United States v. Franklin

51 F.4th 391

UNITED STATES of America, Appellee,

v.Darren FRANKLIN, Defendant, Appellant.

No. 21-1880

United States Court of Appeals, First Circuit.

October 20, 2022

Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & Teitelbaum LLP were on brief, for appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

Before Barron, Chief Judge, Selya and Howard, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Darren Franklin challenges the district court's decision to admit and consider hearsay evidence when revoking his term of supervised release. After careful consideration, we find his challenge wanting and affirm the judgment below.

I

Drawing from the record compiled in the district court, we briefly rehearse the relevant facts. On April 30, 2007, the appellant was convicted by a jury of possessing and distributing cocaine base (crack cocaine) and of being a felon in possession of ammunition. See 21 U.S.C. § 841(a)(1) ; 18 U.S.C. § 922(g)(1). The district court sentenced him to serve a thirty-year term of immurement, to be followed by a twelve-year term of supervised release.

Following the passage of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, the appellant moved to have his sentence reduced. On October 24, 2019, the district court granted that motion, resentencing him to a prison term of eighteen years (which was effectively a sentence of time served). On November 1, 2019, the appellant began serving his twelve-year term of supervised release under several conditions — among them, that he not commit any federal, state, or local crime.

On March 17, 2021, United States Probation Officer Kara Lightowler paid the appellant an early morning visit at his home in Quincy, Massachusetts, where he resided with his longtime girlfriend, Nicola Clark, and their children. Lightowler testified that the appellant greeted her when she arrived, and they made small talk for a few moments before she asked him to provide a urine sample for a routine toxicology screening. While he went to the bathroom, Clark emerged from the bedroom and appeared — according to Lightowler — to be in a state of some distress. Clark indicated that she wanted to speak privately with Lightowler, mouthing the words silently in apparent fear of the appellant overhearing their exchange. Lightowler gave Clark her business card.

When the appellant returned from the bathroom, Lightowler, sensing tension within the home and concerned for her own safety, asked if she could speak with him outside. There, the appellant told her that his relationship with Clark had become strained and that he wished to move out of the home. Lightowler informed him that the probation office would need to be apprised of such a move. Their conversation then turned to more quotidian affairs. Once Lightowler left the residence, she called and messaged Clark, but received no response.

Not long thereafter, Clark called 911, requesting emergency police assistance. She said that the appellant was involved in illegal activity — specifically, drug dealing — and that he had two weapons, possibly guns, at least one of them stowed in a black bag. She also said that she had been trying for some time to get him to leave the home and that when she had attempted to move his belongings out of the home that morning, he pushed her. She exhorted the police to come quickly as she suspected that he was hiding the weapons and drugs as she spoke. She also asked that the officers withhold from him that she was the one who had called 911, saying, "I'm scared. I don't want nothing to happen to me. So don't let him know."

Officer Christian Donovan of the Quincy Police Department was among those who responded to the 911 call. He testified that when he and the other officers arrived, the appellant was standing beside his car, which was parked with its tailgate open by the front porch at the top of the driveway. While the other officers spoke with the appellant, Donovan entered the home to speak with Clark.

Inside, Clark's teenage son was consoling her, telling her to cooperate with the police. According to Donovan, Clark was at first hesitant to speak, saying that she did not want the appellant to see her talking with police officers. Even so, she proceeded to tell him that she and the appellant had argued that morning both about money that he allegedly had taken from her and about her desire that he leave the home. She said that during the argument, the appellant had shoved her approximately five times. When she picked up the phone to call 911, he began to gather his belongings as a prelude to leaving the residence. At that time, she saw him pick up a small black rectangular pouch from which protruded the butt-end of a gun.

