United States v. Browne

• Decision Date: 22 July 2022
• Docket Number: 1:17-cr-241 (TNM)
• Parties: UNITED STATES OF AMERICA, v. SHANE BROWNE, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA, v. SHANE BROWNE, Defendant.

No. 1:17-cr-241 (TNM)

United States District Court, District of Columbia

July 22, 2022

MEMORANDUM ORDER

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

A jury convicted Shane Browne of kidnapping and possession with intent to distribute marijuana. Browne moved for a new trial and judgment of acquittal, which this Court denied. The D.C Circuit affirmed, but it remanded for development of a factual record on Browne's ineffective-assistance claims. The Court held an evidentiary hearing, receiving testimony from Browne, his trial attorneys, and several other witnesses. Considering the now-developed record, the parties' briefing, and their arguments at the hearing the Court denies Browne's motion for a new trial.

I. BACKGROUND

Police arrested Browne in December 2017 for armed kidnapping. A Lyft driver named Ulises Flores reported that Browne requested a ride from Washington, D.C., to Aberdeen, Maryland, and then forced Flores at gunpoint to make the return trip. When police eventually searched Browne's apartment, they discovered 78 pounds of marijuana and $36,000 in cash, but no firearms. A grand jury returned a superseding indictment charging Browne with seven counts: Kidnapping in violation of 18 U.S.C. § 1201(a)(1) (Count One); Possessing a Firearm During a Crime of Violence in violation of 18 U.S.C. § 924(c)(1) (Count Two); Unlawful Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) (Count Three); Kidnapping while Armed in violation of D.C. Code §§ 22-2001, 4502 (Count Four); two counts of Possession of a Firearm During a Crime of Violence in violation of D.C. Code § 22-4504(b) (Counts Five and Seven); and Assault with a Dangerous Weapon in violation of D.C. Code § 22-402 (Count Six).

A jury convicted Browne on Counts One and Three. He then moved for a new trial and judgment of acquittal, see Mot. for New Trial or Acquittal, ECF Nos. 63 & 64, which this Court denied, see Mem. Order, ECF No. 76. Browne appealed. See United States v. Browne, 953 F.3d 794 (D.C. Cir. 2020). On appeal, the D.C. Circuit found he made “colorable” ineffective-assistance-of-counsel claims and remanded to this Court for development of a factual record. Id. at 804. The motion is now ripe for resolution.

II. LEGAL STANDARDS AND CREDIBILITY FINDINGS

The Sixth Amendment guarantees a right to counsel in criminal proceedings. See Gideon v. Wainwright, 372 U.S. 335 (1963). That promise goes unfulfilled where defense counsel's “conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).

To succeed on a Strickland claim a defendant must make a two-part showing. First, he must show that his “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Second, he must show those errors prejudiced his defense-that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Reviewing courts generally “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” United States v. Mohamed, 863 F.3d 885, 889 (D.C. Cir. 2017) (quoting Strickland, 466 U.S. at 689). And “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.

When a defendant asserts his Sixth Amendment rights for the first time on appeal, most often “the relevant facts will not be part of the trial record.” United States v. Rashad, 331 F.3d 908, 909 (D.C. Cir. 2003). So the typical practice in this circuit is to “remand the claim for an evidentiary hearing.” United States v. Fennel, 53 F.3d 1296, 1304 (D.C. Cir. 1995).

* * *

This Court held a two-day evidentiary hearing to develop a record on the effectiveness of Browne's trial counsel. The parties offered several witnesses: Browne himself testified, as did his defense attorneys, Sean Farrelly and Jason Kalafat; his friend, Jordan Keslow, who spoke with the Defendant by phone during the alleged kidnapping; and his then-girlfriend, Kathryn Impellizzeri, who also spoke to Browne by phone and text on that night. Browne also introduced voluminous cellular records showing his phone activity during the offense.

