United States v. John Franklin , 545 F. App'x 243 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4319
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN FRANKLIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:11-cr-00095-MJG-1)
Argued: September 20, 2013 Decided: November 6, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Davis and Judge Floyd joined. Judge
Davis wrote a separate concurring opinion.
ARGUED: Jenifer Wicks, LAW OFFICE OF JENIFER WICKS, Washington,
D.C., for Appellant. John Walter Sippel, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:
John Franklin was convicted by a jury of numerous charges
arising from his participation in two carjacking incidents. In
this appeal, Franklin argues that: (1) the district court erred
in denying his motion to suppress certain evidence obtained
around the time of his arrest; (2) the evidence was insufficient
to support his convictions; and (3) his trial counsel provided
ineffective assistance. Upon our review, we affirm the district
court’s judgment.
I.
On August 14, 2010, Franklin met co-defendants Troy
Williams and Dwayne Frazier at their residence in Baltimore,
Maryland. Franklin suggested that the three men go “downtown”
to rob people. Williams and Frazier agreed and, when the group
left the residence, Frazier was in possession of a handgun.
While walking toward downtown Baltimore, the group
encountered Sean Gallion-Thomas, who was driving a green Buick
LeSabre (the LeSabre). Franklin informed Gallion-Thomas that
the group needed a ride and offered to pay Gallion-Thomas, who
was not a licensed cab driver, to take them to their
destination.
Gallion-Thomas drove the group for about 30 minutes, until
he was instructed by Franklin to stop the car. Frazier, who was
2
seated behind the driver’s seat, pointed a gun at Gallion-
Thomas, and Franklin asked whether Gallion-Thomas had any money
or a cell phone. Williams later removed money and a phone from
Gallion-Thomas’ pockets.
Meanwhile, Franklin took Gallion-Thomas’ identification
card from his pocket, and read Gallion-Thomas’ name and address
aloud, stating, “We know where you live at.” Franklin
instructed Gallion-Thomas not to call the police, and told him
that the group would return the car to Gallion-Thomas’ home if
the incident was not reported. Gallion-Thomas perceived
Franklin’s statements as a threat. The group “kicked [Gallion-
Thomas] out” of the car and drove away. Thereafter, Gallion-
Thomas reported the crime to the Baltimore City police (the
police).
While riding in the LeSabre, Franklin, Williams, and
Frazier formulated a plan to go to the El Dorado strip club to
commit another robbery. A short while later, the group pulled
into a parking lot adjacent to the club and encountered a red
Dodge Charger (the Charger), which had three female occupants.
Franklin and Williams got out of the LeSabre and walked toward
the Charger.
Williams approached the women in the Charger while holding
a gun, touched the gun to the driver’s chest, and stated “give
me everything.” Franklin “groped” the front-seat passenger
3
searching for items in her pockets. Williams and Franklin took
two cell phones and a purse from the women, and Williams
demanded the keys to the Charger upon being prompted to do so by
Franklin.
Because the driver of the Charger thought that Williams
would shoot her if she did not comply, she gave him the keys to
her vehicle. After the women got out of the car, Franklin and
Williams left the scene in the vehicle, following the LeSabre
driven by Frazier.
The women contacted the police to report the incident, and
provided a detailed description of the two men who took the
vehicle, including their height, build, and attire. The women
informed the police that they “really got a good look” at
Franklin, whom they reported as being a “heavy-set” man wearing
a colorful striped shirt.
Police officers soon observed a red Dodge Charger being
“trailed” by a green Buick LeSabre. The officers followed the
vehicles, and were able to stop the LeSabre and arrest its
driver, Frazier. Gallion-Thomas later identified Frazier as one
of the perpetrators of the first robbery and carjacking.
The driver of the Charger initially eluded police and began
driving at a high rate of speed. The police temporarily lost
sight of the vehicle, but eventually found it after the vehicle
struck a parked car. However, when a police officer approached
4
the Charger, he observed that its occupants had fled. After
additional officers arrived, Williams was found hiding under a
parked vehicle which was about “two or three vehicles” away from
the Charger.
