United States v. Franklin

• Decision Date: 08 September 2021
• Docket Number: CRIMINAL ACTION NO. 06-CR-10362-RWZ
• Parties: UNITED STATES of America v. Darren FRANKLIN
• Court: U.S. District Court — District of Massachusetts

560 F.Supp.3d 398

UNITED STATES of America

v.Darren FRANKLIN

CRIMINAL ACTION NO. 06-CR-10362-RWZ

United States District Court, D. Massachusetts.

Signed September 8, 2021

Sabita Singh, Thomas E. Kanwit, United States Attorney's Office, Boston, MA, for United States of America.

MEMORANDUM & ORDER

ZOBEL, S.D.J.

On April 30, 2007, defendant Darren Franklin was convicted by a jury of distributing cocaine base and being a felon in possession of ammunition. He was originally sentenced to a term of imprisonment of 360 months, which was reduced to 216 months on October 24, 2019 pursuant to amendment of the Fair Sentencing Act, 21 U.S.C. § 841. In addition, he was sentenced to 12 years of supervised release with conditions that he not commit another federal, state, or local crime, and that he not associate with any person convicted of a felony unless given permission to do so by Probation. (Docket # 76 at 3).¹ Defendant started the period of supervised release on November 1, 2019 and is now accused of violating these two conditions of his release.

I. Findings of Fact

On August 19th and 20th, the court held an evidentiary hearing pertaining to the alleged violations. The evidence included a number of documents and the testimony of two witnesses: Officer Christian Donovan with the Quincy Police Department, and U.S. Probation Officer Kara Lightowler, defendant's Probation supervisor.

I find the facts as follows.

On the morning of March 17, 2021, Ms. Lightowler visited defendant's home. She encountered Ms. Nicola Clark, the mother of two of his children. Ms. Clark asked to speak with Ms. Lightowler privately. They were not able to do so that morning, but Ms. Clark requested and received Ms. Lightowler's business card.

Several hours later, after Ms. Lightowler had left the residence, Ms. Clark called 911. According to a transcript of the call, Ms. Clark reported that defendant had drugs and guns in his possession, as well as several thousand dollars in cash. (Ex. 8). More specifically, she stated that he had two guns in black bags. She also told the 911 dispatcher that she had tried to call his probation officer to report him but was unable to reach her. Ms. Clark expressed concern for the safety of her children and herself and stated that she wanted defendant to leave the house. She also reported her concern that defendant might try to "stash" the weapons and drugs because he had been outside and out of her line of sight for five minutes. Lastly, she told the dispatcher that she felt badly for calling the police knowing that defendant could face imprisonment, but said she did not know what else to do.

In response to the 911 call, Officer Donovan went to the house with a K9 dog trained to detect ammunition and firearms. He spoke with Ms. Clark, who told him that she had seen defendant with a black leather pouch which contained a gun. She further noted that he had been outside near his vehicle at one point, during which time she had lost sight of him. Because Ms. Clark also reported that defendant had shoved her several times that morning, Officer Donovan reviewed a domestic violence checklist with her. He asked Ms. Clark if she had been the victim of domestic abuse by defendant on previous occasions. She responded that, several months prior, he had been arguing with her in their kitchen. When their seventeen-year-old son heard the commotion, he tried to intervene. Upset at the interruption, defendant raised and swung a frying pan to strike his son and Ms. Clark stepped between them. She did not file a police report of the incident after it happened because, as she told Officer Donovan, she did not want defendant to go back to prison. Defendant, meanwhile, had been standing near a vehicle parked in the driveway when the police arrived.

After Ms. Clark reported that defendant had shoved her, he was placed under arrest. Officer Donovan led the K9 outside to search the exterior of the property for firearms. When approaching the front porch of the house and the back of the vehicle where defendant was standing (all within a five-foot radius), the dog began "bracketing" in response to an odor. Officer Donovan and another officer, Sergeant Duggan, obtained defendant's consent to search the vehicle and porch. Sergeant Duggan found a "tackle box type container" on the porch that held two pouches, each of which contained loaded semiautomatic pistols. One of them was a Glock large capacity firearm with a magazine capable of holding thirteen bullets.

On the day of defendant's arrest, Ms. Lightowler received a telephone call from Ms. Stephanie Rivera, who said that she was in a relationship with defendant.² She told Ms. Lightowler that she had been on federal probation at one time. Ms. Lightowler confirmed this by searching Probation records and saw that Ms. Rivera had been on supervised release until March 2018. The docket sheet in Ms. Rivera's case indicates that she was convicted of distributing cocaine base. (Ex. 2). Ms. Rivera did not tell Ms. Lightowler that defendant knew she was a convicted felon, nor did Ms. Lightowler ask Ms. Rivera or defendant whether he was aware of that fact.

