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. 2 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 ...
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