[00:00:00] Speaker 01:
Oyez, oyez.

[00:00:01] Speaker 01:
All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to drive here and give their attention, for the Court is now sitting.

[00:00:13] Speaker 01:
God save the United States and its Honorable Court.

[00:00:16] Speaker 01:
Be seated, please.

[00:00:20] Speaker 01:
Case number 18-3073, the United States of America v. Shane Brown Appellant.

[00:00:25] Speaker 01:
Mr. Smith for the Appellant, Ms.

[00:00:27] Speaker 01:
Heffenan for the Appellant.

[00:00:30] Speaker 05:
Mr. Smith, good morning.

[00:00:31] Speaker 00:
Good morning.

[00:00:32] Speaker 00:
May please the court.

[00:00:32] Speaker 00:
Mike left Smith on behalf of appellant Shane Brown and with me today.

[00:00:35] Speaker 00:
Also my co counsel Max McAfee.

[00:00:38] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:41] Speaker 00:
Uh, this case arises from a lift ride that Mr. Brown summoned to take him from his Washington apartment to Aberdeen, Maryland and the events that happened afterward.

[00:00:50] Speaker 00:
Uh, but it's really two cases.

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It's a case about marijuana possession in which the evidence was overwhelming.

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And then it's a case about kidnapping and weapon charges in which the evidence was much closer and more ambiguous.

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And the first issue we've raised in our brief is that the case did not meet the requirements of Rule 8A for Joinder, should have been tried separately, and that it was a plain error not to try them separately.

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I just want to touch on a couple points from the briefs.

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I'm not going to obviously.

[00:01:24] Speaker 02:
Is it plain error not to try it separately?

[00:01:26] Speaker 00:
Excuse me, Your Honor?

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Is plain air or nothing right?

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Try it separately?

[00:01:31] Speaker 03:
That's correct.

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What's your clearest statement of law that was being violated by the district judge, or what kind of abusive discretion?

[00:01:42] Speaker 00:
Well, I think our best case, Your Honor, is Richardson.

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And Richardson talks about where the charges are discreet and dissimilar on their face.

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that they can't be tried together.

[00:01:55] Speaker 03:
What is the standard that can be passed together?

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The three-part standard, senior brief.

[00:02:01] Speaker 00:
Oh, the three-part standard, there are three different elements under Rule A. If the cases are of the same or similar character, if they're based on the same act or transaction, or if they're connected with or part of a common scheme or plan.

[00:02:16] Speaker 03:
Well, in that third

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element there.

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This all began with one transaction or with one trip to Maryland and continuation from that and the phone calls resorted to that.

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Stuff taken back to the department.

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Why isn't that enough for joins?

[00:02:40] Speaker 00:
Well, Your Honor, I think primarily because the superseding indictment doesn't portray it as part of a common schema plan.

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If you keep in mind the procedural posture.

[00:02:51] Speaker 03:
Do you think the indictment has to use that language in order to make it adorable?

[00:02:56] Speaker 00:
No, I don't think there's any boilerplate or pro forma language it has to recite, but I think it has to portray

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events as part of a common scheme or plan, and if you think back to what the original indictment was, the original indictment was just two counts, not including marijuana.

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That count three was added several weeks later.

[00:03:16] Speaker 04:
Mr. Smith, nobody made any objection.

[00:03:18] Speaker 04:
I know you weren't trial counsel, but there was no motions in Luminae whatsoever filed in this case, is that right?

[00:03:26] Speaker 00:
Not by the defense, that's correct.

[00:03:28] Speaker 00:
There were, in our ineffective assistance argument, we raised that among the several items that we point to.

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And I think, just to jump over to that point briefly, to the extent that this court looks at the Rule 8A issue, or the Rule 14 issue, or the instruction for that matter, and decides that, well, there was legal error

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but it doesn't rise to the level of plain error, then I think that goes to prejudice under Strickland and the ineffective assistance claim.

[00:04:03] Speaker 03:
But that's a different issue.

[00:04:04] Speaker 03:
That's correct.

[00:04:06] Speaker 03:
We have to decide this Joinder issue on its own if there were no ineffective assistance issues, don't we?

[00:04:13] Speaker 03:
That's correct.

[00:04:14] Speaker 03:
OK, but there never was any objection raised to the particular point you're making, right?

[00:04:20] Speaker 03:
That's correct, Your Honor.

[00:04:20] Speaker 00:
OK, thanks.

[00:04:23] Speaker 00:
But we maintain that

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On the standard the court uses, which is the superseding indictment and under gooch, the pretrial filings, two of which the government has pointed to, there simply isn't enough to point to this as a common transaction, a common scheme.