Shortly thereafter, a few blocks away from the Charger, a
police officer saw a man later identified as Franklin, who was
heavy-set, wearing a striped shirt and sweating profusely. The
officer stopped Franklin because he “matched the description
that was given over the [police] radio.” While conducting a
“pat down” search of Franklin, the officer recovered Gallion-
Thomas’ identification card and a cell phone belonging to one of
the female victims.
In the same block in which Franklin was apprehended, the
police found a loaded revolver, which later was identified by
two of the women victims as being the firearm used during the
second incident. The police also found near that location a
wallet and an additional cell phone owned by another of the
female victims. Less than 10 minutes later, and about 45
minutes after the second carjacking occurred, the female victims
were brought by police to the street location where Franklin was
being detained. All three women identified Franklin as one of
the perpetrators.
A grand jury issued a superseding indictment charging
Franklin with: conspiracy to commit carjacking, in violation of
5
18 U.S.C. § 371 (Count 1); carjacking, in violation of 18 U.S.C.
§ 2119 (Counts 2 and 4); possession of a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C. § 924(c)
(Counts 3 and 5); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g) (Count 6). Before
trial, the district court denied Franklin’s motion to exclude
evidence relating to the identifications made by the female
victims, and also denied Franklin’s motion to suppress the items
obtained from his person during the search incident to his
arrest.
The jury convicted Franklin of all charges, and the
district court imposed a total sentence of 414 months’
imprisonment. Franklin timely appealed.
II.
Franklin first argues that the district court erred in
refusing to suppress the evidence seized during the search
incident to his arrest. According to Franklin, the police
lacked probable cause to arrest him, thereby invalidating the
seizure of the cell phone belonging to one of the female victims
and Gallion-Thomas’ identification card. Franklin also contends
that the impermissibly suggestive nature of the “show-up”
identifications rendered them inadmissible. We disagree with
Franklin’s arguments.
6
In considering a district court’s denial of a motion to
suppress evidence, we review de novo the court’s legal
conclusions, and review for clear error the court’s supporting
factual findings. United States v. Kelly, 592 F.3d 586, 589
(4th Cir. 2010). In undertaking this analysis, we review the
evidence in the light most favorable to the government, the
prevailing party at trial. Id.We conclude that the police had probable cause to arrest
Franklin even before the female victims identified him. A
police officer may make a warrantless arrest in a public place
if the officer has probable cause to believe that the individual
is or will soon be involved in criminal activity. United States
v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004). The
requirement of probable cause may be satisfied by “facts and
circumstances within the officer’s knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.”
See id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37
(1979)). We consider under the “totality of the circumstances”
the question whether an arrest was supported by probable cause,
affording “defer[ence] to the expertise and experience of law
enforcement officers at the scene.” Id.7
Here, the evidence showed that in responding to reports
that a green Buick LeSabre and a red Dodge Charger had been
stolen at gunpoint, police observed the two vehicles, and were
able to stop the LeSabre and apprehend its driver. Although the
driver of the Charger initially eluded police, that vehicle
later collided with a parked car and one occupant of the Charger
was found hiding under another parked car near the collision
scene.
After searching the area for the Charger’s additional
occupant, and having received reports that one of the
perpetrators was heavy-set and was wearing a striped shirt, the
police observed nearby a man matching this physical description
wearing a striped shirt, who was sweating profusely and appeared
disheveled. According to the police officer who apprehended
Franklin, he “matched the description that was given over the
[police] radio.” The officers also found a handgun discarded on
the same street block where Franklin was detained. Based on
this evidence, we hold that the district court did not err in
concluding that the police had probable cause to arrest
Franklin, and that the items recovered in the search incident to
his arrest were admissible.
Franklin argues, nevertheless, that the identification
testimony from the female victims should have been suppressed
because the identifications were impermissibly suggestive. We
8
disagree, based on our ultimate conclusion that this
identification evidence was reliable.
