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 the trunk. Flores got out of the car to confront
Browne, but Browne shook Flores’s hand and asked Flores to
drive him home. Flores refused, but Browne entered the car
anyway and Flores followed. Flores testified that, once in the
car, Browne put a gun to his head and told him to drive back to
Browne’s apartment in D.C.

     Flores recounted that Browne kept the gun next to his head
for the entire drive. During this time, he again overheard
Browne on his phone, this time letting someone know that
“Ulises” was driving him home. J.A. 162–63. Although he did
not use the Lyft app on the return trip, Flores was able to email
Lyft while Browne was distracted and ask someone to call the
police because he was “in trouble.” J.A. 164–65. When they
arrived back at Browne’s apartment, Browne gave Flores $100
and retrieved the suitcase.

     Flores drove several blocks and then called Lyft again.
While on hold with Lyft, he connected to OnStar and described
the situation. The OnStar operator offered to call 911. Flores
                               4
initially refused but after a few minutes accepted the offer and
spoke with police. He explained the incident and stated that he
thought Browne was a drug dealer.

    Later that evening, police arrested Browne at his
apartment. The officers noticed a strong smell of marijuana
coming from Browne’s apartment, and Browne told them that
he had been smoking marijuana. The police did not
immediately search Browne’s apartment, but did search other
areas of the apartment building looking for a gun or
ammunition.

     The next day, after gathering more information and
interrogating Browne, officers obtained and executed a search
warrant for Browne’s apartment. In the apartment, police
found a money counter, a heat sealer, drug paraphernalia, more
than $35,000 in cash, and seven suitcases and other
containers—some of which were filled with heat-sealed bags
containing marijuana.      In total, the police recovered
approximately 78 pounds of marijuana in Browne’s apartment,
but never found a gun in the apartment or the surrounding
areas.

     On February 27, 2018, the government filed a superseding
indictment, charging Browne with kidnapping in violation of
18 U.S.C. § 1201(a); using, carrying, possessing, and
brandishing a firearm during a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A)(ii); unlawful possession with intent
to distribute marijuana in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(D); kidnapping while armed in violation of D.C. Code
§§ 22-2001, 4502; two counts of possession of a firearm during
a crime of violence or dangerous offense in violation of D.C.
Code § 22-4505(b); and assault with a dangerous weapon in
violation of D.C. Code § 22-402. After a jury trial, Browne
was convicted of federal kidnapping and unlawful possession
                               5
of marijuana with intent to distribute, but acquitted of all
firearms charges.

     As the trial transcripts make apparent, in its Presentence
and Investigation Report (“PSR”), the probation office
calculated an adjusted offense level of 34 for the kidnapping
conviction under the U.S. Sentencing Guidelines. Specifically,
it concluded that the base offense level for kidnapping is 32 and
that a two-level increase could be applied if a dangerous
weapon was used. It also calculated an adjusted offense level
of 16 for the marijuana conviction. Based on this calculation,
the Sentencing Guidelines imprisonment range was 151
months to 188 months for the kidnapping conviction and 60
months for the marijuana conviction.

     The district court ultimately sentenced Browne to
concurrent terms of 176 months for kidnapping and 60 months
for unlawful possession with intent to distribute marijuana.
The court found by a preponderance of the evidence that
Browne used a dangerous weapon in the kidnapping, despite
the jury’s acquittal on all firearms charges. Based on this
finding, the court increased the base offense level by two levels
as recommended in the PSR. In determining the final sentence,
the district court also found that the kidnapping was in
furtherance of Browne’s drug trafficking, which it concluded
was an aggravating factor for the kidnapping.

   II.     DISCUSSION

      On appeal, Browne presents issues which he did not raise
at trial. Under Federal Rule of Criminal Procedure 52(b), “[a]
plain error that affects substantial rights may be considered
even though it was not brought to the [district] court’s
attention.” To demonstrate plain error, the appellant must
satisfy three requirements: “First, there must be an error that
                                6
has not been intentionally relinquished or abandoned. Second,
the error must be plain—that is to say, clear or obvious. Third,
the error must have affected the defendant’s substantial rights,
which in the ordinary case means he or she must ‘show a
reasonable probability that, but for the error,’ the outcome of
the proceeding would have been different.” Molina-Martinez
v. United States, 

, 1343 (2016) (internal
citations omitted) (quoting United States v. Dominguez
Benitez, 

, 83 (2004)). If all three conditions are
satisfied, “the court of appeals should exercise its discretion to
correct the forfeited error if the error ‘seriously affects the
fairness, integrity or public reputation of judicial
proceedings.’”

