United States v. Daraya Marshall ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 23, 2019 Decided January 7, 2020
No. 18-3012
UNITED STATES OF AMERICA,
APPELLEE
v.
DARAYA MARSHALL, ALSO KNOWN AS DEE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00117-1)
Mary E. Davis, appointed by the court, argued the cause
and filed the brief for appellant.
Daniel Honold, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman and Chrisellen R. Kolb,
Assistant U.S. Attorneys.
Before: MILLETT and RAO, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
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RAO, Circuit Judge: Daraya Marshall pleaded guilty to six
counts of sex trafficking and related crimes against minors. On
direct appeal from the resulting conviction and sentencing,
Marshall alleges ineffective assistance of counsel in violation
of the Sixth Amendment and seeks remand for an evidentiary
hearing to determine whether his lawyers’ failure to object to
the qualifications of an expert witness rendered his plea
involuntary. Because the existing record leaves no doubt this
failure to object was not ineffective assistance of counsel, we
affirm the conviction.
I.
Marshall stipulated to the underlying facts of his offenses
during the plea colloquy with the district court. From July 2014
to June 2015, Marshall prostituted six or more women and girls
by collecting money paid for sex during “in calls” at his home
in the District of Columbia and “out calls” throughout the
District of Columbia, Maryland, and Virginia. Four of these
victims were underage girls between the ages of fourteen and
seventeen who Marshall targeted and recruited through various
forms of psychological manipulation. Marshall produced
pornographic images of the girls on his cell phone and used
these images to solicit “clients” online. In several cases,
Marshall also engaged in sex acts with the underage victims.
After his arrest, the government indicted Marshall before
the District Court for the District of Columbia on fifteen felony
counts, including four counts of sex trafficking of children, 18
U.S.C. § 1591(a), three counts of transportation of minors for
prostitution, 18 U.S.C. § 2423(a), five counts of sexual
exploitation of a minor, 18 U.S.C. § 2251(a), one count of
possession of child pornography, 18 U.S.C. § 2252(a)(4)(B),
(b)(2), two counts of first-degree child sexual abuse with
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aggravating circumstances, D.C. CODE §§ 22–3008, 22–
3020(a)(2), (a)(5), and corresponding forfeiture allegations.
Marshall struggled to build a workable relationship with
several court-appointed attorneys in the two years of pre-trial
motions that followed. The federal public defender initially
appointed to the case withdrew, prompting the district court to
appoint attorney Joanne Slaight from the Criminal Justice Act
panel. Slaight successfully moved for appointment of co-
counsel to assist with complexities in discovery, but that
counsel subsequently withdrew when Marshall moved ex parte
for substitution. The court then appointed Joseph Conte as
replacement co-counsel. Slaight, later joined by Conte, filed
multiple suppression and severance motions to bolster
Marshall’s defense and sought dismissal of the indictment as
a whole. Marshall was displeased when many of these motions
proved unsuccessful and expressed general dissatisfaction with
the criminal justice system in two ex parte colloquies with the
district court. In each instance the court conducted an inquiry
into Marshall’s concerns and found no legal error on the part
of Slaight or Conte.
This appeal concerns the proposed expert testimony of
Dr. Sharon Cooper, a pediatrician with nearly twenty-five
years’ experience working with child victims of sexual
exploitation. As part of the Brady materials and witness
disclosures provided in anticipation of trial, the government
notified Marshall of its intent to call Dr. Cooper as an expert
witness on “the nature and structure of a sex trafficking
operation,” including “recruitment, grooming, manipulation
and control” of sex trafficking victims. The government’s
notice included a ninety-one-page curriculum vitae describing
her medical licensing, faculty affiliations, and academic
publications on the dynamics of sex trafficking.
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Slaight and Conte moved in limine on July 27, 2017, to
exclude Dr. Cooper on three grounds: inadequate notice under
Federal Rule of Criminal Procedure 16(a)(1)(G); unhelpfulness
to the finder of fact under Federal Rule of Evidence 702(a); and
the tendency of her testimony on victim psychology to
prejudice Marshall unfairly and confuse the jury as to what
facts need be proven to support a verdict of guilty. See FED. R.
EVID. 403. The district court denied the motion on the first two
challenges at a hearing on October 6 but accepted counsel’s
arguments as to the third at pretrial conference on October 12.
