U.S. v. Franklin
| Decision Date | 19 July 2005 |
| Docket Number | No. 03-2440.,No. 03-2439.,03-2439.,03-2440. |
| Citation | 415 F.3d 537 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marcus FRANKLIN (03-2439); Jamaal Clarke (03-2440), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Douglas R. Mullkoff, Ann Arbor, Michigan, Mark H. Magidson, Detroit, Michigan, for Appellants.
Sarah Resnick Cohen, Assistant United States Attorney, Detroit, Michigan, for Appellee.
Before: DAUGHTREY and CLAY, Circuit Judges; SCHWARZER, District Judge.*
In these consolidated cases, we consider the appeals of two defendants who were convicted after a jury trial. Defendant Marcus Franklin appeals his convictions for attempted bank larceny, 18 U.S.C. § 2113(a); bank larceny, id. § 2113(b); conspiracy to commit bank robbery, 18 U.S.C. §§ 371, 2113(a); bank robbery, id. § 2113(a); and brandishing a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A)(ii). Defendant Jamaal Clarke appeals his convictions on charges of conspiracy to commit bank robbery, 18 U.S.C. §§ 371, 2113(a); bank robbery id. § 2113(a); and brandishing a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A)(ii). A jury found the co-defendants guilty after a joint 10-day trial in July 2003. Clarke presents numerous claims of error, including the erroneous admission of hearsay testimony, sufficiency of the evidence, and ineffective assistance of counsel. Franklin claims that the admission of certain hearsay testimony violated his rights under the confrontation clause of the Sixth Amendment. Both defendants seek re-sentencing on the ground that their sentences were determined in a manner that violated the Sixth Amendment. We affirm the defendants' convictions but remand for re-sentencing.
From December 1998 to December 1999, Marcus Franklin worked for Guardian Armored Services, an operator of ATM machines and armored trucks in Detroit, Michigan. While at Guardian, Franklin serviced ATM machines, which necessitated that he carry a special computerized key (the "F Key"). To open an ATM machine for servicing, Franklin would use the F Key and simultaneously enter a code. The F Key is necessary, but not sufficient, to access the cash inside an ATM; to accomplish that feat, one requires both an F Key and a "top hat" or "hatch" key. Franklin's duties did not involve the cash inside machines and consequently he possessed only an F Key.
At the end of 1999, Franklin entered the Detroit Police Academy and resigned his post at Guardian. However, Franklin did not return his F Key to Guardian. Soon after beginning at the academy, Franklin procured a hatch key from Wallace Stinson, a Guardian employee with whom Franklin had worked. In exchange for the key, Franklin promised Stinson a share in the proceeds of ATM robberies he was then contemplating. Franklin recruited another Guardian employee, Christopher Martin, to assist in the commission of the robberies. On the night of February 27, 2000, and into the morning of February 28, Franklin, masked and armed with a gun, robbed two ATM machines in the city of Detroit, netting $100,000. Franklin's attempt to rob a third ATM machine failed. Martin drove Franklin to the various machines. These crimes resulted in two charges of bank larceny and one charge of attempted bank larceny against Franklin.
The ATM robberies went unsolved. Meanwhile, Franklin graduated from the police academy and, in May 2000, joined the Detroit Police Department's 9th precinct. Around this time, according to Stinson's trial testimony, Franklin proposed that the two rob an armored truck. Stinson and Franklin devised what they believed was an ideal truck robbery. Every Monday, late at night, Guardian truck number 106 serviced an ATM at the NABI Biomedical Center in Southgate, Michigan. Through surveillance, the two determined that the ATM was in a secluded area. Moreover, Stinson knew that the truck typically carried $1 million. Stinson obtained keys to open the truck's doors and its currency storage area. Defendant Clarke agreed to assist Stinson and Franklin and on the evening of September 11, 2000, the three — armed and wearing masks — proceeded to the location of the ATM machine. After midnight, truck 106 arrived. In it were Timothy Leake, the driver; Effram Coleman, the "balancer," who services the ATM machines; and Julie Campbell, the guard who protects the balancer.