States v. Olano, 

, 736 (1993)).

       A. Joinder and Severance

      First, Browne argues that the kidnapping and drug-related
charges were improperly joined. At no time before or during
trial did Browne object to the joinder of the charges or move
for a severance. There is of course nothing inherently
erroneous about including multiple charges in one indictment.
“[An] indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses
charged—whether felonies or misdemeanors or both—are of
the same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a
common scheme or plan.” Fed. R. Crim. P. 8(a).

      Rule 8(a) is construed liberally, but we have emphasized
it “is not infinitely malleable: it cannot be stretched to cover
offenses . . . which are discrete and dissimilar and which do not
constitute parts of a common scheme or plan.” United States
v. Richardson, 

, 733 (D.C. Cir. 1998). In
Richardson, we explained that “a ‘but for’ sequential
                               7
relationship” does not create a logical relationship between
“offenses discrete and dissimilar on their faces.”

Such “[o]ffenses do not become logically related solely by way
of an intervening arrest; that is, the fact that an intervening
arrest brings preceding and succeeding offenses together
temporally or precipitatively simply does not suffice to create
the logical relationship contemplated by Rule 8.”

of whether the charges are properly joined “focuses
solely on the indictment and pre-trial submissions,” not the
evidence introduced at trial. United States v. Gooch, 

, 1334 (D.C. Cir. 2012). Further, even if counts are
properly joined, the district court retains discretion to sever
them and order separate trials “[i]f joinder . . . appears to
prejudice a defendant.” Fed. R. Crim. P. 14(a).

     Specifically, Browne argues that the superseding
indictment does not depict the kidnapping and drug-related
charges as one transaction. He asserts that, beyond the
intervening arrest, there is no logical relationship between the
sets of charges. He argues that despite his failure to move for
severance, the district court erred because it did not sua sponte
sever the charges and order separate trials. We disagree.

     From the discussion above, it is obvious that the question
of severance of charges in an indictment is not one that presents
a bright line jumping to the eyes of a trial judge and alerting
him that he should immediately sua sponte save the defendant
from himself by presenting a remedy he has not asked for in
order to resolve a problem to which he has not objected. On
the record, it was not plainly erroneous to conclude that the
kidnapping and drug-related charges “are connected with or
constitute parts of a common scheme or plan.” Fed. R. Crim.
P. 8(a). After arriving at the McDonald’s in Aberdeen, Browne
returned to Flores’s car and placed a suitcase in the trunk.
According to the joint statement of the case, he then held Flores
                                8
at gunpoint as he directed Flores to drive him back to his
apartment in Washington, D.C. J.A. 67. The next day, the
police executed a search warrant at Browne’s apartment and
“recovered approximately 78 pounds of marijuana,
approximately $35,000 in currency, a cash-counting machine,
and other items.” J.A. 68. When the officers executed the
search warrant, “they found more than 40 pounds of suspected
marijuana distributed among a number of items, including
several suitcases. When the defendant went up to Maryland,
he returned with a suitcase he had not had in his original
possession.” Supplemental Appendix (“S.A.”) 2. Thus, unlike
the situation in 

, the presence of suitcases
during the kidnapping and at the apartment meant that it was
not solely the but-for connection that brought the two charges
together. Rather, the charges could be seen as connected by
those common items and their evident utility in transporting
marijuana. And trying the charges together was not so clearly
prejudicial to Browne to warrant sua sponte “order[ing]
separate trials of counts.” Fed. R. Crim. P. 14(a).

    As we stated earlier, there is no plain error here, and indeed
we are not concluding that there was error at all in the district
court’s failure to sua sponte sever Browne’s charges under
Rule 8(a) or Rule 14.

