United States v. Franklin

• Decision Date: 23 November 2021
• Docket Number: No. 20-30136,20-30136
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kielan Brett FRANKLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 1105

UNITED STATES of America, Plaintiff-Appellee,

v.Kielan Brett FRANKLIN, Defendant-Appellant.

No. 20-30136

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2021 Seattle, Washington

Filed November 23, 2021

Dwight J. Schulte (argued), Schulte Law Firm P.C., Missoula, Montana, for Defendant-Appellant.

Timothy J. Racicot (argued) and Julie R. Patten, Assistant United States Attorneys; Leif M. Johnson, Acting United States Attorney; United States Attorney's Office, Billings, Montana; for Plaintiff-Appellee.

Before: Danny J. Boggs,^* Marsha S. Berzon, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Boggs;

Concurrence by Judge Berzon

BOGGS, Circuit Judge

Kielan Franklin pleaded guilty to one count of aiding and abetting the possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii) and 2, and one count of robbery affecting interstate commerce (also called "Hobbs Act robbery"), in violation of 18 U.S.C. § 1951(a). Appealing his conviction on the firearm charge, he argues that Hobbs Act robbery is not categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A). He also appeals his sentence, contending that the district court relied on hearsay evidence so lacking in indicia of reliability that the court violated his due-process rights. Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we affirm.

I. Background

A. Events Leading Up to the Robbery

Kielan Franklin and Arielle Cowser were an unmarried couple who had one child together. They both used heroin. While living in Helena, Montana, they developed a relationship with B.G. and S.G. (the "victims"), a married couple who also used heroin.

In March 2019, Mr. Franklin gave the victims $1,200 to go to Spokane, Washington, and buy an "ounce," meaning twenty-four grams, of heroin.¹ But the price of heroin had increased, and the money would buy only twenty grams. During the trip, Mr. Franklin and Ms. Cowser frequently texted and called the victims using Ms. Cowser's phone to get status updates, but—losing patience—the victims eventually stopped responding. It took longer than Mr. Franklin had expected for the victims to return from Spokane, partially because of heavy snow and partially because B.G. had a habit of doing tasks slowly. The victims also testified that they had sampled some of the heroin before their return. When the victims finally returned, B.G., believing he was eight grams shy of an ounce, tried to "cut" the heroin—that is, add sugar to it—to make twenty-eight grams. B.G. had little experience in cutting heroin and did a poor job of it.

Already upset by the victims' lack of communication, Mr. Franklin went to the victims' house; Ms. Cowser went with him. Mr. Franklin became even more upset after he found that the quality of the heroin was much worse than he had expected—heavily diluted and poorly blended with the sugar. Mr. Franklin told the victims that they owed him double his money back. After leaving, Mr. Franklin continued to text the victims, his messages becoming increasingly threatening.

B. The Robbery²

On the morning of March 8, 2019, Mr. Franklin, Ms. Cowser, and Gerald Hiler and Morgan Pitsch (the two other codefendants in this case) were at the house of Corissa Soltis. At some point, Mr. Franklin and Ms. Cowser had texted Mr. Hiler "about going out and making a collection on these people." Mr. Franklin, still upset about the missing heroin and money, asked Mr. Pitsch to "go over to a house with him" to get either the drugs or the money. The four left Ms. Soltis's house in Mr. Franklin's Jeep.

While they drove, Mr. Franklin told the other three his plan to rob the victims. Ms. Cowser's job was to enter the victims' house first and leave the door unlocked for the other three. Mr. Hiler was armed with a silver handgun, and he was to act as the "muscle," the most aggressive of the three. Mr. Pitsch was armed with both an aluminum baseball bat and a black pistol that Mr. Franklin had given him.

The group dropped Ms. Cowser off outside the victims' house. Ms. Cowser lied to the victims, saying that she and Mr. Franklin had been fighting and that he had left her "in the middle of nowhere" on the frigid, snowy night. Over B.G.'s protest, S.G. let Ms. Cowser inside. A few minutes later, on their security cameras, the victims noticed someone outside. Ms. Cowser approached the front door, and B.G. told her: "Don't open the door." Before the victims could stop her, Ms. Cowser had let in Mr. Franklin, Mr. Hiler, and Mr. Pitsch.

