FILED
NOT FOR PUBLICATION
MAY 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30164
Plaintiff - Appellee, D.C. No. 3:11-cr-05335-BHS-1
v.
MEMORANDUM*
ERIC QUINN FRANKLIN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted May 6, 2016
Seattle, Washington
Before: GRABER, BERZON, and MURGUIA, Circuit Judges.
Eric Quinn Franklin was convicted in federal district court of being a felon
in possession of a firearm and several drug-related offenses. The district court
determined Franklin was subject to a 15-year minimum sentence under the Armed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Career Criminal Act (“ACCA”) and a consecutive 5-year minimum for possessing
a firearm in furtherance of drug trafficking, and sentenced him to 20 years of
imprisonment. Franklin appeals his convictions and sentence. We affirm the
convictions but vacate the sentence and remand the case for a new sentencing
proceeding.
1. Assuming that the district court denied the suppression motion without
holding an evidentiary hearing, it did not abuse its discretion by doing so. A
district court is required “to conduct an evidentiary hearing when the moving
papers filed in connection with a pre-trial suppression motion show that there are
contested issues of fact relating to the lawfulness of a search.” United States v.
Mejia, 69 F.3d 309, 318 (9th Cir. 1995). Although Franklin contends it was
contested whether the certified copies of the complaint, warrant, and return of the
warrant introduced by the government were sufficient to prove a warrant had been
issued prior to the search, Franklin offered no evidence to support the unsworn
allegations in the memorandum accompanying his suppression motion. Standing
alone, Franklin’s unsworn, unsubstantiated assertions in the suppression
memorandum did not constitute “an offer of proof ‘sufficiently definite, specific,
detailed, and nonconjectural to enable the court to conclude that contested issues of
fact going to the validity of the search [were] in question.’” United States v.
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DiCesare, 765 F.2d 890, 896 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985)
(quoting United States v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974)). Absent such
evidence, the district court was not required to hold an evidentiary hearing.
Nor did the court err in ruling that probable cause supported the search
warrant. The complaint in support of the warrant application was based on two
controlled buys of crack cocaine executed less than three months before the search,
and one attempted controlled buy executed eight days before the search, during
which Franklin told a confidential informant he was selling drugs at that time. This
court “evalute[s] staleness ‘in light of the particular facts of the case and the nature
of the criminal activity and property sought.’” United States v. Pitts, 6 F.3d 1366,
1369 (9th Cir. 1993) (quoting United States v. Greany, 929 F.2d 523, 525 (9th Cir.
1991)). Taking the three incidents together, the information in the complaint was
not stale. See id. at 1369-70 (holding that the information in an affidavit was not
stale where it “support[ed] the inference that Pitts was more than a one-time drug
seller” and recounted a sale 121 days before the search); United States v. Angulo-
Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (“With respect to drug trafficking,
probable cause may continue for several weeks, if not months, of the last reported
instance of suspect activity.”).
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The complaint was also supported by personal knowledge. It listed the
officers and confidential informants involved in the investigation and their various
roles in the three controlled buys. The motion to suppress therefore was properly
denied.
2. The court appointed four different attorneys to represent Franklin; each
attorney moved to withdraw as counsel. The court granted the first three attorneys’
motions. It did not err by declining to grant yet another motion to substitute
counsel and by giving Franklin the choice between the extant lawyer and no
lawyer. In reviewing a district court’s denial of a motion to substitute counsel for
abuse of discretion, we consider “whether the asserted conflict was so great as to
result in a complete breakdown in communication and a consequent inability to
present a defense.” United States v. Lindsey, 634 F.3d 541, 554 (9th Cir. 2011)
(quoting United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2005)). The conflict
between Franklin and his fourth appointed attorney was not irreconcilable. The two
clashed primarily over litigation strategy; strategic or tactical disagreements do not
constitute a complete breakdown in communication. Stenson v. Lambert, 504 F.3d
873, 886 (9th Cir. 2007). Furthermore, that Franklin had already fired three
appointed attorneys over strategic disagreements suggested that Franklin was likely
to precipitate a similar disagreement with a new appointed lawyer. When a
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defendant acts unreasonably, the court may deny a motion for new counsel without
abusing its discretion. See United States v. Mendez-Sanchez, 563 F.3d 935, 944
(9th Cir. 2009); United States v. Roston, 986 F.2d 1287, 1292 (9th Cir. 1993).
3. But the district court did err in allowing Franklin to represent himself at
sentencing without having first given adequate Faretta cautions. See Faretta v.
California, 422 U.S. 806 (1975). “In order to deem a defendant’s Faretta waiver
knowing and intelligent, the district court must insure that he understands 1) the
nature of the charges against him, 2) the possible penalties, and 3) the ‘dangers and
disadvantages of self-representation.’” United States v. Erskine, 355 F.3d 1161,
1167 (9th Cir. 2004) (quoting United States v. Balough, 820 F.2d 1485, 1487 (9th
Cir. 1987)). The government admits that “the [district] court did not . . . explain the
charges or penalties Franklin faced” during the sentencing hearing. Although the
potential penalties were described to Franklin at his initial appearance in July 2011,
two-and-a-half years prior to his waiver, and Franklin indicated at his sentencing
hearing that he may have read the presentence report, Franklin stated just minutes
before he waived his right to counsel that he was “facing 20 years.” In fact, the
maximum potential sentence he faced was life imprisonment plus five years. His
statement thus indicates that he did not understand the potential penalties.
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Moreover, the district court gave no warning specifically about the dangers
of self-representation at sentencing. To satisfy the “dangers and disadvantages”
warning requirement, the court must do more than “suggest[] that there are
consequences in the abstract.” United States v. Hayes, 231 F.3d 1132, 1137 (9th
Cir. 2000). The court must offer “some instruction or description, however
minimal, of the specific dangers and disadvantages of proceeding pro se.” Id. at
1137-38. Here, the district court simply warned Franklin that self-representation
was unadvisable because he lacked legal knowledge and understanding relative to
his appointed attorneys. That warning was insufficient.
We therefore affirm the convictions, but vacate Franklin’s sentence and
remand the case for a new sentencing proceeding. See Erskine, 355 F.3d at 1170
n.12 (“Faretta error is not subject to the harmless error rule.”); United States v.
Yamashiro, 788 F.3d 1231, 1236 & n.1 (9th Cir. 2015).
4. We do not reach the ACCA or other sentencing questions because they
may not arise on remand.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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