       B. Federal Rules of Evidence

     Related to his severance argument, Browne attempts to
demonstrate prejudice from the joinder by asserting that the
introduction of the drug offense evidence before a jury also
trying the kidnapping offense violated his rights under the
Federal Rules of Evidence. In part, Browne notes that, even
though he did not put on a defense against the unlawful
possession of marijuana with intent to distribute charge, the
government was allowed to introduce the 78 pounds of
                                9
marijuana recovered from his apartment. He asserts that
introducing that evidence violated Rule 403 because it was
more prejudicial than probative, Fed. R. Evid. 403; violated
Rule 404 because it was introduced only to show his propensity
towards criminal behavior, Fed. R. Evid. 404; and violated
Rules 401 and 402 because it was irrelevant to the kidnapping
charge, Fed. R. Evid. 401–402.

     In light of our holding that there was no plain error in the
failure to sever, however, the drug evidence was clearly
relevant and admissible to prove that Browne unlawfully
possessed marijuana with intent to distribute. Browne’s claim
that he did not mount a defense to the marijuana charge does
not change the calculus. He pleaded not guilty. The
government was obligated to prove the charge beyond a
reasonable doubt. The evidence introduced was relevant to that
charge. There was no plain error in the joinder, and there was
no plain error in the admission of the evidence. Rare indeed
would the case be in which we would find plain error in a
judge’s failure to sua sponte exclude evidence. Certainly, it is
possible that such a case occurs from time to time, but this is
not it.

       C. Jury Instruction 2.219

     The joint proposed jury instructions included instruction
2.219, titled “Impeachment by Proof of a Pending Case,
Probation, or Parole–Witness.” J.A. 62–63. That instruction
informs the jury that if a witness is “under investigation,” it
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.” 1 Crim. Jury Instructions for D.C.
Instruction 2.219 (Lexis ed. 2019). After reviewing the
proposed jury instructions, the district court decided not to
issue instruction 2.219 because it did not think that the
                                10
instruction applied to any witness. Neither party objected to
the court’s decision at that time. Browne first raised the issue
post-trial in a motion for a new trial, but the district court
denied that motion. On appeal, Browne argues again that the
district court erred when it struck instruction 2.219.

     Relevant to this issue, Flores is a native of El Salvador. He
entered the United States on a visa in 2008 and stayed in the
country after it expired. After he testified before the grand jury,
Flores decided to participate in the U-Visa program, which
allows a victim of a violent crime to obtain legal-resident status
by cooperating in the prosecution of that crime. As part of the
U-Visa program, a law enforcement agency must certify that
the applicant is aiding an investigation of a crime, and the U.S.
Customs and Immigration Service must conduct its own
investigation to determine whether the applicant is eligible for
a U Visa. See generally 8 C.F.R. § 214.14. At trial, Flores
testified that he had begun but not yet completed his U-Visa
application.

     Rather than issuing instruction 2.219, the court instead
issued standard jury instructions related to witness credibility
and potential for bias. The court instructed the jury:

        You alone are the sole judges of the credibility
        of the witnesses. You alone determine whether
        to believe any witnesses and the extent to which
        a witness should be believed. . . .

        You may consider anything that in your
        judgment affects the credibility of any witness.
        For example, you may consider . . . whether the
        witness has any motive for not telling the truth
        . . . [and] whether the witness has any interest in
        the outcome of this case, or friendship or
                                11
        hostility toward other people concerned with
        this case. . . .

        You      should      consider     whether     any
        inconsistencies are the result of different
        individuals seeing, hearing or recollecting
        things differently or the result of actual
        forgetfulness or the result of innocent mistake
        or the result of intentional falsehood. . . .

        If you believe that any witness has shown him
        or herself to be biased for or against either side
        in this trial, you may consider and determine
        whether such bias or prejudice has colored the
        testimony of this witness so as to affect the
        desire and capability of that witness to tell the
        truth.

S.A. 126–28.

     When presented with a motion for a new trial, the court
has broad discretion to “vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R. Crim. P.
33(a). As to the jury instructions, the general rule is that “[a]s
long as a district judge’s instructions are legally correct[,] . . .
he is not required to give them in any particular language.”
Miller v. Poretsky, 

, 788 (D.C. Cir. 1978).
Further, “jury instructions are not considered erroneous if,
when viewed as a whole, ‘they fairly present the applicable
legal principles and standards.’” Joy v. Bell Helicopter
Textron, Inc., 

