tr. 226. And he noticed that Mr. Browne smelled strongly of
marijuana. Id. Mr. Flores began to suspect that Mr.
Browne was a drug dealer. Id. at 360. He was right.
Mr. Flores dropped Mr. Browne off, he took some time to call
his wife, buy a coffee, use the restroom, wash his face,
and-as he liked to do between rides-to clean his car.
Id. at 230-31, 234, 323-29; see also Gov.
Ex. B9 (security camera footage of Mr. Flores at the
McDonald's counter); Gov. Ex. B11 (security camera
footage of Mr. Flores leaving the McDonald's restroom and
picking up his order); Gov. Ex. B13 (security camera footage
of Mr. Flores cleaning his car in the McDonald's parking
lot). He got back in his parked car, still talking with his
wife. Tr. 239.
Mr. Browne returned with a suitcase that he had not had
before, put it in the trunk of Mr. Flores's car, and got
in the back seat. Id. at 241; see also Gov.
Ex. A1 (apartment security camera footage of Mr. Browne
entering Mr. Flores's car without a suitcase); Tr. 314
(describing video); Gov. Ex. B1A (McDonald's security
camera footage of Mr. Browne putting a suitcase in Mr.
Flores's trunk and entering the car); Tr. 332-34
(describing video). According to Mr. Flores, he told Mr.
Browne he did not want to drive him back, but Mr. Browne drew
a gun from his backpack and ordered him to drive.
Id. at 247, 249-54.
the drive, Mr. Flores noticed that a phone call had
distracted Mr. Browne, and he took the opportunity to
surreptitiously send Lyft an email asking them to call the
police because he was in trouble. Id. at 257-59,
338; see also Gov. Ex. 116 (email). At the end of
the drive, Mr. Browne put $100 in cash on an armrest in the
car, took his suitcase, and went into the apartment building
from which he had started. Tr. 261-62. Mr. Flores tried to
use his phone to take a video of Mr. Browne as he walked
away. Id. at 262, 310. Although the recording did
not capture a clear image of Mr. Browne, it did capture the
sound of Mr. Flores's heavy breathing, suggesting
significant stress. Gov. Ex. 105 (video); Tr. 341 (describing
video). Mr. Flores then drove away. Id. at 263. He
tried to call Lyft to remove his personal information from
its app because of his concern that Mr. Browne could use the
information to harm him and to warn Lyft against sending
other drivers to Mr. Browne. Id. at 264-65, 419-20.
While he was waiting for Lyft to pick up the phone, he
pressed the OnStar button in his car and explained his
situation to the dispatcher. Id. at 266. She offered
to call the police, and he eventually agreed. Id. at
the police arrived, Mr. Flores explained what had happened,
described Mr. Browne, and identified Mr. Browne in a
photograph that the police took from security camera footage
at the apartment where Mr. Flores dropped him off.
Id. at 267-69, 471-75. He also gave the police the
$100 that Mr. Browne had left in the car. Id. at
270. Based on Mr. Flores's identification and a
discussion with building staff, the police learned Mr.
Browne's apartment number. Id. at 475-76. About
two hours after Mr. Flores dropped Mr. Browne off, the police
knocked on Mr. Browne's door and arrested him.
See Gov. Ex. A2 (security camera footage of Mr.
Browne's return to the apartment); Tr. 335-36 (discussion
of time-stamp showing Mr. Flores dropped Mr. Browne off at
around 7:26 p.m.); Gov. Ex. 125 (body-worn camera footage of
police knocking on Mr. Browne's door and arresting him
when he came out); Tr. 503 (discussion of time-stamp showing
Mr. Browne came to his door at around 9:26 p.m.). They sealed
his apartment but did not search it then. Id. at
next day, the police obtained a warrant and entered Mr.
Browne's apartment. Id. at 560. They found about
78 pounds of marijuana in Mr. Browne's apartment unit,
most of it in heat-sealed bags packed in three suitcases and
a plastic bin. Id. at 650, 676-82, 719, 735. They
also found other drug paraphernalia, a money-counting
machine, a heat-sealing machine, and about $35, 000 in cash.
Id. at 628, 635, 663, 686, 692-94, 756. But the
police found no gun in or around the apartment building.
Id. at 561-62. They noticed a trash chute on Mr.
Browne's floor but learned that the trash had been taken
out overnight. Id. at 574-75, 580.
same day, Mr. Flores returned his car, which he had leased
for eight months, because he no longer felt safe in it.
Id. at 290. He had had no problems with the car up
to that point, but he was afraid Mr. Browne would identify
him by the car's tag or make and model. Id. at
290-91. Mr. Flores also had Lyft change his profile
information in the Lyft app. Id. at 289.
addition to testifying about the kidnapping and its
aftermath, Mr. Flores testified about his own background. Mr.
