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United States v. Marshall

United States Court of Appeals, District of Columbia Circuit

January 7, 2020

United States of America, Appellee
Daraya Marshall, also known as Dee, Appellant

          Argued September 23, 2019

          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.


          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.


         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 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.

         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. ยง 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 ...

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