, 556 (D.C. Cir. 1993) (quoting
EEOC v. Atl. Cmty. Sch. Dist., 

, 436 (8th Cir.
1989)). Again, because the omission of instruction 2.219 was
not raised until after trial, we review for plain error.
                                 12
     At the core of Browne’s complaint, he is concerned that
the court did not appropriately focus the jury’s attention on
Flores’s potential for bias. See Comment to 1 Crim. Jury
Instructions for D.C. Instruction 2.219 (Lexis ed. 2019) (noting
that instruction 2.219 is appropriate if “the circumstances
indicate that bias may exist”). Browne does not assert that the
district court issued instructions that misstated the elements of
the charged crimes or misstated the appropriate legal standard
to be applied, for example. Instead, the gist of his concern is
that the issued instructions did not single out Flores’s potential
for bias resulting from his immigration status in the way that
instruction 2.219 would. See 

. But, as
stated previously, “[a]s long as . . . [the] instructions are legally
correct[,] . . . [the judge] is not required to give them in any
particular language.”

case, the issued instructions clearly focused the
jury’s attention on the issues of witness credibility, bias, and
motive to falsify testimony. Moreover, Browne has failed to
cite any authority that affirmatively supports his argument that
instruction 2.219 covers U-Visa applicants in the first place.
Nor have we found any case stating that instruction 2.219
applies to testimony from U-Visa applicants during our own
review. Absent legal authority stating such, it is not clear that
U-Visa applicants are even “under investigation” within the
meaning of instruction 2.219. Accordingly, the court did not
clearly or obviously err when it decided to strike the
instruction. Therefore, Browne has failed to demonstrate that
the district court committed plain error when it refused to
exercise its discretion to grant a new trial based on the
exclusion of instruction 2.219.
                               13
       D. Sentencing

     During his sentencing hearing, Browne objected to the
district court’s finding by a preponderance of the evidence that
Browne had a gun during the kidnapping, arguing that it
violated the Sixth Amendment and due process because the
jury acquitted him of all gun-related charges. Similarly,
Browne argues that the judge’s finding that the kidnapping was
in furtherance of drug trafficking violates the Sixth
Amendment and due process because this was uncharged and
unlitigated conduct.

      Browne concedes that circuit precedent allows the district
court to base its sentence on acquitted or uncharged conduct if
it finds by a preponderance of the evidence that the conduct
occurred, United States v. Kpodi, 

, 126 (D.C. Cir.
2016), but he argues that this precedent violates the Sixth
Amendment and due process, see Appellant’s Br. 43–44 (citing
United States v. Bell, 

, 929–30 (D.C. Cir. 2015)
(Millett, J., concurring in the denial of rehearing en banc)); see
generally United States v. Norman, 

, 811 (D.C.
Cir. 2019) (noting criticism of reliance on acquitted or
uncharged conduct at sentencing), cert. filed, No. 19-6589
(Nov. 12, 2019);

(Henderson, J., concurring)
(defending soundness of precedent). Because Browne’s
argument is at odds with the current state of the law, we cannot
conclude that the district court erred when it considered
acquitted and uncharged conduct in imposing Browne’s
sentence.

     Further, Browne argues that the finding that the
kidnapping was in furtherance of drug trafficking was error
because there was no evidence presented to support that
finding. See Appellant’s Br. 42 (quoting United States v.
Petlechkov, 

, 770 (6th Cir. 2019) (“No evidence
                                14
cannot be a preponderance of the evidence.”)). Browne never
objected to this second finding before or at sentencing. Thus,
we review the court’s decision to base the sentence on that issue
for plain error.

     Browne relies predominantly on Kpodi and United States
v. Smith, 

(D.C. Cir. 2001), to support this
argument. Pre-trial, the district court in Kpodi ruled evidence
inadmissible under Federal Rule of Evidence 404(b)(2)
because it held that the “evidence, standing alone, did not
support the Government’s inference that Kpodi fired a gun
during the shootings or held a weapon while fleeing.” 

. But at sentencing, the Kpodi court found that
same evidence persuasive to support its “inference that Kpodi
either fired a weapon, was holding a gun while fleeing or even
participated in the . . . shooting.”

The district court
then explicitly relied on that inference when determining the
appropriate sentence.

Because the district court
“switched course” between the evidentiary ruling and
sentencing, we held that the district court’s reliance on that
evidence at sentencing was clearly erroneous.