Leake parked the truck in a driveway near the entrance to the building containing the ATM machine. After Coleman and Campbell entered the building, Franklin opened the driver's side door of the truck and, with a gun pointed at Leake's head, ordered Leake to move to the passenger's side. Franklin then drove the truck to a more secluded spot where Franklin and Clarke ordered Leake to open the cargo area of the truck. At some point thereafter, Clarke hit Leake over the head with a gun. Next, Franklin and Clarke locked Leake in the cage area of the truck as they gathered approximately $754,968 in cash. At trial, Leake testified that he witnessed another individual waiting for Franklin and Clarke in a getaway car. After the robbery was complete, Franklin called Stinson, leaving a message for him to return the call. On the morning of September 12, Stinson reached Franklin by phone; Franklin instructed him to come to Franklin's apartment, which Stinson did. According to Stinson's trial testimony, Franklin explained that he and Clarke had just completed the truck robbery; Franklin then gave Stinson $100,000, stored in garbage bags.
On February 28, 2000, the police arrested Christopher Martin for driving without a license. Under questioning by the Detroit Police and the FBI, Martin denied knowledge of or involvement in the previous night's ATM robberies. Ultimately, Martin admitted his involvement and agreed to cooperate in the FBI's investigation of the ATM robberies and the robbery of the armored truck. On September 12, 2000, Stinson rented a storage unit in which he deposited his $100,000 share from the truck robbery. On September 13, 2000, FBI agents executed a search warrant on the storage area and discovered the money. Some two weeks later, in an interview with FBI agents, Stinson implicated Franklin in the robberies and agreed to cooperate with the FBI. The FBI reviewed phone records and identified several calls between Franklin, Clarke and Stinson; soon thereafter, agents executed search warrants at Franklin's Detroit apartment and at his mother's home in Dearborn, Michigan. The agents also searched Franklin's car. The searches uncovered two handguns, a rifle, boxes of ammunition, magazines for the handguns, a bullet proof vest, sheets of paper on which Stinson and Clarke's names and phone numbers were written, collection letters from Franklin's creditors, a list indicating an intent to pay for various new high-priced items (e.g., a car, furniture and a TV set) in cash, and other items.
Martin and Stinson ultimately pled guilty and testified against Franklin and Clarke at trial. The jury convicted Franklin and Clarke on all of the charges against them. The district court sentenced Franklin to 97 months of imprisonment on his convictions for bank robbery, attempted bank larceny, and bank larceny; to 60 months on his conviction for conspiracy to commit bank robbery, to run concurrently with the 97 month sentence; and to a mandatory consecutive term of 7 years on his conviction for brandishing a firearm, see 18 U.S.C. § 924(c)(1)(A)(ii). The court sentenced Clarke to 60 months of imprisonment on his conviction for conspiracy to commit bank robbery; to 70 months for his conviction for bank robbery, to run concurrently with the 60 month sentence; and to a mandatory consecutive term of 7 years on his conviction for brandishing a firearm. The court also sentenced Franklin and Clarke to 3 years each of supervised release on all charges, to be served concurrently. Finally, the court ordered Clarke to pay $653,790 in restitution and Franklin to pay $755,500.
Franklin contends his conviction must be reversed on the ground that the district court admitted as evidence against him the testimony of Walter Wright regarding the out-of-court statements Franklin's non-testifying co-defendant, Clarke, made to Wright. According to Franklin, the admission of this testimony abridged his Sixth Amendment right to confront the witnesses against him. We review this claim de novo, see United States v. Robinson, 389 F.3d 582, 592 (6th Cir.2004); United States v. McCleskey, 228 F.3d 640, 643-45 (6th Cir.2000), and affirm.
Walter Wright, a longtime friend of Jamaal Clarke (Wright testified that he had known Clarke for 15 years), testified before the grand jury and later at trial. Wright recounted out-of-court statements made to him by Clarke; these statements inculpated Franklin. Wright's grand jury testimony, which was reluctant, centered on a conversation Wright and Clarke had a short time after the truck robbery. Wright testified that a few weeks after the robbery, he noticed Clarke acting "paranoid" and "stressed out." This concerned Wright and he asked his friend what was on his mind. According to Wright's grand jury testimony, Clarke then confided in Wright that he was afraid the "feds" had him under surveillance because "we hit a truck." J.A. 685-87. Wright then explained that Clarke had referred to Franklin during the conversation:
Wright then testified that...
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