The exclusion of identification evidence is a “drastic
sanction . . . that is limited to identification testimony which
is manifestly suspect.” Harker v. Maryland, 800 F.2d 437, 443
(4th Cir. 1986). In considering whether an identification
should be suppressed, we undertake a two-step analysis. First,
we determine whether the defendant has shown that the
identification procedure was impermissibly suggestive. See
Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994) (citing
Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). If the
defendant has met this burden, we next must decide “whether the
identification was nevertheless reliable under the totality of
the circumstances.” See id.In the present case, there was a significant degree of
suggestiveness involved in the show-up identification process.
The police told the female victims that the suspects had been
apprehended, and Franklin was in handcuffs sitting on a curb
near some police cars when the victims arrived and identified
him. Accordingly, we will assume, without deciding, that
Franklin has met his burden of showing that the show-up
identification process in this case was impermissibly
suggestive. See Holdren, 16 F.3d at 61 (“[W]ithout determining
whether [the defendant] has met the threshold requirement of
9
suggestiveness, we may proceed directly to the reliability of
the identification.”).
We nevertheless conclude that the identification evidence
was admissible, because it was “reliable under the totality of
the circumstances.” See id. at 61. In evaluating reliability
under the totality of the circumstances, we primarily consider
five factors: (1) the witness’s opportunity to view the accused
at the time of the crime; (2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the
accused; (4) the level of certainty by the witness at the
confrontation; and (5) the length of time between the crime and
confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972);
Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997).
Here, upon application of the factors identified in Biggers
we conclude that Franklin’s identification by the female victims
was reliable. The female victims were in very close proximity
to Franklin during the carjacking, and one of the victims
testified that the group “really got a good look” at Franklin.
Additionally, the identifications were made soon after the
crimes occurred, the victims were very confident that Franklin
was one of their assailants, 1 and the victims had provided a
1
The driver of the Charger testified that she “was a
hundred percent certain” at the time of the identification that
Franklin was one of the men who had stolen her vehicle.
10
prior description of Franklin to the police that matched his
appearance when he was apprehended. Accordingly, we conclude
that the district court did not err in denying Franklin’s motion
to suppress the identification evidence. See United States v.
Saunders, 501 F.3d 384, 391-92 (4th Cir. 2007) (impermissibly
suggestive out-of-court photo identification did not violate
defendant’s rights when the identification was nonetheless
reliable under the totality of the circumstances); Abrams v.
Barnett, 121 F.3d 1036, 1041-42 (7th Cir. 1997) (unduly
suggestive show-up identification procedure was not a denial of
due process rights because the totality of the circumstances
established that the identification was nevertheless reliable).
III.
Franklin next argues that the government failed to prove at
least one element of each of the offenses. He maintains that
these alleged failures require that a judgment of acquittal be
entered on all charges.
We review de novo a district court’s denial of a
defendant’s motion for judgment of acquittal. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A defendant
challenging the sufficiency of the evidence faces “a heavy
burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997) (citation and internal quotation marks omitted). We
11
must sustain a jury verdict if there is substantial evidence to
support it, viewing the evidence in the light most favorable to
the government, assuming the credibility of the evidence, and
drawing all favorable inferences from the evidence. United
States v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir. 2011).
The evidence supporting a conviction is “substantial” if “a
reasonable finder of fact could accept [the evidence] as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Alerre, 430 F.3d at 693(citation and internal quotation marks omitted).
Franklin first challenges his convictions for carjacking
(Counts 2 and 4) and conspiracy to commit carjacking (Count 1).
The elements necessary to support a conviction for conspiracy
under 18 U.S.C. § 371 include (1) an agreement to commit an
offense; (2) willing participation by the defendant; and (3) an
overt act in furtherance of the conspiracy. United States v.