[00:04:41] Speaker 04:
And I think even- But what about, I mean, as the government argues and as the trial judge narrated the situation,

[00:04:50] Speaker 04:
You have the defendant desperate for a ride, bringing a suitcase, a quick out and back, smelling of marijuana, going back to his home in DC.

[00:05:05] Speaker 04:
The narrative that it seems like the district judge is crediting that makes it part of

[00:05:12] Speaker 04:
connected or common scheme is that this urgency and the kidnapping wouldn't have occurred, or it doesn't even matter whether it wouldn't, but it was part of the getting of the marijuana for the related charge.

[00:05:29] Speaker 04:
And so what's your counter narrative that says actually these are really discreet?

[00:05:38] Speaker 00:
Well, to first give one quick procedural answer, obviously a lot of what the judge based that on was the trial evidence and his perception of the trial evidence, which clearly he oversaw and he had that perception.

[00:05:53] Speaker 00:
I think the main problem with that is it really requires the piling of an inference upon an inference because we don't know what was in the suitcase.

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We don't know what was in that bag.

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And so to accept the version of events that while you had this, you were out here 80 miles from home, you got this bag, you wanted to get home because you have a marijuana operation running out of your apartment, I think we have to infer what was in the bag and then we also have to infer what motivated him.

[00:06:21] Speaker 00:
And I think that's just too far of a logical leap.

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It would be a different case, I agree, if the contents of the bag had been established, but what

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The court did hear and also we raise the point with regard to sentencing.

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It's just too much of a logical leap based on the evidence.

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And I think the court has spoken previously in dormant to not

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permitting an inference stacked upon an inference, which I suggest is what happened here.

[00:06:54] Speaker 04:
So is it key to your case that the charge is possession, not trafficking?

[00:07:05] Speaker 00:
I wouldn't I would say no to that your honor what I would what I would suggest is perhaps more important is the fact that when you look at the kidnapping charge in the superseding indictment he's not alleged to have sought

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Interstate transportation for purposes of conducting drug activity or for purposes of trafficking in drugs.

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All it alleges is that he forced Mr. Flores to take him interstate.

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And there really is, when you look at the superseding indictment, there really is almost a watertight dichotomy between the marijuana charge and the others.

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And another point that I think is important for Richardson is it talks about evidentiary overlap being a key to join her and the notion of trial economy and convenience and here this

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would have easily made two separate trials, as we've listed in our brief.

[00:08:07] Speaker 00:
There was one set of witnesses and exhibits on the weapon and kidnapping charges.

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There was a completely different set of witnesses and exhibits on the marijuana charge.

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And the prejudice that Mr. Brown suffered from having both of those tried together is really at the heart of our argument.

[00:08:29] Speaker 04:
And if a district judge

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had severed the two counts and tried the kidnapping separately, and the government had wanted to introduce some evidence of drug activity to fill in for the jury what the motive was on defendant's part in wanting to travel quickly back.

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to DC, you think it would be a reversible error had that district judge decided to let in some evidence of the drugs?

[00:09:01] Speaker 00:
Well, Your Honor, I think the government would have to meet the test of McGill.

[00:09:06] Speaker 00:
They would have to show, look, we're not just offering this as propensity evidence.

[00:09:09] Speaker 00:
This is not to show that Mr. Brown is a drug dealer.

[00:09:11] Speaker 04:
No, but to show motive in this instance.

[00:09:14] Speaker 00:
That's correct.

[00:09:16] Speaker 00:
If they could fit it,

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under one of the exceptions to 404B and that would be litigated, then I think the trial judge would have to let it in.

[00:09:25] Speaker 00:
I don't think, I can't, I have a hard time imagining a circumstance in which 78 pounds of marijuana would be piled on the table.

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So I think that's a bit of a difference in that respect.

[00:09:44] Speaker 04:
I gather there are three separate counsel, post trial counsel, and now you, and you don't have any idea why Brown's post trial counsel didn't raise an ineffective assistance claim before the district court, and do you think that matters in terms of our review?

[00:10:00] Speaker 00:
Well, my understanding of this court's case law is that if a colorable claim is raised now on appeal, that the court can, if it's clear enough, the court can decide it as a matter of first instance, but what the court will sometimes do is remand.

[00:10:17] Speaker 03:
Yeah, isn't it possible and perhaps more appropriate for us to decide this appeal that's before us and then

[00:10:24] Speaker 03:
Assuming you lose, and I know it's a bad assumption to make and I don't mean them for it to extend beyond this sentence, but assuming that you lose on all the other issues, just go ahead and decide this case with the proviso in our opinion that we're not prejudicing any right of the defendant to collateral review on the question of ineffective assessment.

