United States v. Hall

• Decision Date: 16 December 2021
• Docket Number: 20-4128,20-4144
• Parties: United States of America, Plaintiff-Appellee, v. Clayton Hall (20-4128); Gregory D. Franklin, II (20-4144), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

United States of America, Plaintiff-Appellee,
v.

Clayton Hall (20-4128); Gregory D. Franklin, II (20-4144), Defendants-Appellants.

Nos. 20-4128, 20-4144

United States Court of Appeals, Sixth Circuit

December 16, 2021

Argued: October 19, 2021

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:19-cr-00330-Donald C. Nugent, District Judge.

ARGUED:

James A. Jenkins, Cleveland, Ohio, for Appellant in 20-4128.

Jaime P. Serrat, Cleveland, Ohio, for Appellant in 20-4144.

Bryson N. Gillard, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

James A. Jenkins, Cleveland, Ohio, for Appellant in 20-4128.

Jaime P. Serrat, Marisa L. Serrat, Cleveland, Ohio, for Appellant in 20-4144.

Bryson N. Gillard, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges.

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OPINION

RONALD LEE GILMAN, CIRCUIT JUDGE.

Clayton Hall and Gregory Franklin, II were convicted by a jury for engaging in a drug-trafficking conspiracy. The district court then sentenced each of them to a 360-month term of imprisonment. They collectively raise six issues on appeal, ranging from Hall's challenge to the composition of the jury to the sufficiency of the evidence against Franklin. For the reasons set forth below, we conclude that none of the claims have merit. We therefore AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

This case began with an investigation of Hall by the Cleveland Police Department in October 2018. Having received a tip concerning Hall's alleged drug trafficking during that month, officers arranged for a controlled buy from Hall at his residence. A confidential informant (CI), operating under the officers' guidance, called Hall at a phone number ending in "9712" to make the purchase. On October 24, 2018, the CI purchased drugs from Hall. The day after the controlled buy, officers obtained and executed a search warrant for Hall's Cleveland residence. They recovered various drugs, drug paraphernalia, and cash. The officers involved in the execution of the search warrant included Detective William Salupo and Detective Lawrence Smith. Hall was not present during the search, and the record does not indicate that he was contemporaneously arrested.

This cycle was repeated in November 2018. A CI called Hall at the number ending in "9712" and executed a controlled buy. The officers then obtained another search warrant for Hall's residence and again recovered drugs, drug paraphernalia, and cash. Hall, once more, was not present during the search, and the record does not indicate that he was contemporaneously arrested.

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In February 2019, officers were surveilling Hall when he conducted a drug transaction in a parked vehicle. As Hall began to drive away, the officers pulled him over, searched the vehicle, and arrested him. He was released from custody with an ankle monitor to track his location.

The Cleveland police received information that Hall was continuing to sell drugs after his release from jail. In March 2019, they conducted still another controlled buy. The officers obtained and executed a third search warrant on Hall's residence later that month. They recovered drugs, cash, and a cell phone during the search. Hall was arrested following this third search of his residence.

After Hall's arrest, officers monitored his telephone calls from the jail where he was incarcerated. Smith was one of the officers who listened in. The officers paid particular attention to a series of calls between Hall and a person with a phone number ending in "7941" who went by the moniker "Cousin D." Based on their investigation, the officers believed that Hall was working with Cousin D to continue Hall's drug-trafficking business while Hall was incarcerated. The two men discussed the details of paying Hall's phone bill and further discussed the names and numbers of individuals with whom Hall had done business. Hall also urged Cousin D to "get that s**t out" and not "let it just go down the drain." When Cousin D prompted Hall for a location of "it," Hall said that he did not want to provide the location on the jail's phone line.

The officers investigated Hall's connection to Cousin D and the "7941" number. On April 30, 2019, Smith arranged for a CI to make a controlled buy using Hall's phone number ending in "9712." Smith monitored the CI's call. The voice Smith heard answer the phone sounded like that of Cousin D. Smith had heard Cousin D's voice multiple times while listening in on Hall's previous jail calls. Cousin D said that he would be in a green truck for the purchase.