Tucker, 376 F.3d 236, 238 (4th Cir. 2004). The government may
use circumstantial evidence to establish a defendant’s knowledge
and participation in the conspiracy. United States v. Burgos,
94 F.3d 849, 857-58 (4th Cir. 1996) (en banc).
With regard to the offense of carjacking in violation of 18
U.S.C. § 2119, the government was required to establish that the
defendant “(1) with intent to cause death or serious bodily harm
(2) took a motor vehicle (3) that had been transported, shipped
12
or received in interstate or foreign commerce (4) from the
person or presence of another (5) by force and violence or
intimidation.” United States v. Foster, 507 F.3d 233, 246-47
(4th Cir. 2007) (citation and internal quotation marks omitted).
To prove the intent element of the carjacking offense, the
government was required to show that when the defendant or his
co-conspirators demanded or took control of the vehicle, the
defendant or his co-conspirators had the intent to seriously
harm or to kill the driver if necessary to steal the car.
Holloway v. United States, 526 U.S. 1, 12 (1999); see United
States v. Chorman, 910 F.2d 102, 111-12 (4th Cir. 1990) (noting
that under Pinkerton v. United States, 328 U.S. 640 (1946), a
conspirator may be convicted of substantive offenses committed
by co-conspirators in the course of and in furtherance of the
conspiracy); Foster, 507 F.3d at 247. Although an “empty
threat” or an “intimidating bluff” is insufficient standing
alone to establish the requisite intent, the government need
only show that the defendant or his co-conspirators were
“conditionally prepared to act if the person failed to
relinquish the vehicle.” See Holloway, 526 U.S. at 11; Foster,
507 F.3d at 247.
In the present case, Franklin asserts that the carjacking
and conspiracy convictions cannot stand because the government
failed to establish the intent element of the carjacking
13
offense, and also failed to show that the object of the
conspiracy was to commit the specific crime of carjacking.
After reviewing the record, we conclude that the evidence was
sufficient to support a jury determination that Franklin had the
required intent with regard to those charges.
The evidence overwhelmingly established that Franklin
knowingly and actively participated with Frazier and Williams in
planning and conducting the theft of the two vehicles, which was
accomplished by pointing a gun at each of the two drivers and
demanding that they relinquish their automobiles. Notably, the
perpetrators did not merely display a gun during these incidents
but rather pointed the gun at the driver of each vehicle in
demanding car keys and other possessions. During the first
incident, Franklin “[did] the talking,” while Frazier aimed a
gun at the driver. Franklin also forcibly removed Gallion-
Thomas’ driver’s license from his person, and read aloud his
name and address in a manner that Gallion-Thomas perceived as a
threat. During the second incident, Franklin “groped” one of
the vehicle’s passengers, searching for items to steal, while
Williams pressed a loaded handgun against the driver’s chest.
Franklin thereafter entered the Charger with Williams and left
the scene in the automobile. We conclude that this evidence was
sufficient to support a jury determination that the object of
the conspiracy was to commit the offense of carjacking, and that
14
the conspirators intended to inflict serious harm or to kill the
drivers if necessary to steal the cars. See United States v.
Augustin, 376 F.3d 135, 140 (3d Cir. 2004) (holding that
defendant could be convicted of carjacking offenses even though
he purportedly did not know a co-conspirator intended to commit
a carjacking or possessed a gun, because the defendant
“ratified” the co-conspirator’s actions by failing to stop him
and instead entered the car with the co-conspirator and drove
away); United States v. Adams, 265 F.3d 420, 425 (6th Cir. 2001)
(physically touching a carjacking victim with a weapon is
sufficient, standing alone, to establish intent to kill or
inflict serious harm on the victim).
Franklin next challenges his convictions under Counts 3 and
5 for possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c). Franklin’s sole
argument is that these convictions cannot stand if we conclude
that the evidence is insufficient to support his carjacking and
conspiracy convictions. Because we hold that the carjacking and
conspiracy convictions are supported by ample evidence, we
conclude that Franklin’s challenges to the convictions under
Counts 3 and 5 likewise fail. 2
2
Moreover, we note that to obtain a conviction under 18
U.S.C. § 924(c), the government must establish that (1) the
defendant possessed a firearm, and (2) such possession was in
(Continued)
15
Franklin also challenges his conviction under Count 6 for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), arguing that the government failed to show
that he had actual or constructive possession of a gun at any
time during the carjacking incidents. We disagree.