[00:10:44] Speaker 00:
I don't think that would be an unreasonable approach, Your Honor.

[00:10:47] Speaker 00:
I'm sorry?

[00:10:47] Speaker 00:
I don't think that would be an unreasonable approach.

[00:10:49] Speaker 00:
Thank you very much.

[00:10:51] Speaker 00:
The final point I'd like to make briefly on the removal of instruction 2.219.

[00:10:55] Speaker 00:
The government has made the point that, well, Mr. Flores testified that he thought prior to this incident that only victims of domestic violence could take advantage of the U visa program.

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And I would just suggest, I don't know that the evidence is that clear.

[00:11:13] Speaker 00:
I would direct the court to his testimony, which is at 183, 184 of the joint appendix.

[00:11:20] Speaker 00:
And he says he didn't know that it extended beyond domestic violence, quote, prior to this incident happening.

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And I think a lot depends on how you define this incident.

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If he means, you know, before I ever laid eyes on Shane Brown I didn't know, then that leaves open the possibility that speaking with his wife on the phone he could have found out, in which case I think the instruction becomes

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dead on point.

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So I would just point out that I don't think that testimony is quite as clear as perhaps it's been portrayed.

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Unless the court has any other questions, I would reserve the balance.

[00:11:54] Speaker 05:
I have one that's not, I'm sure it's not part of the record.

[00:11:56] Speaker 05:
Is Florey still in this country?

[00:11:59] Speaker 00:
I'm sorry, Your Honor?

[00:12:00] Speaker 05:
Is Florey still in this country?

[00:12:02] Speaker 00:
Your Honor, I don't know that.

[00:12:04] Speaker 00:
I have no idea the answer to that question.

[00:12:06] Speaker 00:
Perhaps the government does.

[00:12:07] Speaker 05:
All right.

[00:12:08] Speaker 00:
Thank you.

[00:12:11] Speaker 05:
Ms.

[00:12:11] Speaker 05:
Heffernan?

[00:12:16] Speaker 06:
May it please the court, Patricia Heffernan on behalf of the United States.

[00:12:23] Speaker 06:
focus the argument a bit in the sense of, with respect to Joinder, the Joinder is yet either waived or plain error.

[00:12:31] Speaker 06:
So the question is whether, at best, it should have been so clear and obvious to the district court that these offenses were misjoined, that the district court should have noticed it on its own, and Sue Espante severed the charges.

[00:12:48] Speaker 06:
So we're not looking at in terms of

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And so that burden is on the defendant to show, is on appellant to show that it was just so clearly and obviously that these offenses should not have been joined under 8A.

[00:13:06] Speaker 06:
And we think they can't make that showing in this case.

[00:13:09] Speaker 06:
And one of the questions I think that was asked had to do with

[00:13:16] Speaker 06:
What is the general point?

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And I think that the appellants, basically their argument is it's not a fair inference that the suitcase that he picked up in Maryland contained drugs.

[00:13:30] Speaker 06:
I think that's the heart of what their argument is.

[00:13:35] Speaker 06:
That it's not fair to infer that the suitcase that the appellant picked up in Maryland contained drugs.

[00:13:44] Speaker 04:
Was there any evidence whatsoever tying the suitcase that he got from Aberdeen to any of the suitcases in the apartment or to money or drugs?

[00:13:53] Speaker 06:
Well, he's got a suit.

[00:13:56] Speaker 06:
He's gone out to pick up.

[00:13:57] Speaker 06:
It's the totality of the circumstances.

[00:14:01] Speaker 04:
He's gone out to pick up the suit.

[00:14:02] Speaker 04:
So I gather the answer to my question is no, there isn't.

[00:14:05] Speaker 04:
We don't even have a photograph of this suitcase matching one in the apartment.

[00:14:10] Speaker 04:
We don't have any allegations.

[00:14:11] Speaker 04:
We have photographs of all the suitcases in the apartment.

[00:14:14] Speaker 04:
But no description from floors of the suitcase that Brown brought.

[00:14:18] Speaker 06:
He said it was a dark colored wheeled suitcase.

[00:14:21] Speaker 04:
But I didn't see any evidence that linked

[00:14:23] Speaker 04:
The that suitcase to those to the ones in the apartment.

[00:14:28] Speaker 06:
It's it's just like the other suitcases in the apartment and so and so we're talking about an interim in an inference so you can consider the totality of the circumstances and is it reasonable is it reasonable to conclude.