Ms. Cowser told the three men that the drugs were upstairs and advised them to make sure that the victims did not have their phones. Even so, S.G. discreetly called 911 with a cell phone that she hid under a blanket. During the robbery, she made statements such as "I'm really, really scared" to alert the operator about what was happening. Eventually, Mr. Hiler found the phone and hung up the call. The four defendants decided to make a quick getaway with a small amount of the victims' property—S.G.'s wedding rings, her phone, a purse, about $100, and about a gram of heroin.

C. Proceedings Below

Mr. Franklin and Ms. Cowser were each charged with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) ; one count of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a), 2; and one count of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 2. Mr. Hiler and Mr. Pitsch were also charged in connection with the robbery. The grand jury also alleged that the firearm in the third count had been brandished. If proved at trial, that fact would subject each defendant to a mandatory minimum sentence of seven years consecutive to any other sentence imposed. 18 U.S.C. § 924(c)(1)(A)(ii).

Mr. Franklin moved to dismiss the firearm count against him. He argued that neither the conspiracy charge nor the substantive robbery charge, either on its own or under an aiding-and-abetting theory or Pinkerton -liability theory,³ was a crime of violence under § 924(c). The district court denied the motion.

Mr. Franklin and Ms. Cowser both initially intended to try their cases to a jury, while Mr. Hiler and Mr. Pitsch entered into plea agreements. Shortly after the district court accepted those guilty pleas, Mr. Franklin also entered into a plea agreement, admitting guilt to the substantive robbery count and the firearm-possession count.

But during his change-of-plea hearing, when asked to admit to the factual basis the government had proposed, Mr. Franklin balked. He instead maintained, under oath, that he had only wanted to talk to the victims to get his money back from them. Mr. Franklin asserted that he had first sent Ms. Cowser into the house to try to talk with the victims. Then, after telling Mr. Hiler and Mr. Pitsch to stay in the car, Mr. Franklin went to the house himself. Mr. Franklin claimed that he did not know that the other two codefendants had been armed and that they had disobeyed him by running into the house about a minute later, waving their guns. Mr. Franklin also claimed not to have known that anyone had stolen anything until after the four had all returned to Mr. Franklin's Jeep. In light of these contentions, the court rejected the plea agreement, and Mr. Franklin pleaded not guilty.

In November 2019, shortly after the abortive plea hearing, Mr. Hiler met with FBI Special Agent Jason Bowen for an in-person interview. At that interview, he told Special Agent Bowen that Mr. Franklin had sent him a note (which the jail staff would provide to Special Agent Bowen). The note said, in part:

Now that I know you have plead [sic] out I want to respectfully request your help.... All I need from you is to state the truth[.]

1. I never asked you guys to rob anyone

2. I didn't know there were guns on anyone

3. I said to stay in the car so I could talk to homeboy

4. Curly had his own peice [sic] and I had nothing to do with it. He got it before the alleged incident.

The note's author was also aware that "Curly" (a nickname for Mr. Pitsch, according to Mr. Hiler) had been "squawking"—talking to the government about the robbery in this case.

Mr. Hiler later told Special Agent Bowen that he had been assaulted by two other inmates after telling the government about the note. The attackers told Mr. Hiler that Mr. Franklin had told them to "slap [him] around." Mr. Hiler sustained "[v]ery minor injuries" to the inside of his mouth as a result.

Mr. Hiler also said that he had written a response note to Mr. Franklin. In that response, which he had written "to get [Mr. Franklin] off of his back," Mr. Hiler wrote that the government had been threatening to rescind his plea agreement. At some point, Mr. Hiler gave a copy of his response note to Special Agent Bowen. The record is not clear as to when or even whether Mr. Hiler sent the response note to Mr. Franklin, when Mr. Hiler gave Special Agent Bowen a copy of the response note, or whether the copy that Special Agent Bowen received was the original or a duplicate.

During an in-person interview, Mr. Pitsch told Special Agent Bowen that Mr. Franklin had also contacted him. Mr. Franklin had warned him that "he would be on paper, and that he should be careful." Interpreting Mr. Franklin's statement as a threat that he would be branded as a snitch, Mr. Pitsch asked for a transfer to a different detention facility.

Based on these reports from Mr. Hiler and Mr. Pitsch, the government obtained a superseding indictment charging Mr. Franklin with two counts of witness tampering, in violation of 18 U.S.C. § 1512(b)(1). Mr. Franklin signed a second plea agreement, accepting guilt for the substantive robbery count and the firearm count in exchange for dismissal of the Hobbs Act conspiracy and the witness-tampering counts. In that agreement, he reserved his right to appeal the district court's denial of his motion to dismiss the firearm count;...