Legal Case Summary

. And in the second case, wasn't the gun touching the chest of one of the women? In the evidence. That's a little more than just brandishing. Brandishing to my mind is presentation or waving generally. And I agree the contact. The problem is it's the nexus with the request for the gun for the car. And in the first incident, there's actually not there's arguably there's what unfolds, but there's no specific request until it's basically we're going to borrow your car. I have your license and we know where you live and we'll bring it back. And at that point, there isn't testimony. I mean, there was he's the complainant observed the man in the back seat that had a gun pointed at him. But in terms of there's there's a period of time that elapses because he's describing what occurred that the front seat passenger went through his pockets and took out stuff. And then there's a discussion about his license and then either Mr. Franklin or one of the other code of finance, depending on what day it is, the complainant says one of them at least took his license and that Mr. Franklin is talking about the license. So in terms of the nexus between the gun and essentially the request for the car, I guess we'll call it lightly. I think there's a time differential there. And so at the time when Mr

. Franklin is apparently telling him we're going to take your car, but we're going to bring it back, that certainly doesn't insinuate to him. And you know, if you don't give it to us, we're going to kill you when he's basically insinuating, but we're going to bring it back to you. If he was insinuating, we're going to kill you. It doesn't matter if they know who he is or not. If they're insinuating, we're just going to kill you. He's saying don't call the police because we're going to bring the car back, not that we're going to do anything further to harm you. In the second incident, the testimony, and specifically, there's the testimony from Miss Ward, who's the person that said the person that she identified as Mr. Williams had held the gun to her chest. That is at the very beginning of the episode. They've stepped out of the car and then comes up to her and points the gun at her. And according to her, has it on her chest. Clearly, Mr. Williams disagrees with that, but assuming that the jury credited that, there's then a whole series of activities that occur before that same person says to her, give me your keys. And there's no evidence that the gun was still even brandished at that point to Miss Ward when he asked for the keys and she gives him the keys. And her testimony about being scared had to do really with the beginning of the episode outside of the car when her other persons possessions are being taken. And so I think it's a fine line, but the line that's drawn by the Supreme Court in Holloway and the subsequent quest law in this circuit and in other circuits is that there must be something in addition to a brandishing of the firearm at the point that someone's asking for the gun under the federal card, Jack and Statue

. Well, from whose point of view do we make that determination? Man, it's got the gun or the woman's gun being pointed at. It's objective, Your Honor. And I think that the case law is clear that it's not subjective to what the complainant or victim was thinking, but in terms of objectively what is the person doing. And if you look at all of the cases, particularly in this circuit, foster and the layoffs and atoms, which is the sixth circuit case, but that there's the physical touching at the point of asking for the car with the firearm or if there's not a physical touching with the gun that there's other assaultive behavior done in conjunction with the request for the vehicle or the vehicle. Or the demanding of the vehicle or the keys to the vehicle and that's simply not here in this case. The other issue that I would point to is in also in closing argument, the government even itself said that there are three different theories of Mr. Franklin's possession of a firearm by a convicted felon. And I think the problem is we don't know what the jury, we don't know which theory the jury convicted him of and given the case law and other circuits, if the jury didn't convicted him of actual possession, then there is a legal problem. And I think the evidence was not sufficient for the jury to find him in actual possession of the firearm after the bailout at the car. The complainant, I think it was Miss Green said that it was Mr. Williams that was closer to where the gun was. And I think it's speculating to say, well, it couldn't have been Mr. Williams that dropped the gun that must have been Mr. Franklin. I think that speculation at best and the other two theories would be either that Mr. Franklin is basically possessing it through a cons through an alleged conspiratorial or aiding in a betting theory for Mr

. Frazier or Mr. Williams. And the problem is that I think under the other circuits case law that that's insufficient for a felony possession to meet the elements of felony possession. And just for a moment to talk about the ineffective claim. And I think the government brings up the point that there was a criminal history done earlier in the case prior to trial. And I think the problem with that is, first of all, the criminal history that was done, the government itself disagrees with, which it found that Mr. Franklin was an armed career criminal. So I think the record is clear that if that was the information they did Mr. Franklin, he was not given the correct information about what his exposure was. And specifically the government even raises, well, defendants are told what the maximum is that they're facing. And while that's maybe true, Mr. Franklin was not told that he was facing a mandatory seven years on one count with a consecutive mandatory 25 years on another count. That was not that was not what was told to him. He was actually told that each count was a mandatory seven and not that they had to be consecutive to each other. So I think the record is actually clear that Mr. Franklin on the record was given misinformation about his exposure