[00:14:40] Speaker 06:
that that suitcase that he went to pick up contained drugs or drug profits and we think it is based on the totality of circumstances the district court thought it was completely obvious that that was what he was up to when you consider everything not isolating out every piece of evidence and saying well this doesn't prove it and so we're done if we look at everything which is

[00:15:02] Speaker 06:
He's clearly transporting marijuana in suitcases, because he's got three suitcases stuffed with marijuana in his apartment.

[00:15:12] Speaker 06:
So that's a piece of the puzzle.

[00:15:13] Speaker 06:
Or somebody is.

[00:15:15] Speaker 04:
I mean, I don't think there's evidence that he was transporting those suitcases.

[00:15:18] Speaker 04:
Somebody is, and it's his.

[00:15:19] Speaker 06:
Well, we know he transports suitcases on some occasions, because he did that in this case.

[00:15:23] Speaker 04:
Right, but that's the question, is whether the assumption has been, whether there's evidence supporting it.

[00:15:28] Speaker 04:
Can you explain?

[00:15:29] Speaker 04:
I have the same question for you that I had for defense counsel.

[00:15:32] Speaker 04:
In fact, the cases had been severed.

[00:15:35] Speaker 04:
Would marijuana have been immiscible in the kidnapping case?

[00:15:38] Speaker 04:
And if so, can you walk me through how that would have been?

[00:15:41] Speaker 06:
Yes, because the drug trafficking is the motive for the kidnapping.

[00:15:45] Speaker 06:
It's a fair inference based on all of the evidence.

[00:15:49] Speaker 06:
The as your honor pointed out a quick trip up to Aberdeen Maryland that was very expensive going to meet somebody as soon as he meets somebody he comes out quickly.

[00:16:03] Speaker 06:
Demands a ride back to, he's angry that the round trip has been canceled because that's squashed his plans to get back to DC.

[00:16:11] Speaker 06:
Nonetheless, he won't take no for an answer.

[00:16:13] Speaker 06:
He insists on the ride.

[00:16:15] Speaker 06:
He gets in the car and he's, and he, when he can't sort of charm Mr. Flores into driving him home, that's when he pulls the gun and demands, and the kidnapping occurs and demands the ride back to DC and this is all

[00:16:30] Speaker 06:
And the inference is he's in such a rush because he's got contraband.

[00:16:35] Speaker 06:
And so the marijuana and the huge amounts of cash in the apartment is corroborative proof that this was a, that he was, this is all part of his drug trafficking.

[00:16:50] Speaker 04:
So it's your position that the government would have been able to introduce, I mean I'm just pushing you on, given what defense counsel has said,

[00:16:59] Speaker 04:
what was introduced was a lot of marijuana, an overwhelming pile of marijuana.

[00:17:05] Speaker 04:
Presumably, if counsel had perhaps done this differently for Mr. Brown, there would have been a stipulation that there was some drug that he had been involved in drug trade or with the suitcase.

[00:17:25] Speaker 04:
What happens do you really think as someone who

[00:17:29] Speaker 04:
In separate trials.

[00:17:30] Speaker 06:
Yeah.

[00:17:31] Speaker 06:
Yeah.

[00:17:31] Speaker 06:
I mean, I think that it might have been the case that the district court said, you know, we'll just we can bring all the pictures and we're not going to wheel all the marijuana and perhaps that would have happened.

[00:17:40] Speaker 06:
But that that, you know, that's not enough to say that that there's a reasonable probability of a different outcome.

[00:17:45] Speaker 04:
But we're just trying to get a handle on what the prejudice is or is not.

[00:17:49] Speaker 04:
Well, that's what I'm saying.

[00:17:49] Speaker 06:
I think you might have instead of had, I don't think that the district court would have abused its discretion in permitting the government as it did to just briefly show the jury the marijuana.

[00:18:01] Speaker 06:
But the court doesn't need to decide that because let's assume the court in a separate trial would have limited the government to photographs of all the marijuana.

[00:18:14] Speaker 06:
In this court assessing plain error prejudice, the fact that in separate trials the government would have introduced photographs of all the marijuana as opposed to all of the physical marijuana, the court can't say that that difference would have resulted in a reasonable probability of a different outcome at the kidnapping trial.

[00:18:34] Speaker 04:
Well, remember this is a case where the jury was

[00:18:37] Speaker 04:
had a hard time reaching a verdict on all but one of the counts.

[00:18:40] Speaker 04:
Presumably the one count they reached a verdict on was the drug count.