Considering the testimony and evidence adduced at that hearing, the Court makes the following general credibility findings relevant to its analysis:

• Jason Kalafat and Sean Farrelly are credible witnesses who gave well-supported testimony.

o Both attorneys have extensive backgrounds in criminal law. When he represented Browne, Kalafat had participated in 87 criminal trials-a substantial portion of which were before a jury. Farrelly had roughly 60 trials-around ten of which were before a jury. Given this experience, both attorneys are well-positioned to make strategic decisions about how to present a defense. And their testimony and demeanor on the stand suggested to the Court that they are skilled and knowledgeable professionals. This impression was buttressed by the Court's observations of both attorneys throughout the trial.

o Although at times Kalafat and Farrelly did not recall specific details about their trial preparation and representation, those failures of memory are attributable to the passage of time (about 5 years) and do not suggest dishonesty. When their memories failed, they gave more general testimony (e.g., noting that they spoke with a potential witness but failing to remember specifics). The Court credits that more generalized testimony as honest, though incomplete.

o Neither Farrelly nor Kalafat are biased in a way that would affect their testimony. To be sure, these proceedings challenge the effectiveness of their representation. But both attorneys also expressed genuine affection for Browne and a belief he is innocent of the kidnapping charge. These interests crosscut, making it unlikely the attorneys would give dishonest testimony.

• Jordan Keslow's testimony was probative, though in parts incredible. Keslow's lifelong friendship with Browne gives him a clear reason to bend the truth-doing so could help the Defendant get a new trial and another shot at acquittal. The content of Keslow's testimony suggests he did at times distort the truth to aid Browne. For example, Keslow testified at the evidentiary hearing and in his declaration that he was unaware of Browne's work in drug trafficking. The Court finds it implausible that Keslow, a lifelong friend and former roommate of Browne, would not know his friend trafficked drugs for a living. When pressed on this point, Keslow had no explanation and his demeanor was evasive. Given these credibility concerns, when Keslow's testimony conflicts with that of Browne's trial counsel, the Court credits trial counsel.

• Kathryn Impellizzeri likewise gave probative, though biased, testimony. Although Impellizzeri and Browne are no longer romantically involved, she testified that she still cares for him and wants to help his case. Given that admitted bias, and having carefully observed her demeanor on the stand, where Impellizzeri's testimony conflicts with that of Browne's trial counsel, the Court credits trial counsel.

• Shane Browne's testimony was probative, though he was evasive at times and has a clear bias. Browne has a strong incentive to distort the truth in these proceedings-doing so might secure him a new trial. Throughout his testimony, Browne was evasive in discussing the details of his drug trafficking, seeking to downplay his role and cast himself as naive. For example, Browne testified that he first believed he was storing mass quantities of marijuana in suitcases for a legitimate cannabis business that had simply run out of storage space. Given these credibility concerns, where Browne's testimony conflicts with that of his trial counsel, the Court credits trial counsel. While Browne appears to be a likeable and even gentle person, he did not appear to be a trustworthy one. And that is what matters here.

III. ANALYSIS

Browne raises several grounds in support of his Strickland claim. Considering each, the Court finds he has not shown trial counsel's conduct was objectively unreasonable or even erroneous. And even if some strategic decisions were erroneous, Browne is not entitled to a new trial because those errors did not prejudice his defense.

A.

Browne's first argument is that Kalafat and Farrelly were ineffective in pretrial preparation. He says it was objectively unreasonable to (1) “barely” meet with him before trial; (2) not “contact or subpoena three witnesses” who could offer exculpatory testimony; (3) not file certain motions in limine excluding prejudicial evidence; and (4) never advise him of the possibility of a blind plea to limit evidence of his drug-trafficking activities. See Mot. for New Trial (MNT) 24-28, ECF No. 133-1. The evidence does not support these arguments.

i.

Start with the first assertion-that counsel “barely” met with Browne before trial. Both attorneys state in sworn declarations that they met with him several times between his arrest and trial. See Opp. to MNT (Opp.), Ex. 1 (Decl. of Jason Kalafat) at 2 (“[W]e met with Mr Browne as often as was necessary and whenever Mr. Browne requested that we meet.”); id. at 3 (“Although we did not need to prepare Mr. Browne to testify, we continued to meet with him regularly and keep him apprised of the status of his case.”); id., Ex. 2 (Decl. of Sean Farrelly) at 2-3 (detailing about seven pretrial meetings with the Defendant). And those meetings were substantive, discussing with...