United States v. John Franklin

UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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.

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 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.

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 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

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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