. And clearly after trial tells the court, I wasn't told what I would be facing if I was convicted of trial. The court didn't deal with that. I think the court should have dealt with that. And since Mr. Franklin is on appeal, that's why we're asking for the case to be remanded for the court to deal with that issue. And if the court doesn't have any additional questions, I would reserve the rest of my time in rebuttal. Thank you very much, Mr. Williams. Thank you. Mr. Cipold, good morning. Morning, Madam. Morning. May it please the court? The government introduced more than substantial evidence to support the jury's finding that Fendant Franklin was a member of conspiracy that committed to card jackings in this case. I'm not going to belabor the court with every detail of the facts. It's in the record

. But essentially what happened that night were three men, Fendant Franklin, Troy Williams and Dwayne Frazier all decided to go to downtown Baltimore to rob persons. Mr. Williams, who in the middle of trial came forth and said that he wanted to cooperate, testified a trial. So that when they left the residents of Mr. Frazier that he knew Frazier had a gun, it was actually Mr. Franklin's idea to go downtown and rob people. I believe it was a Saturday night or a Friday or Saturday night. And Mr. Franklin said, hey, there would be money downtown. Let's go get some. There after the courts aware the first card jacking victim, Sean Gallion Thomas, as your honor pointed out, had the firearm put in his ribcage. Mr. Franklin took his license from his pocket and read it to him, which the victim perceived as a threat. That might not mean much in other parts, but in Baltimore City, if you have a gun pointed in your ribcage and someone holds your license, read your name and read your address, that's a pretty serious threat. And I think it's reasonable for the jury to infer that these defendants with a fully loaded 357 firearm would have taken some sort of action had Mr. Gallion Thomas not relinquished his vehicle to him

. With all due respect to the defense's argument, the intent requirement is not such that you have to actually prove this actual intent of defendant. That would be impossible. How could you ever prove the actual intent of a defendant in a trial if the defendant never testified or you had some sort of psychological or psychiatric testimony that would perhaps shed light on it. So what the Supreme Court has said is that the government doesn't have to prove the actual intent, but all that's necessary and sufficient is for the government to show that the defendant was conditionally prepared to act if the person or car jacking victim failed to relinquish the vehicle. And in this case, your honor, that evidence is more than sufficient for the jury to make that reasonable inference that the three men who got into the first vehicle pointed the firearm in the ribcage of the victim threatened him by reading his name and address and then forcing him out of this vehicle. This nonsense about returning the vehicle. There's no evidence that there's ever any intent to return that vehicle. They were going to return the vehicle. Why did they kick him out of the car and then why did they use a loaded firearm to convince him to let them use their vehicle. If he was going to return the vehicle, remember this all started out as an illegal cab on a hack, hack ride. He was going to take them wherever they wanted to go to earn some money to put gas in his car. It doesn't make sense. You believe the fence is version of the facts. The three men having control of the first vehicle drive a short distance to the location where the second car jacking occurred. They used the firearm again and actually they use the vehicle as a weapon to speak by blocking in the three victims so they couldn't leave the parking lot. Two men, Frank Williams, get out of the vehicle

. Williams has the firearm this time points the firearm right in miswards chest. That was her testimony. Her and your honor, her testimony a trial was that she believed that she was going to be shot and killed if she didn't do everything those men asked her to do that night. If that's not evidence for the jury to infer that these men would have caused serially injury or death, I don't know what it's. And again, your honors, the case law from the circuit supports the proposition that really a firearm is all that's necessary. The nor fleet case, the Granger case, the other cases cited in the government's brief. If support the proposition that a firearm and in this case a fully loaded firearm coupled with the other actions in this case such as threats and the Mr. Franklin actually manhandled the one victim if you will, dug in her pockets kind of shoved her around. Those are actions that cooperate and intent to cause serious bodily harm or death and it was very reasonable for the jury in this case to make that determination. Turning now to the 922 G count, the evidence was certainly sufficient to support the jury's verdict as to actual possession. Now the fence council makes a lot of arguments about what government council argued at closing arguments panels aware what the lawyers say in opening closing arguments on evidence. What's evidence is what the victims, the witnesses, the police officers, that's that's the evidence in the case. And in this case, what you heard was Mr. Williams who testified a trial testified that when the car crashed, both men bailed out. That Mr. Williams was asked specific questions about the sequence of events that happened thereafter