     In Smith, relying on uncharged conduct, the district court
applied a three-level upward departure from the recommended
sentence under the U.S. Sentencing Guidelines. 

. We noted that the district court specifically found
that “the defendant’s commission of other crimes on persons or
entities in the course of committing the offenses of conviction
justified a departure.”

marks omitted).
This court explained that “in order to satisfy due process such
conduct must be proven by a[t] least a preponderance of the
evidence.”

We vacated the sentence because the
district court sentenced the defendant “exactly as if he had
actually been convicted of [the uncharged conduct]” and the
government had failed to prove “under any standard of proof”
                               15
that the defendant could have been convicted of at least one of
the uncharged crimes as it had failed to produce any evidence
related to an element of that crime.

     Unlike Kpodi, the court in this case never passed upon the
admissibility of any evidence related to whether the kidnapping
was in furtherance of drug trafficking. We are thus not faced
with a situation in which the district court adopted conflicting
views of the same evidence. Additionally, unlike Smith, we are
not faced with a situation in which the district court relied on
uncharged conduct to justify an upward departure from the
Sentencing Guidelines. Instead, the district court found that the
defendant’s drug trafficking was one of many aggravating
factors on the kidnapping conviction and then imposed a
within-guidelines sentence. Further, the district court’s
inference that the kidnapping was in furtherance of Browne’s
drug trafficking was entirely reasonable given the evidence
before it. Accordingly, we hold that the court did not clearly
or obviously err when it relied on that inference at sentencing.

       E. Ineffective Assistance of Counsel

    Finally, Browne asserts a variety of ineffective assistance
of counsel claims for the first time on appeal. He argues that
his attorneys were ineffective in trial preparation, witness
examination, and failing to raise the issues now raised in this
appeal, including improper joinder, failure to sever, and
admissibility of evidence. Perhaps most significantly, he
argues that his Miranda rights were violated because the police
continued to question him after he requested an attorney.

     To succeed on an ineffective assistance of counsel claim,
Browne must first show that his counsels’ performance was
deficient, meaning that “counsel’s representation fell below an
objective standard of reasonableness.”          Strickland v.
                               16
Washington, 

, 688 (1984). Second, Browne “must
show that the deficient performance prejudiced the defense,”

meaning “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different,”

     “When an ineffective-assistance claim is brought on direct
appeal, appellate counsel and the court must proceed on a trial
record not developed precisely for the object of litigating or
preserving the claim and thus often incomplete or inadequate
for this purpose.” Massaro v. United States, 

,
504–05 (2003); see also United States v. Rashad, 

,
909 (D.C. Cir. 2003) (noting it is likely, “when a defendant
asserts his sixth amendment claim for the first time on direct
appeal, that the relevant facts will not be part of the trial
record”). Thus, “this court’s ‘general practice is to remand the
claim for an evidentiary hearing’ unless ‘the trial record alone
conclusively shows’ that the defendant either is or is not
entitled to relief.” 

–10 (quoting United
States v. Fennell, 

, 1303–04 (D.C. Cir. 1995)).
The critical inquiry at this stage is whether the record
conclusively demonstrates that Browne could not establish an
ineffective assistance of counsel claim if given the opportunity
to do so on remand. See

     Browne argues that the police continued to question him
after he requested an attorney, thereby violating his Miranda
rights. See Edwards v. Arizona, 

, 484–85 (1981).
He alleges that his statements in response to those questions led
to the search warrant, rendering that warrant invalid and
necessitating the suppression of any evidence obtained from a
search pursuant to it. Browne’s other ineffective assistance of
counsel claims relate to his attorneys’ failures to challenge
other deficiencies with the search warrant, argue the charges
were improperly joined, request severance, advise about the
                               17
possibility of a blind plea on the marijuana charge, adequately
prepare for trial, conduct sufficient witness examinations, seek
evidentiary exclusions, advocate for proper jury instructions,
and conduct a sufficient investigation into witness
backgrounds.

     Because Browne has raised a colorable claim of
ineffective assistance of counsel, we remand to the district
court to develop a record and assess those claims in the first
instance.

   III.    Conclusion

    For the foregoing reasons, we affirm the various
challenged rulings of the district court, and, consistent with our
usual practice, we remand the ineffective assistance of counsel
claims to the district court.

                                                     So ordered.