Flores said that he entered the United States legally in 2008
but overstayed his visa. Id. at 275. At the time of
the kidnapping, he had not taken steps to regain legal
status. Id. at 276. He believed he could regain
legal status because of his marriage to a permanent legal
resident. Id. at 276.
Flores's wife had gotten a U visa as a victim of domestic
violence in a prior relationship. Id. at 277. At
first, Mr. Flores thought that only domestic violence victims
could get U visas. Id. at 278. He did not learn that
he could be eligible for a U visa as a kidnapping victim
until after he had spoken with the police, met with
prosecutors, signed a consent form for the Government to
search his phone, and testified before a grand jury.
Id. at 280-81.
time of trial, Mr. Flores had decided to seek a U visa but
had not completed his application. Id. at 287.
During closing argument, the Government addressed the
possibility that Mr. Flores might have fabricated a tale of
violent crime to get a visa. Id. at 817, 825. And
Mr. Browne's counsel argued that the jury should not
credit Mr. Flores's testimony, in part because he must
have known from his wife's experience that he would be
eligible for a U visa if he claimed to have been a kidnapping
victim. Id. at 840, 846-47.
Government also presented evidence supporting various parts
of Mr. Flores's testimony, including fingerprint evidence
showing that Mr. Browne touched Mr. Flores's car, Lyft
records corroborating that Mr. Browne had ordered a ride from
his apartment to Aberdeen, and several surveillance videos.
Tr. 557-58 (expert testimony on fingerprint evidence); Gov.
Exs. A1, A2, B1, B1A, B4, B6-13, B15-17, B20-23 (surveillance
videos and still shots from surveillance videos); Gov. Ex. C
this motion, Mr. Browne's trial counsel did not
meaningfully contest the overwhelming evidence relating to
the drug charge. Rather, counsel sought to discredit the
evidence for the remaining counts, suggesting that Mr. Flores
willingly drove Mr. Browne from the McDonald's.
Id. at 842-45. Counsel suggested that Mr. Flores
became concerned that he would be implicated in Mr.
Browne's drug activity and that he concocted the
kidnapping story to protect himself. Id. at 845. Mr.
Browne called no witnesses in his defense.
the close of evidence and outside the presence of the jury,
the Court and the parties discussed the joint proposed jury
instructions that the parties had submitted before trial.
Id. at 772-81. The Court explained at the outset
that it would identify issues for discussion and instructed
counsel to “speak up if you believe there are any other
[issues].” Id. at 772. The Court said it
intended to strike Jury Instruction 2.219, which states:
You have heard evidence that [name of witness] is [on
probation] [on parole] [on supervised release] [charged with
a crime] [awaiting sentence] [under investigation]. You may
consider this evidence when deciding whether the witness has
a bias in favor of one of the parties that may affect his/her
willingness to tell the truth.
Id. at 777. Pretrial, the parties had listed this as
an instruction to give the jury “if applicable.”
Joint Proposed Jury Instructions 49. But the Court expressed
its view that the instruction did not apply given the
evidence produced at trial, and the parties offered no
objection. Id. at 777. Nor did the parties offer any
objection when, after reviewing all the instructions, the
Court asked whether they had any remaining questions or
suggestions. Id. at 781.
Court instructed the jury, and the jury convicted Mr. Browne
on Counts I and III of the indictment. Verdict Form 1-2.
Counts I and III charged Mr. Browne with federal kidnapping
and possession with intent to distribute marijuana,
respectively. Id. The jury acquitted Mr. Browne on
the remaining counts. Id. at 1-3. Mr. Browne
retained new counsel post-trial.
Browne's motion argues for a new trial or for acquittal
on the kidnapping count of his conviction. Although one
heading in his motion asserts that he may be entitled to a
new trial on the drug count as well, the subheadings in this
section of the brief show that his actual arguments focus on
the kidnapping count. Compare Mot. New Trial 1
(“Mr. Browne is entitled to a new trial on Counts 1
and/or 3.”) with Id. (“The erroneous
removal of Instruction 2.219 constitutes plain error and
warrants a new trial on Count 1 (kidnapping).”) and
Id. at 8 (“The guilty verdict on the kidnapping
charge should be vacated as being against the weight of the
evidence, warranting a new trial.”) and Id. at
10 (“The logically inconsistent verdicts on Counts I
and II require a new trial on the former.”). Because
Mr. Browne has offered no argument for a new trial or for a
judgment of acquittal on Count III, the Court focuses its