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United States v. Browne

United States District Court, District of Columbia

September 17, 2018

SHANE BROWNE, Defendant.


          TREVOR N. MCFADDEN, U.S.D.J.

         Shane 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.

         I. BACKGROUND[1]

         Mr. 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.

         After 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.

         Suddenly, 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.

         During 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 266-67.

         When 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 504-05.

         The 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.

         That 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.

         In 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.

         Mr. 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.

         At the 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.

         The 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 (Lyft records).

         As in 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.

         After 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.[2] 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.

         The 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.

         II. ANALYSIS

         Mr. 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 ...

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