The police arrested the appellant on charges of domestic assault and battery based on the allegation that he had shoved Clark during their argument. Donovan then searched the area around the house with a dog specially trained to detect explosives and ballistics. After finding nothing in the backyard or street, Donovan led the dog to the front porch and the rear of the appellant's vehicle. Nearby, the appellant — upbeat and talkative despite being under arrest — was waiting to be taken to the police station. Upon seeing the dog, he said (with a smile) that he did not have any drugs. But when Donovan told him that the dog was trained to detect explosives and ballistics rather than narcotics, the appellant was crestfallen. The dog then alerted to a scent near the front porch, upon which the officers found a tackle box. Within that box were two black rectangular leather pouches, each containing a loaded semiautomatic pistol.

After the search, Donovan questioned Clark further about her allegations of domestic violence. This questioning included queries about whether the appellant had assaulted Clark in the past. According to Donovan, Clark responded that two months before, she and the appellant had been arguing in the kitchen when their son came to her defense. Enraged, the appellant grabbed a frying pan from the stove and swung it, missing the son but striking Clark. She told Donovan that she had not reported the incident at the time because she had not wanted the appellant to be sent back to prison.

The appellant called Lightowler to tell her of the arrest. The appellant stated that Clark had reported to police that he had hit her and that a gun had been found at his house. He did not say to whom the gun belonged.

Lightowler also spoke on the phone with Clark (who was concerned that the appellant's family would blame her for his renewed incarceration). She mentioned to Lightowler, presumably while describing the events leading up to the appellant's arrest, that she had seen the appellant carry a black pouch with him as he gathered his belongings.

On the following day, a criminal complaint was lodged against the appellant, charging him with weapons and assault offenses under state law. Lightowler reported those charges to the district court and petitioned for the issuance of an arrest warrant. The district court issued the warrant. Revocation proceedings were then commenced.

At the revocation hearing, the government did not call Clark as a witness and instead relied upon the testimony of Lightowler and Donovan to present her statements. The appellant objected to the admission of such hearsay evidence on the ground that Clark's statements were unreliable: he identified what he viewed as factual inconsistencies in her statements; he asserted that she offered her statements to police out of spite due to his meretricious relationships with other women; and he drew attention to discrepancies between Clark's statements to police and her testimony before the state grand jury (where she minimized the physical confrontation between her and the appellant on March 17 and equivocated when asked about the firearms she saw that day). But at no time during the final revocation hearing did the appellant object on the ground that the admission of the statements violated his right to confront and cross-examine the witness.

Based on the testimony of Lightowler and Donovan, as well as other evidence presented at the hearing, the district court found by a preponderance of the evidence that the appellant was guilty of several crimes, including possession of a firearm without a license, see Mass. Gen. Laws ch. 269, § 10(h)(1) ; improper storage of a firearm, see id. ch. 140, § 131L(a); and assault with a dangerous weapon, see id. ch. 265, § 15B(b). The district court also found the appellant guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The court then revoked the appellant's term of supervised release and sentenced him to a new three-year term of immurement.¹ This timely appeal ensued.

II

In a revocation hearing, a court is not bound by the Federal Rules of Evidence. See Fed. R. Evid. 1101(d)(3). By the same token, a releasee is not afforded a Sixth Amendment right to confront adverse witnesses. See United States v. Fontanez, 845 F.3d 439, 443 (1st Cir. 2017). Hearsay evidence may thus be admitted as long as it is reliable. See United States v. Portalla, 985 F.2d 621, 622, 624 (1st Cir. 1993). Even so, a releasee retains a limited right under the Federal Rules of Criminal Procedure to confront an adverse witness unless "the court determines that the interest of justice does not require the witness to appear." United States v. Mulero-Díaz, 812 F.3d 92, 95 (1st Cir. 2016) (quoting Fed. R. Crim. P. 32.1(b)(2)(C) ). To make such a determination, a court must balance a releasee's right to confront the witness with "what good cause may exist for denying confrontation in a particular instance." Fontanez, 845 F.3d at 443. And constructing that balance requires weighing the reliability of the hearsay statement against the reasons proffered by the government for the witness's absence. See ...