After the call, Smith and the CI went to the agreed-upon location to execute the controlled buy. After spotting the green truck, the CI approached the passenger side, stood at the truck for a short period of time, and returned to Smith's car without speaking to anyone else. When the CI returned to the car, he handed Smith the drugs purchased during the buy. The CI

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said that he had dealt with only the driver of the vehicle, not the passenger who was also in the truck. The driver had sold the CI crack cocaine and heroin for $60.

After the controlled buy, Smith dropped the CI off at a secure location while the remaining members of Smith's unit surveilled the green truck. When the truck began to drive away, takedown units stopped the vehicle. Smith's team had surveilled the truck from the moment of the buy until the moment of the stop. No one came into or out of the truck during that time.

Detective William Mazur approached the truck after the takedown units had stopped it. He detected a strong smell of marijuana coming from the vehicle. According to Mazur, Franklin confirmed that there was marijuana inside.

Mazur began to search the driver's side of the truck for evidence when he noticed that the center console "had been manipulated to the point where it was loose [such that he] could see through it." When Mazur looked behind the console, he saw some kind of knit cloth. Mazur believed that this "knitting" did not belong behind the console based on his previous experience searching vehicles. Before examining the knitting more closely, Mazur found a burnt marijuana cigar. Another officer found a white substance that he thought was crack cocaine. Even after removing these items, the smell of marijuana persisted.

Mazur believed that there were additional drugs in the truck due to the persistent smell of marijuana, so he continued the search. He searched behind the console where he had seen the knit cloth. Mazur found large quantities of drugs as well as the knit cloth, which, he realized, was actually a hat containing a scale. In total, the officers recovered from the vehicle roughly 500 grams of cocaine, 300 grams of heroin, a loaded gun, marijuana, and the substance that the officers thought was crack cocaine.

The officers identified the owner and driver of the vehicle as Franklin. They found $1, 000 on Franklin's person, $60 of which was the prerecorded money from that day's controlled buy. The officers also recovered two cell phones from Franklin. One was the "9712" phone number that all of the CIs had used to schedule the controlled buys, which is generally referred to as Hall's "customer phone." The other was the "7941" phone number that Hall had regular

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contact with from jail, which is generally referred to as "Cousin D's phone." Franklin and the vehicle's passenger, Luther O'Neal, were both arrested following the April 30, 2019 stop.

B. Procedural background

1. Pretrial proceedings

In August 2019, a federal grand jury charged Hall and Franklin in an eleven-count superseding indictment for various drug crimes. Because only Franklin challenges the sufficiency of the evidence, we identify here those charges particularly relevant to him. Count 1 charged both Hall and Franklin with engaging in a conspiracy to distribute controlled substances from February 2019 through April 2019, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and (b)(1)(B); Count 8 charged Franklin with possession with the intent to distribute controlled substances on April 30, 2019, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); Count 9 charged Franklin with possession with the intent to distribute cocaine on April 30, 2019, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); Count 10 charged Franklin with being a felon in possession of a firearm and ammunition on April 30, 2019, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and Count 11 charged Franklin with possession of a firearm in furtherance of a drug-trafficking crime on April 30, 2019, in violation of 18 U.S.C. § 924(c)(1)(A).

On March 2, 2020, in anticipation of trial, the government filed notices of expert testimony by Detectives Salupo and Smith. Both notices outlined the officers' qualifications to serve as experts based on their years of experience, and further stated that the officers would testify regarding "the importance of a 'customer phone'" and the "slang or code [dealers use] when communicating about narcotics matters." The notices also stated that the officers would testify as fact witnesses based on their participation in the investigation.

Franklin filed a motion to suppress the statements and the contraband obtained during the April 30, 2019 search of his vehicle, and the government filed a response in opposition. The court addressed Franklin's motion to suppress and held oral argument immediately before trial on March 3, 2020.

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Detective Mazur testified during the suppression hearing. He explained that he has been an officer for 21 years, regularly investigated drug-trafficking offenses, and had conducted over 1, 000 traffic stops in cases of suspected drug trafficking. Mazur said that some of those stops involved drugs "concealed in hidden...