1 

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-3061 September Term, 2023

 FILED ON: DECEMBER 14, 2023 

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) 

Before: RAO and CHILDS, Circuit Judges, and EDWARDS, Senior Circuit Judge. 

J U D G M E N T

The Court considered this appeal on the record from the United States District Court for 

the District of Columbia and on the briefs and oral arguments of the parties. The Court has afforded 

the issues full consideration and has determined that they do not warrant a published opinion. See

D.C. Cir. R. 36(d). For the reasons stated below, it is hereby

ORDERED AND ADJUDGED that the district court’s July 22, 2022, memorandum order 

be AFFIRMED. 

* * * 

Appellant Shane Browne was arrested in 2018 after Lyft driver Ulises Flores reported that 

Browne requested a one-way ride from Washington, D.C., to Aberdeen, Maryland, and then forced 

Flores at gunpoint to complete the drive back to Washington, D.C. A jury convicted Browne 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) at the ensuing trial. On appeal 

Browne moved for a new trial and judgment of acquittal, arguing ineffective assistance of counsel 

among other claims. We affirmed Browne’s conviction but remanded his colorable ineffective 

assistance claims because they had not previously been raised in the district court. United States 
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v. Browne, 953 F.3d 794, 804 (D.C. Cir. 2020). The district court conducted the remand 

proceedings and denied Browne’s motion for a new trial. United States v. Browne, 619 F. Supp. 

3d 100, 104 (D.D.C. 2022). We affirm the district court’s order. 

I.

“[W]e review de novo the District Court’s denial of [the defendant’s] claim of ineffective 

assistance of counsel, including the question whether [he] was prejudiced by [his] counsel’s 

allegedly deficient performance.” United States v. Nwoye, 824 F.3d 1129, 1134–35 (D.C. Cir. 2016) 

(citing United States v. Abney, 812 F.3d 1079, 1086–87 (D.C. Cir. 2016)). We “review for clear 

error any findings of historical fact embedded in the District Court’s conclusions on deficient 

performance and prejudice.” Id. at 1135 n.4. 

Browne must show (1) “that counsel’s performance was deficient,” and (2) “that the 

deficient performance prejudiced the defense” to establish a claim of ineffective assistance of 

counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficiency prong of Strickland 

requires a showing that, the lawyer’s performance “fell below an objective standard of 

reasonableness.” Id. at 688. The prejudice prong requires a “reasonable probability that but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 

694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 

Id.

Strickland provides a strong presumption of “reliability” under prevailing professional 

standards, and we give deference to the counsel’s strategic choices to the extent that “reasonable

professional judgment[] support[s] [a] limitation[] on [the] investigation.” Strickland, 466 U.S. at 

690–91. Even “choices made after [a] less than complete investigation are [deemed] reasonable . . .

to the extent that reasonable professional judgments support th[os]e limitations.” Id. at 691. 

Counsel’s choices are virtually unassailable by claimants if they are found to have been the result 

of reasonable professional judgment. Id. 690–91. In this regard, an attorney’s choice not to 

interview a potential witness is assessed for reasonableness under the circumstances, with a heavy 

measure of deference given to counsel’s judgments. United States v. Mohammed, 863 F.3d 885, 

890 (D.C. Cir. 2017) (citing Strickland, 466 U.S. at 691). 

A.

Browne makes several arguments on appeal that both of his counsel, Jason Kalafat and 

Sean Farrelly (together counsel), delivered ineffective assistance at the pretrial and trial stages. 

Browne’s arguments are not supported by the record and fail under Strickland’s framework. 

Browne alleges that his counsel failed to interview and subpoena two witnesses pretrial, 

Jordan Keslow and Bryant Sands. Pet’r’s Br. 30–35. Browne argues that the two witnesses could 

have provided testimony challenging the Government’s assertions that Browne was engaged in a 

kidnapping. Pet’r’s Br. 30–35. Browne’s trial counsel spoke with Keslow and determined that his

testimony would have limited value and made a choice not to call the witness. See Evid. Hr. Tr. 
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(Day 2) 10:6-7 (Testimony of Sean Farrelly) (Farrelly testified that he spoke with Keslow “at least 

once, ...maybe twice, before trial.”). Moreover, while neither counsel reached out to Sands, they 

knew from their investigation that Browne was on the phone with Sands during the trip on the way 

up to Aberdeen. J.A. 779–80. It is reasonable to assume that Sands’ testimony would have had 

limited value. Sands was not a witness to the crime because the alleged kidnapping occurred on 

the way back from Aberdeen. Unlike in Mohammed, where counsel completely failed to 

investigate any of the potential witnesses, Browne’s trial counsel assessed both witnesses’ 

impeachment and testimonial value. Mohammed, 863 F.3d at 890; see Decl. of Kalafat at 4–5; 