[00:18:44] Speaker 04:
There was no defense raised.

[00:18:45] Speaker 04:
And so they're really struggling with this, even with the evidence that was presented.

[00:18:50] Speaker 04:
So I do think it's important that we understand your position on what the evidence would have looked like had it been separate.

[00:19:00] Speaker 04:
And will you point me to where in the record the government made the link about the suitcase evidence and the suitcase that Flores testified to?

[00:19:14] Speaker 06:
I didn't see that tied up.

[00:19:16] Speaker 06:
In both the opening and closing arguments.

[00:19:18] Speaker 04:
Right, I saw that, but in the evidence, was there any witness or any evidentiary matter other than the argument?

[00:19:24] Speaker 06:
The witness, Mr. Flores, described the suitcase, and the suitcase looked just like the other suitcases that were found in the search warrant that were clearly in the apartment at the time that the defendant, the appellant, was making his trip, quick trip up to Aberdeen, Maryland and back.

[00:19:45] Speaker 06:
And then I just wanted to touch briefly, so moving away from Joinder if there are no further questions and hoping that the court focuses on the plain error standard at best as opposed to a discussion as though we're looking at this for abuse of discretion.

[00:19:59] Speaker 06:
Moving to the jury instruction, I just wanted to point out

[00:20:05] Speaker 06:
Again, this is where I'm playing the error review.

[00:20:09] Speaker 06:
The instruction was not requested, so it must be so clear and obvious that this instruction was warranted, let alone getting into the prejudice inquiry.

[00:20:18] Speaker 03:
Not just warranted, but required.

[00:20:19] Speaker 06:
Required, yes.

[00:20:20] Speaker 06:
Thank you.

[00:20:21] Speaker 06:
What I just wanted to point out is, I think if the jury had been told, you've heard evidence that Mr. Flores is under investigation.

[00:20:29] Speaker 06:
They would have been scratching their heads because that sounds in criminal like he's under criminal investigation.

[00:20:35] Speaker 06:
I think what as you listen to the argument appellant is making, I think what they really are saying is they wanted an instruction saying,

[00:20:44] Speaker 06:
You've heard evidence that he's in immigration proceedings, and you should consider that.

[00:20:49] Speaker 06:
But that's not the, again, he didn't request that instruction either, and they're not really, they haven't requested that in an appeal, but I think that's really what the argument, and that instruction wasn't requested either at trial or before this court, but I think that is sort of the heart of what they're getting at.

[00:21:05] Speaker 06:
That's what would make more sense.

[00:21:07] Speaker 06:
There are no further questions.

[00:21:10] Speaker 06:
We'd ask that the judgment be deferred.

[00:21:11] Speaker 03:
I would ask you one thing, although I'm the one who suggested maybe we don't want to decide the ineffectual assistance, but you seem to take your position in the brief that there was no problem with where the defendant had said, I would like to have my lawyer present with the interrogation continuing.

[00:21:28] Speaker 03:
I don't know what the record really shows.

[00:21:30] Speaker 03:
There may be a hypothetical question, but is that the government's position?

[00:21:34] Speaker 06:
I don't know what the record shows either because the interrogation wasn't in the record.

[00:21:40] Speaker 06:
Our position was, if that's so, and assuming that constitutes a true legal invocation in any event.

[00:21:50] Speaker 03:
Forget the part about assuming it constitutes a true legal implication.

[00:21:53] Speaker 03:
Assume that he said what the defense says he said.

[00:21:57] Speaker 03:
Is it the government's position that that would not violate his Miranda rights for the investigator to continue interrogating?

[00:22:07] Speaker 06:
We assumed that it did, and asked the court to look at Petain, which said that in any event,

[00:22:13] Speaker 06:
physical evidence wouldn't be required to be suppressed unless the statement was also involuntary and there's no evidence of that in the record.

[00:22:25] Speaker 06:
The government didn't introduce his statement.

[00:22:28] Speaker 03:
Yes.

[00:22:30] Speaker 05:
Do you know if Mr. Flores is still here?

[00:22:32] Speaker 05:
I believe he is.

[00:22:35] Speaker 05:
Thank you.

[00:22:42] Speaker 00:
Just very briefly, to your last point, Judge Sentel, the statements were used in the first search warrant.

[00:22:49] Speaker 00:
Yeah, they were used not in the trial, but in the first search warrant.

[00:22:51] Speaker 00:
Correct.

[00:22:52] Speaker 00:
That's correct.

[00:22:53] Speaker 00:
But I have nothing further.