A criminal complaint filed in Quincy District Court on March 18, 2021 charged defendant with several state crimes, including assault with a dangerous weapon, possession of a large capacity firearm, improper storage of a large capacity firearm, possession of a firearm without a firearm identification ("FID") card, and larceny. (Ex. 4). Defendant was later indicted on the firearms and larceny offenses only. (Ex. A).

II. Alleged Violations

As noted, the probation officer accused defendant of violating two conditions of supervised release: (1) that he not commit another federal, state, or local crime, and (2) that he not associate with a person convicted of a felony absent permission from Probation.

A. Violating Another Federal, State, or Local Crime

The Government cites defendant's March 2021 criminal complaint though it relies not only on those alleged state crimes, but also several federal crimes: possession and improper storage of a firearm, being a felon in possession of a firearm, and assault with a dangerous weapon.³ The assault charge was later dropped, but the firearms charges are still pending in state court.

If a defendant on supervised release "commit[s] a new crime, even if they're not convicted (i.e., found guilty beyond a reasonable doubt after a full-dress trial or plea), a federal district court may find they more-likely-than-not committed it, revoke their supervised release, and send them back to prison." United States v. García-Cartagena, 953 F.3d 14, 15 (1st Cir. 2020) ; see United States v. Lapinski, No. 92-1867, 1993 WL 138528, at *5, 1993 U.S. App. LEXIS 10070 at *23 (1st Cir. May 3, 1993) (stating that "the revocation of supervised release does not require a conviction of a separate federal, state, or local crime. Indeed, a violation of the standard condition of supervised release—that a defendant shall not commit another federal, state, or local crime—may be found whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct."); U.S.S.G. § 7B1.1, comment. (n.1) ("Under 18 U.S.C. §§ 3563(a)(1) and 3583(d), a mandatory condition of probation and supervised release is that the defendant not commit another federal, state, or local crime. A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct.").

Accordingly, this court may conclude that defendant committed a crime, regardless of any underlying charge or conviction, if it finds that the evidence presented at the revocation hearing supports that conclusion by a preponderance of the evidence. See United States v. Frederickson, 988 F.3d 76, 85 (1st Cir. 2021) ("To prove [defendant] violated the terms of his supervised release, the government needed only to show by a preponderance of the evidence that he committed a crime while on supervised release."); United States v. Rentas-Felix, 235 F. Supp. 3d 366, 381 (D.P.R. 2017) ("[T]he revoking court bases its decision, not on ... [a] resulting state conviction, but on the evidence presented at the revocation hearing." (citing Lapinski, 1993 WL 138528, at *5, 1993 U.S. App. LEXIS 10070, at *14 )).

1. Possession of a Firearm Without an FID Card ⁴

Defendant was charged in state court with possessing a firearm without an FID card, in violation of Mass. Gen. Laws ch. 269, § 10(h)(1). "The statute requires anyone possessing a firearm, rifle, shotgun or ammunition to have been issued a[n] ...FID card[ ]." Gutierrez v. Ryan, No. 14-cv-11995, 2015 WL 6468283, at *3, 2015 U.S. Dist. LEXIS 145622, at*7 (D. Mass. Oct. 1, 2015). " ‘[F]irearm’ shall mean any pistol, revolver, rifle or smoothbore arm from which a shot, bullet or pellet can be discharged." Mass. Gen. Laws ch. 269, § 10(j). "The elements of this offense are that the defendant (1) possessed, (2) a firearm, rifle, shotgun, or ammunition, (3) without complying with the FID card requirements." Bone v. AG of Mass., 150 F. Supp. 3d 140, 149 (D. Mass. 2015). "Under the law of the Commonwealth, the ‘absence of a license is not an element of the crime’ of possessing or carrying a firearm in violation of G. L. c. 269, § 10(h). The burden is thus on a defendant to come forward with evidence that he possesses a valid license." Commonwealth v. Parzick, 64 Mass.App.Ct. 846, 835 N.E.2d 1171, 1176 (2005) (citations omitted) (quoting Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977) ).

The evidence in this case showed that Ms. Clark made three separate statements to three different individuals regarding her belief that defendant had guns in his possession. See (Ex. 8 (911 call transcript); testimony of Officer Donovan and Ms. Lightowler). She consistently described having seen two guns and stated that defendant kept the guns in black pouches. The...