Decl. of Farrelly at 5–6. Counsel reasoned that testimony from these witnesses would undermine 

the defense’s efforts to illuminate the weaknesses of the Government’s case. Mohammed allows 

for such a choice. Mohammed, 863 F.3d at 890 (“Counsel reasonably may decline to investigate 

when she or he determines that any potential information an investigation might uncover would 

have limited value or ‘could be easily attacked on cross-examination.’”) (citing United States v. 

McDade, 699 F.3d 499, 507 (D.C. Cir. 2012)).

Browne next asserts that his counsel acted deficiently by failing to either object or 

challenge the Government’s introduction of seventy-eight pounds of narcotics evidence recovered 

from Browne’s apartment and brought into the courtroom during trial. J.A. 598. Counsel 

considered alternative options to exclude the evidence but decided not to pursue them because, as 

the district court correctly noted and Browne’s appellate counsel admitted at the evidentiary trial, 

the evidence was unlikely to be excluded. J.A. 1176. Instead, counsel strategically used the 

evidence to characterize Browne as “naïve” to entice the jury to convict Browne for the narcotics 

“given that he was obviously involved in criminal activity” while also allowing them to acquit him 

on the other charges. J.A. 1196–97. Counsel’s defense strategy, while risky, was not outside the 

realm of reasonable professional judgment. Indeed, such conduct does not meet the high bar of 

Strickland. 466 U.S. at 689. Strickland grants significant deference to attorneys’ decisions 

following a thorough consideration of the law and facts. Id. at 690-91. Likewise, counsel did not 

err in failing to advise Browne of the possibility of a blind plea because the prosecution never 

offered Browne a formal single-count plea on the marijuana charge. J.A. 1197. In sum, counsel’s

conduct is shielded under Strickland. 

Browne further alleges that his counsel unreasonably failed to publish to the jury the 

browser history from his cell phone showing adult web searches during the time of kidnapping1

; 

failed to object to leading questions during the direct examination of the victim, Mr. Flores; failed 

to object to the removal of specific jury instructions; and failed to submit a defense theory at 

closing. Pet’r’s Br. 27–37. 

Browne’s trial counsel testified that he reviewed the phone record information with Browne. 

See Decl. of Kalafat at 6; Decl. of Farrelly at 7. The district court did not commit error in 

concluding that this testimony was credible.2

 J.A. 1186. We also highlight the district court’s 

1 Browne argues that “some jurors would totally [have] reject[ed] any inference that he was pointing a gun at 

Flores and viewing those photos at the same time.” Pet’r’s Br. 37. 2 The district court found both Browne’s trial counsel, Kalafat and Farrelly, to be credible witnesses who gave 

well-supported testimony. J.A. 1186.
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conclusions that “a jury could have drawn [an] inculpatory inference[] from Browne seeking out 

illegal prostitution.” J.A. 1199. Here, counsel did not use the phone records because they 

concluded that the records were not particularly relevant and would go against their defense 

strategy. See Decl. of Kalafat at 6; Decl. of Farrelly at 7. Because we find that counsel investigated 

the phone records, we do not find that they were deficient by failing to offer the adult website 

searches. 

The district court did not err in determining that it was reasonable for counsel to refrain

from objecting to the Government’s leading questions to Flores given that such objections would 

not have excluded Flores’s testimony. J.A. 1200. Counsel reasonably concluded that it would 

have only prolonged the testimony and ran the risk of creating a negative impression in front of 

the jury. Id. 

