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.
-2-
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
-3-
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
-4-
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
-5-
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
-6-
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."
-7-
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
-8-
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.
-9-
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
-10-
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.
-11-
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
-12-
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,
-13-
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.
-14-
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.
-15-
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.
-16-
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.
-17-
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."
-18-
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.
-19-
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.
-20-
United States v. Franklin
Court: Court of Appeals for the First Circuit
Date filed: 2011-01-05
Citations: 630 F.3d 53
Copy Citations