To minimize the risk of unfairly bolstering the fact witnesses,
the court scheduled Dr. Cooper to testify after the minor
victims and limited the scope of her testimony.
Marshall pleaded guilty just before jury selection on the
October 16, 2017, trial date. Pursuant to a written plea
agreement, the government dropped nine of fifteen counts and
recommended a two-point offense level reduction under the
U.S. Sentencing Guidelines for acceptance of responsibility.
See U.S.S.G. § 3E1.1. The district court accepted the plea
agreement after a colloquy confirmed Marshall’s waiver of
rights was knowing and voluntary and supported by advice of
counsel. After considering Slaight and Conte’s submissions on
Marshall’s behalf, as well as denying a final ex parte motion
for continuance and new counsel, the district court sentenced
Marshall to twenty-five years’ imprisonment.
II.
On direct appeal and represented by new counsel, Marshall
argues that Slaight and Conte’s failure to object to Dr. Cooper’s
qualifications induced the district court to allow the expert
testimony and, in turn, compelled Marshall to plead guilty. He
requests remand for an evidentiary hearing to determine
whether error by counsel violated the Sixth Amendment and
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requires overturning his plea as involuntary. The government
responds that Marshall fails to raise a colorable claim of
ineffective assistance because the existing record conclusively
shows trial counsel did not err.
A.
Guilty pleas may support conviction only when the
defendant’s waiver of trial rights is knowing and voluntary. See
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). District courts
must confirm these requirements are met before accepting
a plea as the basis for conviction. See FED. R. CRIM. P. 11(b).
While society’s interest in the finality of criminal convictions
means we do not do so lightly, appellate courts will overturn
pleas for involuntariness when ineffective assistance of counsel
brought about the underlying waiver of trial rights. See Tollett
v. Henderson, 411 U.S. 258, 267 (1973).
To establish ineffective assistance the defendant must
show both error by counsel and prejudice to the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Error
must be “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. Courts avoid the bias of hindsight by applying “a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. Prejudice in
the guilty plea context arises when there is a “reasonable
probability that, but for counsel’s errors, [the defendant] would
not have pleaded guilty and would have insisted on going to
trial.” Lee v. United States, 137 S. Ct. 1958, 1965 (2017)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Our circuit remands “colorable and previously
unexplored” claims of ineffective assistance rather than
dismissing in favor of collateral review under 28 U.S.C.
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§ 2255. United States v. Rashad, 331 F.3d 908, 908, 910–11
(D.C. Cir. 2003). We may do so because the Supreme Court
has expressed a preference, but not mandated, that ineffective
assistance claims be channeled through collateral proceedings
in the district courts. Id. at 910–11 (citing Massaro v. United
States, 538 U.S. 500, 504–06 (2003)). But “this Court has
‘never held that any claim of ineffective assistance of counsel,
no matter how conclusory or meritless, automatically entitles
a party to an evidentiary remand.’” United States v. Sitzmann,
893 F.3d 811, 831 (D.C. Cir. 2018) (per curiam) (quoting
United States v. McGill, 815 F.3d 846, 945 (D.C. Cir. 2016)).
Instead, we decline to remand when the record “conclusively
shows” the defendant is not entitled to relief. Rashad, 331 F.3d
at 910 (quoting United States v. Fennell, 53 F.3d 1296, 1303–
04 (D.C. Cir. 1995)); see also United States v. Islam, 932 F.3d
957, 963 (D.C. Cir. 2019) (“When the record ‘clearly shows’
that the claim is meritless, or when no further factual
development is needed, we may dispose of the claim without
remanding.” (quoting Sitzmann, 893 F.3d at 831–32)).
Three types of ineffective assistance claims are generally
not “colorable” and are therefore amenable to resolution as
a matter of law. First, claims that are vague, conclusory, or
insubstantial fail to present an issue worthy of remand. See
Sitzmann, 893 F.3d at 832. Second, when the record
conclusively shows the defendant was not prejudiced, no
factual development could render the claim meritorious. See id.
Third, when the record conclusively shows counsel did not err
by falling below an objective standard of reasonableness, there
is no deficient performance to form the basis of a Sixth
Amendment violation under Strickland. See id. at 831–32.