To establish a conviction under Section 922(g)(1), the
government was required to prove three elements, namely, that
(1) the defendant was a convicted felon, (2) who voluntarily and
intentionally possessed a firearm, and (3) the firearm had
traveled in interstate commerce. United States v. Gallimore,
247 F.3d 134, 136 (4th Cir. 2001). Only the second element is
at issue in this appeal. Proof of actual or exclusive
possession was not required, because a conviction may be
obtained on the basis of constructive or joint possession. Id.
at 136-37.
furtherance of a crime of violence. United States v. Lomax, 293
F.3d 701, 704 (4th Cir. 2002). A defendant may be convicted
for violating Section 924(c) on the basis of a co-conspirator’s
use of a gun if the use was in furtherance of the conspiracy and
was reasonably foreseeable to the defendant. United States v.
Wilson, 135 F.3d 291, 305 (4th Cir. 1998). Here, the evidence
showed that during both carjacking incidents, one of Franklin’s
co-conspirators possessed a firearm and pointed it at the driver
in Franklin’s presence, thereby allowing the co-conspirators to
steal the victims’ cars and possessions. Accordingly, we
conclude that the evidence supports Franklin’s convictions for
violating 18 U.S.C. § 924(c).
16
After reviewing the record, we conclude that a jury
reasonably could have inferred that Franklin possessed a gun
after he abandoned the Charger. The evidence showed that
Williams, who pointed a gun at the driver of the Charger during
the second incident, entered that vehicle along with Franklin,
and that they both drove away in the Charger while Frazier
remained in the LeSabre. According to Williams’ testimony, he
did not take the gun from the Charger when leaving the vehicle
after the collision. Although Williams did not see whether
Franklin took the gun from the Charger upon fleeing the vehicle,
the gun was found by a police officer in a stairwell located on
the same street where Franklin was apprehended. On the basis of
this evidence, the jury reasonably could have inferred that
Franklin took the gun from the Charger when he fled the vehicle,
and discarded the gun while attempting to avoid the police.
Accordingly, we conclude that Franklin’s conviction for
violating Section 922(g)(1), as well as his other convictions,
are supported by substantial evidence.
IV.
Finally, we address Franklin’s argument that his trial
counsel provided ineffective assistance by failing to inform him
of the potential prison sentence that could be imposed if he
were convicted of all charges. Franklin asserts that counsel’s
17
failure to provide this information affected Franklin’s decision
to decline the government’s plea offers.
We repeatedly have stated that claims of ineffective
assistance of counsel are cognizable on direct appeal only when
the record conclusively demonstrates that defense counsel did
not provide effective representation. United States v. Powell,
680 F.3d 350, 359 (4th Cir. 2012); United States v. Allen, 491
F.3d 178, 191–92 (4th Cir. 2007). Here, the record does not
conclusively establish that the performance of Franklin’s
counsel was deficient or prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Therefore, we decline to
address Franklin’s ineffective assistance of counsel claim in
this direct appeal.
V.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
18
DAVIS, Circuit Judge, concurring:
I concur fully in Judge Keenan’s carefully-reasoned opinion
for the panel affirming the judgment. I pause only to note the
continuing discomfort in the lower federal courts and in many
state courts over the Supreme Court’s outdated due process test
for the reliability of eyewitness identification evidence. See
ante, at 10 (applying Neil v. Biggers, 409 U.S. 188, 199-200
(1972)). See generally United States v. Greene, 704 F.3d 298,
305 n.3, 309 n.4 (4th Cir. 2013)(collecting authorities). As the
majority opinion shows, given the circumstances in the case at
bar, one could hardly reasonably question the salience of
witness “certainty” to the reliability analysis. To be sure,
however, such will not always be the case. Id.19