Browne’s argument that his counsel failed to object to the removal of two jury 

instructions—Instructions 2.2193 and 2.1114

—also fails to show ineffective assistance. This court 

has already rejected a connected argument related to Instruction 2.219 in the direct appeal. See 

Browne, 953 F.3d at 800–02 (rejecting Browne’s argument and holding that any error in giving 

only a general instruction on witness credibility and potential for bias instead of issuing Instruction 

2.219 was not plain error). Browne now changes his argument slightly and makes the unsupported 

argument that his counsel erroneously failed to object to Instruction 2.219 because they did not 

properly review the Government’s discovery, which Browne argues contains information that 

Flores was placed in immigration removal proceedings. J.A. 148–151, 743. However, there was 

no pending case or investigation against Flores. Id. Flores was in the deferred action program at 

the time of trial and thus was not in removal proceedings.5

 Id. Moreover, Flores had not completed 

his U-visa6 application, so he was not under investigation. Browne did not sufficiently plead that 

Flores was under investigation. Browne also failed to cite any authority supporting his argument 

that Instruction 2.219 covers U-visa applicants.7

 Id. at 802. In any event, the district court issued 

standard jury instructions related to witness credibility and bias, and in their closing arguments, 

Browne’s trial counsel highlighted that Flores had a potential motive to allege he was the victim 

of violent crime. J.A. 703, 709. Thus, trial counsel reasonably declined to insist on a jury 

3 Jury Instruction 2.219 concerns impeachment by a pending case or investigation and informs a jury if a 

witness is “under investigation,” so that the jury may consider that fact in assessing “whether the witness has a bias in 

favor of one of the parties that may affect his/her willingness to tell the truth.” Criminal Jury Instructions for the 

District of Columbia § 2.219 (2019). 4 Jury Instruction 2.111 addresses imbalance of witnesses. See Criminal Jury Instructions for the District of 

Columbia § 2.111 (2019). 5 Flores was approved for deferred action on March 1, 2018. This is after he was initially given an order of 

release on recognizance on February 12, 2018, which stated that he “had been arrested and placed in removal 

proceedings.” J.A. 739, 743. 6 The U nonimmigrant status (U-visa) provides victims of certain crimes who have suffered mental or 

physical abuse an opportunity to obtain legal-resident status by assisting law enforcement or government officials in 

the investigation or prosecution of criminal activity. See Browne, 953 F. 3d at 801. 7 See Browne, 953 F.3d at 802 (“Moreover, Browne failed to cite any authority that affirmatively supports his 

argument that instruction 2.219 covers U-[v]isa applicants in the first place. Nor have we found any case stating that 

instruction 2.219 applies to testimony from U-[v]isa applicants during our own review. Absent legal authority stating 

such, it is not clear that U-[v]isa applicants are even ‘under investigation’ within the meaning of instruction 2.219.”).
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instruction that was inapplicable. See United States v. Gray-Burriss, 920 F.3d 61, 66 (D.C. Cir. 

2019) (holding that counsel is not ineffective for failing to request a jury instruction where there 

was no evidentiary basis for it). 

Counsel chose to emphasize a reasonable-doubt defense, instead of offering an affirmative 

one, which informed the choice not to object to Instruction 2.111’s removal. J.A. 882–83. Counsel 

explained that he did not see any need to object to the instruction’s removal because it could only 

reinforce to the jury that the Government had called more witnesses. Id. Because the standard 

instructions adequately focused the jury on witness bias and credibility, Browne has not shown 

that counsel was deficient for failing to insist on Instruction 2.111. 

Browne argues that his trial counsel erred by not presenting an affirmative defense that 

Flores “concocted th[e] false allegation of armed kidnapping to obtain eligibility for a U-visa.” 

Pet’r’s Br. 52. This tactic was also informed by the same trial strategy to emphasize a reasonabledoubt defense instead of offering one based on affirmative evidence. J.A. 788, 798, 880–82, 1016–

17. Browne’s counsel made it clear in his closing arguments that the jury should consider Flores’ 

immigration status as a potential source of bias and a reason not to credit his testimony. J.A. 703, 

709. Thus, the jury was aware that it could consider Flores’ immigration status in weighing his 

credibility. The district court did not commit error in finding trial counsel’s strategy to be 

“reasonable.” J.A. 1198. 

Browne’s remaining pre-trial and trial arguments fail because they were either properly 

rejected by this Court on direct appeal or because such actions or omissions were part of counsel’s 

overall defense strategy made after a sufficient consideration of the law and facts of this case. 

We need not assess the prejudice prong under Strickland because Browne has failed to 

show that counsel’s performance was deficient. United States v. Glover, 872 F.3d 625, 630 (D.C. 

Cir. 2017) (“A court can deny an ineffectiveness claim on either the deficiency or prejudice 

prong.”). 

For the foregoing reasons, we conclude that Browne’s claims of ineffective assistance lack 

merit and affirm the order of the district court denying Browne’s motion for a new trial. 

* * * 

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is 

directed to withhold issuance of the mandate herein until seven days after resolution of any timely 

petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).

Per Curiam
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FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk