United States v. Franklin

United States Court of Appeals
For the First Circuit

No. 09-1529

UNITED STATES,

Appellee,

v.

DARREN FRANKLIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya Zobel, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Jonathan Shapiro, with whom Alexandra Deal was on brief, for
appellant.
Scott A. C. Meisler, Criminal Division, Appellate Section,
United States Department of Justice, with whom Carmen M. Ortiz,
United States Attorney, Thomas E. Kanwit, Assistant United States
Attorney, Lanny A. Breuer, Assistant Attorney General, and Greg D.
Andres, Acting Deputy Assistant Attorney General, were on brief,
for appellee.

January 5, 2011
 THOMPSON, Circuit Judge. Following a comprehensive

investigation into the organized drug trade in a blighted

neighborhood of Boston, a jury convicted Darren Franklin of several

charges stemming from the sale of crack cocaine and the possession

of both drugs and ammunition. On appeal, Franklin seeks to

overturn those convictions, alleging an illegal search and an

overly long time to trial. After careful consideration, we agree

with the district court's disposition of both issues. We affirm.

BACKGROUND

Drugs and Ammunition

In 2003, federal, state, and local authorities began

conducting a coordinated investigation of the drug trade around the

Warren Gardens housing complex in the Roxbury section of Boston.1

Franklin's reputation as a mid-level supplier of crack cocaine to

street dealers led law enforcement to peg him as a primary target.

Looking to nab the cautious Franklin on concrete charges, law

enforcement set up two controlled buys of crack cocaine.

The first controlled buy occurred on July 10, 2003. On

Copeland Street in Roxbury, an undercover Boston police officer

approached a street dealer from whom he had previously purchased

crack cocaine. Queried about the availability of crack cocaine,

1
Authorities involved in the investigation included the
Boston Housing Police, the Boston Police (specifically the Youth
Violence Task Force, or gang unit), the Massachusetts State Police,
the United States Bureau of Alcohol, Tobacco, Firearms, and
Explosives, and the United States Drug Enforcement Administration.

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the dealer shook hands with the officer, told him to sit on a

nearby set of stairs, and then walked over to a dark-colored

minivan. The dealer spoke with two individuals in the van, one of

whom was later identified as Franklin. Apparently fearful of

surveillance — rightly so, given that the Copeland Street

interactions were being recorded on video — Franklin told the

dealer to move to a more discreet location before consummating the

deal. The officer and the dealer crossed Warren Street and ended

up on Rockland Street in the Warren Gardens complex, where (a

detective would later testify) it is nearly impossible to conduct

surveillance. The van arrived at Rockland Street moments later.

The dealer approached the van, and Franklin passed a plastic bag to

the van's other occupant, who then handed the bag to the dealer

through the van's open window. The dealer removed a rock-like

material from the bag, cut off a chunk, and handed it to the

officer. In return, the officer gave $150 to the dealer, who then

got into the van's back seat. As the van pulled away, the officer

saw the dealer pass the money to Franklin. The chunk of rock-like

material was later determined to contain a net weight of 1.3 grams

of crack cocaine.

The second controlled buy took place on March 12, 2004.

This time, law enforcement employed a confidential informant ("CI")

to arrange a more substantial purchase from Franklin — the goal was

an ounce, or roughly 28 grams of crack cocaine. With an officer

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present, the CI twice tried to reach Franklin by phone before he

called her back. The CI and Franklin arranged a deal to take place

at the Presidential Acres apartment complex in Randolph,

Massachusetts, where Franklin's mother lived. Specifically, the CI

asked for "a full one" — referring to an ounce — which Franklin

said he'd sell her for "a G" — referring to $1000. Officers

searched the CI and her vehicle and found no drugs or money; they

then provided her with $1000 in government money and placed a radio

transmitter in her vehicle, on the driver's side visor.

The CI traveled to the appointed location in Randolph and

parked by the pool. Officers were posted at various places around

the apartment complex, monitoring audio from the CI's vehicle and

recording video of Franklin. The officers' surveillance revealed

that Franklin exited his mother's apartment, got into a brown

vehicle, and drove to meet the CI by the pool. Franklin got out of

his vehicle and into the CI's. The two of them conversed for a

couple of minutes, and then Franklin got back into his vehicle and

left. The CI also drove away, followed by a DEA agent. About a

mile away from the apartment complex, the CI and the agent pulled

over, and the CI handed over to the agent bags containing a rock-

like substance. The rock-like substance was later determined to

contain a net weight of 26.5 grams of crack cocaine.

On April 14, 2004, the government was ready to move in on

Franklin: a grand jury returned an indictment charging him with

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three counts of cocaine possession with intent to distribute, and

the court issued a warrant for his arrest. That very night,

Detective Robert Fratalia set up a post at 159 Pine Grove Drive in

Brockton, Massachusetts, where Franklin was living with then-

girlfriend Fania Hemingway and her two children. Fratalia

surveilled both the apartment complex's courtyard and a blue Ford

Taurus sedan that was registered to Franklin's mother and that he

had previously seen Franklin drive. Detective (and deputized

federal agent) George MacLaughlin and Agent Michael Cashman were

also posted separately nearby.

At around 11:30 p.m., an individual fitting Franklin's

description — a black man, around 30 years old, six feet tall or

so, and probably 270 or 280 pounds — emerged from the courtyard and

got into the front seat of a white sedan, which then drove away.

The car returned about half an hour later, and the individual

headed into the courtyard and out of Fratalia's sight. About an

hour after that, the same individual emerged again, this time

carrying a shopping bag, which he placed in the trunk of the blue

Ford Taurus sedan. He got into the Taurus's driver seat, started

the car, and began to pull away but stopped almost immediately;

then he waited a couple of minutes, got out of the car, locked it,

and returned to the courtyard.

By around 5:30 a.m. on April 15, 2004, a SWAT team had

arrived to arrest Franklin, who (law enforcement had reasonably

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concluded) was the individual Fratalia had observed. The team

surrounded the apartment complex. Officer Brian Cahoon, a member

of the SWAT team, used a cell phone to call into Franklin's

apartment. Hemingway answered the phone and then passed it to

Franklin. Cahoon told Franklin that the apartment was surrounded,

so Franklin prepared to surrender: he got dressed, gathered his

phone, his keys, and some loose cash, and then came out carrying a

plastic bag full of ammunition. He was directed to leave his

belongings on the ground and to crawl on all fours toward nearby

officers; he was then placed in plastic cuffs and taken into

custody.

Franklin was brought to MacLaughlin and Cashman, who

introduced themselves and advised him of his Miranda rights.

Franklin said he understood. By all accounts, the agents told

Franklin that he had been observed placing a plastic bag in the

trunk of the blue Ford Taurus. Here, however, the record diverges

a bit.

According to Cashman, the agents asked Franklin if he

would consent to a search of the car. Franklin skirted the issue

by responding that the car was his mother's. Cashman then asked

him what was in the plastic bag; Franklin said it was a little

weed. Cashman followed up by asking why he had placed a little

weed in the car; Franklin said he had heard that his people were

getting arrested, and he wanted to protect his girlfriend by

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removing any contraband from the apartment. Having secured this

information, Cashman repeated his initial request that Franklin

consent to a search of the car. Franklin replied, "Yeah, do what

you got to do." Cashman testified specifically that the agents did

not tell Franklin that they would get a warrant to search the car

if he did not consent.

According to MacLaughlin, the conversation went more or

less as Cashman testified. Under MacLaughlin's version of events,

however, Franklin only explained why he had placed the marijuana in

the trunk of the Taurus — to protect his girlfriend — after telling

the agents to "do what you got to do."

According to Franklin, however, the agents first asked

him what he had been doing in the car at night. Franklin told them

that he "was just going out to my car to smoke some weed." They

asked what was in the bag that he had placed in the trunk. He

replied, "some sneakers." Then the agents asked whether they could

search the car, to which Franklin replied, "no." After conferring

with one another, the agents asked Franklin whether the car was his

mother's. He replied that the car was his but was registered to

his mother. Stymied, McLaughlin said, "Well, you know we could tow

the car until we get a search warrant." Only at this point did

Franklin offer the response that the officers took as consent:

"Well, do what you got to do then."

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 On the basis of Franklin's apparent consent, McLaughlin

retrieved the keys to the Taurus from Hemingway. The agents

searched the car, finding a bag in the trunk. The bag contained a

shoe box, the shoe box contained a smaller bag, and that bag

contained 66 grams of crack cocaine and 91 grams of marijuana.

Pretrial Procedural Hiccups

On April 20, 2004, Franklin entered a plea of not guilty,

and on October 14, 2004, he moved to suppress the fruits of the

agents' search of the car, arguing that he had not actually

consented to the search. Franklin also requested an evidentiary

hearing on the issue. The government opposed the motion and argued

that there was no need for a hearing.

In the meantime, on October 28, 2004, Franklin was also

indicted on another possession-with-intent-to-distribute charge,

this time stemming from the drugs the agents found in the car; the

new indictment also added a felon-in-possession-of-ammunition

charge. Franklin entered a plea of not guilty to the additional

counts in the superseding indictment.

In January 2005, the district court first addressed the

motion to suppress, suggesting that there was no real need for an

evidentiary hearing. Eight months later, however, the court

granted the request for a hearing, which took place over three days

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in November and December 2005.2 In early March 2006, having

received no ruling from the district court, Franklin filed a motion

to dismiss the indictment for violation of the Speedy Trial Act, 18

U.S.C. § 3162.

Finally, on March 15, 2006 — nearly a year and a half

after Franklin filed his suppression motion — the court denied the

motion on the alternate grounds that Franklin had given consent or

that the officers had probable cause to conduct the challenged

search. Two days later, the court denied the motion to dismiss,

finding no violation of the Speedy Trial Act. However, following

a request for reconsideration, the court reversed course, found a

violation, and dismissed the indictment without prejudice.

In November 2006, a grand jury re-indicted Franklin on

three counts of cocaine possession-with-intent-to-distribute and

one count of felon-in-possession-of-ammunition, all stemming from

the three episodes set forth in the facts above. Under the new

indictment, Franklin moved again for dismissal, this time with

prejudice, for violations of the Speedy Trial Act and the Sixth

Amendment. The court denied the motion, and Franklin was convicted

on all counts after a six-day trial.

On appeal, Franklin raises only the Speedy Trial Act and

suppression issues. We have jurisdiction under 28 U.S.C. § 1291.

2
The hearing, originally scheduled for November 3, 2005, was
postponed for about two and a half weeks after Franklin was granted
a continuance.

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 ANALYSIS

Speedy Trial Act

The Speedy Trial Act was enacted to effectuate the Sixth

Amendment's right to a speedy trial in criminal prosecutions. See

United States v. Scott, 270 F.3d 30, 53 (1st Cir. 2001); H.R.Rep.

No. 96-390, at 2-3 (1979), reprinted in 1979 U.S.C.C.A.N. 805, 807.

The Act provides at 18 U.S.C. § 3162(a)(2) that "[i]f a defendant

is not brought to trial within the time limit" established

elsewhere in the Act, then "the information or indictment shall be

dismissed on motion of the defendant." Because the parties agree

that Franklin was not timely brought to trial, the issue here is

whether dismissal with prejudice is necessary under the Act.

The Act at § 3162(a)(2) speaks to this issue directly:

In determining whether to dismiss the case
with or without prejudice, the court shall
consider, among others, each of the following
factors: [1] the seriousness of the offense;
[2] the facts and circumstances of the case
which led to dismissal; [3] and the impact of
a reprosecution on the administration of this
chapter and on the administration of justice.

In considering the other factors adverted to in the Act, this court

has hewn to the principle that any such factors must be "rationally

related to the balancing objectives of the tripartite test."

United States v. Hastings, 847 F.2d 920, 924 (1st Cir. 1988).

Thus, these factors may include "the length of the delay and the

prejudice to the defendant stemming from the violation (or

conversely, the absence of prejudice)." Id. Indeed, we have come

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to describe prejudice to the defendant as the fourth factor for

courts to consider. See United States v. Barnes, 159 F.3d 4, 16

(1st Cir. 1998). In the end, however, one policy underrides our

analysis: dismissal with prejudice is "a last and rare resort."

United States v. Dessesaure, 556 F.3d 83, 85 (1st Cir. 2009).

Our standard of review is abuse of discretion, see id.,

but the district court's decision is sound enough to withstand even

significantly more searching scrutiny; indeed, it is sufficiently

well-constructed to stand on its own. Nevertheless, we will

briefly expound on each of the factors set forth above.

First, Franklin concedes that his crime was serious, and

rightly so. Both common sense and court precedent command the

conclusion that the possession on multiple occasions of large

quantities of drugs and ammunition is serious. See, e.g., id. at

86.

Second, Franklin argues that the facts and circumstances

of the delay in this case are like those in United States v.

Stayton, 791 F.2d 17 (2d Cir. 1986), where the Second Circuit held

that a 23-month delay between voir dire and swearing in the jury

warranted a dismissal with prejudice.3 Applying the second factor,

the Stayton court noted that "the [district] court ignored the

persistent prodding of the government to decide . . . outstanding

3
As Franklin does, we consider the length of delay under the
facts-and-circumstances prong rather than setting it out as a
separate factor.

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motions and proceed to trial." Id. at 21. Given that specific

context, the court held that "the enormity of the delay" was enough

"to tip th[e] second factor in favor of dismissal of the indictment

with prejudice." Id. at 22.

The government argues that this case is controlled by

Scott, 270 F.3d 30, where we held that a 124-day wait for an order

on a motion to suppress warranted only dismissal without prejudice.

Among the factors supporting dismissal without prejudice was our

determination that "the facts and circumstances of the delay do not

show any bad faith on the part of the government"; instead, "[t]he

delay was largely due to the district court, which acted without

clear guidance by the law on the point." Id. at 58. Scott's

holding reflects our practice of looking to whether there is

government "culpability" as the focus of our facts-and-

circumstances analysis. See United States v. Hastings, 847 F.2d

920, 925 (1st Cir. 1988).

The government is correct: Scott controls, and Stayton

does not. There are many reasons for this, not least of which is

that Scott is binding in this circuit while Stayton is not.

Additionally, Scott is squarely on point here: in both cases, the

delay stemmed from the court's belated decision to hold an

evidentiary hearing and then require more briefing and not from any

government misconduct. See Scott, 270 F.3d at 54. We made clear

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in Scott that these circumstances favor dismissal without

prejudice. Id. at 58.

Stayton, on the other hand, is not only non-binding but

also inapplicable here because of its vastly different facts. In

Stayton, there was no indication that the defendant bore any

responsibility for the delay, for which the reviewing court could

not discern "a single justifying reason." Stayton, 791 F.2d at 20.

Here, Franklin's responsibility was twofold: he requested a

continuance and later remained silent about the delay until he

filed the motion to dismiss. See Dessesaure, 556 F.3d at 86

(reversing dismissal with prejudice where "the defendant was as

well-placed to remind the judge [about the delay] as was the

prosecutor"). Additionally, in Stayton the delay was 23 months;

here, the delay — whether 180 days, as the district court found, or

234, as Franklin argues — was far shorter. In the end, then, Scott

controls, Stayton is wholly inapposite, and the facts and

circumstances of the delay strongly favor the government.

Third, Franklin suggests that dismissal without prejudice

would disrupt the administration of justice and of the Speedy Trial

Act by effectively extracting the Act's teeth. This argument

ignores the Act's specific inclusion of dismissal without prejudice

as a sanction, and that sanction's several teeth: the cost to the

government in bringing a new prosecution, the possibility of

statute of limitations issues, the chance of failure to re-indict,

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and the risk of losing evidence and witnesses over time; the

argument has therefore been roundly repudiated by both this court

and the Supreme Court. See United States v. Taylor, 487 U.S. 326,

342 (1988) ("Dismissal without prejudice is not a toothless

sanction."); Barnes, 159 F.3d at 17-18 (quoting same). We need say

no more on that.

Fourth and finally, Franklin does not suggest how he

might have been prejudiced by the delay, instead espousing the

proposition that where "serious enough" delay occurs, "it [i]s

unnecessary to determine the extent to which the defendant ha[s]

actually been prejudiced." But the delay here was not extreme, and

it resulted at least in part from Franklin's own request for a

continuance and subsequent inaction. More importantly, Franklin's

suggestion that we bypass prejudice belies a glaring weakness in

his argument: there is nothing in either the record or the briefs

to indicate that he actually was prejudiced in any way by the

district court's delay. Accordingly, the fourth factor tips the

scale still further in the government's favor.

Thus, the record reveals a serious crime, a somewhat

lengthy but innocuous delay, a just sanction, and no harm to

Franklin. Far from being an abuse of discretion, the district

court's dismissal without prejudice was utterly appropriate.

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Motion to Suppress

The Fourth Amendment protects "[t]he right of the people

to be secure . . . against unreasonable searches." U.S. Const.

amend. IV. This right is given effect through the exclusionary

rule, which "forbids the use of improperly obtained evidence at

trial." Herring v. United States, 129 S. Ct. 695, 699 (2009).

Here, Franklin asserts that the drugs found in the trunk of the

Taurus sedan were obtained in violation of the Fourth Amendment

and, therefore, that the district court erred in denying his motion

to suppress this evidence. Specifically, Franklin argues that he

did not consent to the officers' search, and that the officers had

neither a warrant nor probable cause to otherwise justify their

actions. We review de novo the legal questions underlying these

arguments, accepting as true the court's factual assessments unless

clearly erroneous. See United States v. Marshall, 348 F.3d 281,

284 (1st Cir. 2003).

Consent

There is no dispute that a "specifically established

exception[]" to the Fourth Amendment's "requirements of both a

warrant and probable cause is a search that is conducted pursuant

to consent." United States v. Vilches-Navarrete, 523 F.3d 1, 15

(1st Cir. 2008) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973)) (internal quotation marks removed). For consent to be

valid, it must be given knowingly, intelligently, and voluntarily.

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See Marshall, 348 F.3d at 286. This brief recitation of the law is

all that is necessary here because the law is not in dispute:

Franklin has elected to focus his attack on the factual

determinations underlying the district court's decision.

First, Franklin says that "[t]he issue of whether [he]

voluntarily consented to the search of the trunk of his car

depended upon resolving a conflict between the testimony of two DEA

task force agents, George MacLaughlin and Michael Cashman, on the

one hand," and his own testimony, on the other. Franklin suggests

that the officers' testimony is so implausible that no reasonable

fact-finder could possibly have subscribed to it rather than his

own. For example, Franklin asserts that "[h]owever cooperative he

appeared to be, the last thing he would have done was to tell the

police where they could find the drugs that he was supposedly

trying to hide from them." And yet according to Franklin's own

testimony, he told the officers that he had gone to the car "to

smoke some weed." That weed must have come from somewhere: either

he brought it with him to the car, or it was already in the car.

In either case, it ended up in the car. Given Franklin's

testimony, then, it hardly seems improbable that Franklin might

have admitted to the officers that there were drugs in the car.

Moreover, courts have routinely rejected the notion that testimony

is implausible merely because it recounts a defendant's acting

against his own self-interest. See, e.g., United States v.

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Mendenhall, 446 U.S. 544, 559 (1980). Overall, Franklin's attempts

to draw inconsistencies and implausibilities from the officers'

testimony are barely colorable; they come nowhere near the clear

error threshold.4

Franklin's other primary argument on this point — that

the officers' testimony is suspect because it is not corroborated

by a consent form — likewise holds no water. A consent form

certainly would have made the prosecution's task easier, but it was

not necessary, and its absence does not undercut the officers'

consistent testimony. Indeed, our case law is clear that

"[w]ritten consent is not essential to the establishment of a valid

consensual search." United States v. Barnett, 989 F.2d 546, 555

(1st Cir. 1993).

A consent form was particularly unnecessary here given

other evidence sufficient to establish consent: specifically,

uncontested testimony that Franklin told the officers to "do what

you got to do." The district court concluded that this

unenthusiastic statement evinced consent, and given circuit

precedent upholding consent under similar circumstances, this

4
Such is the case with Franklin's arguments that the
officers' testimony is implausible because (1) his comment about
the car being in his mother's name was a non-sequitur, and (2)
experienced officers would never bother asking consent to search a
car after a suspect has already admitted there are drugs in the
car. Contrary to Franklin's contentions, it is quite plausible
that the former was a halfhearted attempt at evasion and the latter
was simply belt-and-suspenders police work.

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conclusion was not clear error. See United States v. Zapata, 18

F.3d 971, 974, 977 (1st Cir. 1994) (consent clear from statement:

"Sure, go ahead"); Barnett, 989 F.2d at 556 (consent clear from

statement: "Go ahead; you'd probably get a search warrant anyway").

Franklin's statement, particularly viewed in light of his prior

statements about the car and his choice to surrender ammunition to

the officers, could reasonably be construed as consent.

Finally, Franklin asserts that this case is factually

similar to United States v. Escobar, 389 F.3d 781 (8th Cir. 2004),

in which a panel of the Eighth Circuit held that the defendants'

consent to a search of their luggage was not voluntary because they

had simply "acquiesced to the search believing [they] had no

choice." Id. at 786. However, Escobar neither binds us nor offers

us any persuasive value given the utterly distinct facts of this

case. In Escobar, the police knew nothing about the defendants,

who were random bus passengers subject to a general sweep, or their

criminal history, see id. at 782-83; here, officers knew Franklin

— including his criminal history and his consequent familiarity

with criminal procedure — quite well, having spent about a year

building a drug case against him.5 In Escobar, officers lied to

the defendants and claimed that drug-detection dogs had already

5
Actually, the officers' familiarity stretched far past the
investigation giving rise to this case; at the time of Franklin's
arrest, for example, Detective Fratalia had maintained a cordial if
adversarial working relationship with him "since the late 1980s."

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alerted to their luggage, see id. at 783, 786; here, the police did

not lie to Franklin — even Franklin's own account demonstrates a

candid conversation in which he freely admitted to having marijuana

in the car that was searched. And, most importantly, in Escobar,

the officers did not advise the passengers of any of their rights,

see id. at 783, 786; here, Franklin was immediately advised of his

Miranda rights — including the right to remain silent — and he

indicated he understood those rights. Thus, the circumstances that

the court found were relevant to the Escobar defendants' "believing

[they] had no choice" — lack of demonstrated familiarity with

criminal procedure, lies designed to elicit consent, and no notice

of a right to remain silent — were entirely absent here.6

Franklin's reliance on Escobar is misplaced, and it was not clear

error for the district court to find Franklin’s consent voluntary.

Probable Cause

Even if the district court's consent finding were

questionable — and the above discussion should make clear that it

is not — the automobile exception to the Fourth Amendment's warrant

requirement would vindicate the officers' search because the agents

had probable cause to believe that the Taurus contained drugs. See

United States v. Lopez, 380 F.3d 538, 543 (1st Cir. 2004) ("A

6
We reject the notion that the district court clearly erred
when it found that the officers had not threatened to tow
Franklin's car and obtain a search warrant. However, even assuming
such an error, the facts and circumstances spelled out above would
still overwhelmingly favor a finding of consent.

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warrantless search of an automobile will be upheld if 'officers

have probable cause to believe that the vehicle contains

contraband.'") (quoting United States v. Ross, 456 U.S. 798, 808

(1982)). To put it briefly: the agents testified Franklin told

them there was marijuana in the car; the district court credited

the agents' version of events in finding probable cause; and we

have already held that the district court's factual findings are

far from clearly erroneous. Thus, the probable cause question is

quickly dispatched.

CONCLUSION

The district court adequately addressed an admitted

Speedy Trial Act violation by dismissing Franklin's charges without

prejudice. Franklin's conviction was properly based in part on a

vehicle search that was legal in every respect. Accordingly, we

affirm.

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