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B.
Marshall requests remand for an evidentiary hearing to
resolve his claim that trial counsel was constitutionally
ineffective for failing to object to Dr. Cooper’s expert
testimony on qualification grounds. Marshall alleges that
Dr. Cooper was unqualified because she claims expertise in
“forensic pediatrics” but never completed specific coursework
in that field. Marshall maintains that Slaight and Conte’s error
led the district court to allow Dr. Cooper’s testimony and
forced Marshall to plead guilty because of the significant
weight juries tend to give to expert witnesses. We resolve this
challenge without remand because Marshall “has not raised any
substantial issue that requires a determination of facts”
regarding the performance of counsel. Id. at 832 (quoting
United States v. Poston, 902 F.2d 90, 99 n.9 (D.C. Cir. 1990)
(Thomas, J.)).
Counsel’s performance was not deficient because an
objection to Dr. Cooper’s qualifications would have been
meritless under the applicable legal standard. The Federal
Rules of Evidence treat the qualifications of an expert witness
as a threshold inquiry for the trial court. Judges may qualify an
expert by “knowledge, skill, experience, training, or
education,” any one of which is sufficient. FED. R. EVID. 702;
see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999)
(“The Rules grant [testimonial] latitude to all experts, not just
to ‘scientific’ ones.”); Exum v. Gen. Elec. Co., 819 F.2d 1158,
1163 (D.C. Cir. 1987) (“‘[E]xperience’ is only one among the
five different ways to demonstrate an expert is qualified.”).
Dr. Cooper’s curriculum vitae lists extensive medical training
in pediatrics, decades of on-the-job experience, and specialized
knowledge reflected in peer-reviewed publications, other
publications and expert reports, and dozens of lectures on the
dynamics of child sex trafficking and victimization. Our cases
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clearly support qualifying an expert witness on these facts. See,
e.g., Heller v. District of Columbia, 801 F.3d 264, 272 (D.C.
Cir. 2015) (affirming admission of experts for decades of
experience and for relying on appropriate sources to form
opinions); United States v. Smith, 640 F.3d 358, 366 (D.C. Cir.
2011) (Kavanaugh, J.) (finding a witness would have qualified
as an expert on the basis of extensive experience investigating
drug crimes); Burkhart v. Washington Metro. Area Transit
Auth., 112 F.3d 1207, 1211–12 (D.C. Cir. 1997) (affirming
admission of expert for decades of work experience and
involvement in relevant training and policy matters).
Against this backdrop, Slaight and Conte’s decision to
press Marshall’s defense by challenging Dr. Cooper on three
grounds other than qualifications fell well within the
reasonable range of professional assistance. See Kimmelman v.
Morrison, 477 U.S. 365, 386 (1986) (“It will generally be
appropriate for a reviewing court to assess counsel’s overall
performance throughout the case in order to determine whether
the ‘identified acts or omissions’ overcome the presumption
that a counsel rendered reasonable professional assistance.”
(quoting Strickland, 466 U.S. at 690)). Counsel objected to
Dr. Cooper’s testimony on the grounds that her expertise would
not help the jury understand the evidence or make findings of
fact. See FED. R. EVID. 702(a). Further, counsel challenged the
government’s mandatory notice of intent to introduce
Dr. Cooper because the notice failed to summarize her
testimony. See FED. R. CRIM. P. 16(a)(1)(G). Finally, Slaight
and Conte argued with some success that Dr. Cooper’s
testimony about victim psychology might unfairly prejudice
Marshall and confuse the jury as to the issues presented in the
case. See FED. R. EVID. 403. On this record, the choice by trial
counsel to make some objections but not others was an
eminently reasonable exercise in professional discretion. See
Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after
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thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.”).
We have held repeatedly that counsel’s “failure to raise
a meritless objection is not deficient performance.” Islam, 932
F.3d at 964 (citing Sitzmann, 893 F.3d at 833). Objecting to
Dr. Cooper’s qualifications would have been meritless under
applicable law. In these circumstances, the failure to object to
the qualifications of an expert witness does not constitute
deficient performance under Strickland’s first prong.
* * *
Marshall fails as a matter of law to raise a colorable claim
of ineffective assistance of counsel. Accordingly, we resolve
this appeal without remand.
Affirmed.