. He specifically stated testified a trial that he did not grab the firearm when he exited the vehicle. In fact, he was found, imagine the block in this case is almost a perfect rectangle, the car crashed in the northeast corner of the rectangle. Mr. Williams was found 20, 30 feet away also in the northeast corner, but on the east side of the block. The firearm was located in the northwest corner of the block on the west side. And then Mr. Franklin was located on the southwest corner of the block walking away from where the firearm was located. Does the record show how many feet the firearm or how many yards the firearm was from Mr. Franklin? Your honor, yes, there were there was a map and in hindsight, your honor, I realized I probably secluded the map that we that was introduced as evidence of trial as part of the supplemental joint appendix or the government supplemental joint appendix. But it was just 50 feet away. I don't want to add in the record. Your honor, I don't know if it's actual. It's kind of unclear to me reading this. I thought that was, you know, perhaps the government's week or weakest point. Yeah, it's the actual feet. I don't know is actually in the record, but your honor, what the testimony also showed is that when the police came to the scene, they came along that north side of the block

. So it would not have been reasonable or perhaps maybe would have, but for Williams to have ran over toward the northeast or northwest corner of the block, drop the gun and then circle back around to the northeast corner and hide on. I mean, he literally would have had to traverse almost half of the block and the police arrived. I mean, they were literally seconds behind. So in terms of the proximity, temporal proximity, it doesn't make sense. Wasn't Frank strictly on an actual possession theory. Excuse me, Your Honor. Was the handgun count tried only on an actual possession? It was your honor. It was charged on actual and there was also an 80 and a vetting. Would that be enough? It would be enough, Your Honor. But in this case, the government argues that he was in the car with the gun. He was by any other evidence shows. I would think shows joint or constructive possession. You're absolutely right, Your Honor. It could in this case were kind of fortunate because it was the jury instructed on joint constructive. They were they were instructed on active actual constructive possession. So they could have found any any one of those or they could have rejected those, but they did in your honor. They they found him guilty of that count because I believe it was reasonable for them to infer that as Mr. Franklin cornered that block that he tossed the gun down into the stairwell and then was caught just at the just a little further down the block. I think it was certainly reasonable for the jury to infer based on Mr. Williams testimony that he didn't grab the gun at that point. Mr. Williams has nothing to lose. He's sitting on the sand telling what happened. The jury could accept his testimony, reject his testimony and his testimony was he didn't grab the gun. Well, there's only two people in the car. So if he didn't grab the gun, it was certainly reasonable for the jury to infer that Mr. Franklin did grab the gun, which means. He would have been an actual possession of that firearm. Your honor as to the ineffective assistance claim as stated in the government brief, there simply is not enough evidence to draw a conclusion as to whether Mr. Franklin's council was ineffective or not as to the advisement of the maximum sentence that he would face had he proceeded to trial and he did proceed to trial. In this case did the majesty judge do that at the arrangement your honor? You know, I don't have the transcript. I don't your honor and I can't recall, but as you're aware that it is the procedure in Maryland that the master judge does read the maximum sentence

. They they found him guilty of that count because I believe it was reasonable for them to infer that as Mr. Franklin cornered that block that he tossed the gun down into the stairwell and then was caught just at the just a little further down the block. I think it was certainly reasonable for the jury to infer based on Mr. Williams testimony that he didn't grab the gun at that point. Mr. Williams has nothing to lose. He's sitting on the sand telling what happened. The jury could accept his testimony, reject his testimony and his testimony was he didn't grab the gun. Well, there's only two people in the car. So if he didn't grab the gun, it was certainly reasonable for the jury to infer that Mr. Franklin did grab the gun, which means. He would have been an actual possession of that firearm. Your honor as to the ineffective assistance claim as stated in the government brief, there simply is not enough evidence to draw a conclusion as to whether Mr. Franklin's council was ineffective or not as to the advisement of the maximum sentence that he would face had he proceeded to trial and he did proceed to trial. In this case did the majesty judge do that at the arrangement your honor? You know, I don't have the transcript. I don't your honor and I can't recall, but as you're aware that it is the procedure in Maryland that the master judge does read the maximum sentence. I think it every federal court. I didn't feel comfortable speaking to every federal court. Your honor, but I didn't know it at least in Maryland is your familiar that the majesty judges do read the maximum penalties to defendants and. And in any event we haven't heard from defense council here. Right. And Mr. Franklin had two sets of defense council. He had a member of the public defenders office initially and then a panel attorney who were both competent council. So it submits that to be fair, at least their side of the story should be heard for this court or for any court to decide whether or not their actions were ineffective or not. I don't think this court has enough information before it to make a conclusion as to whether or not Mr. Franklin's council were ineffective or not. And again, turning to the last argument that the defense looks at is raises in terms of the suppression motions. The big issue is the the identifications and I want to address that with the court because actually counsel didn't then address that in our. And that's what I'll be brief, but this was a very. Very unique situation. A very fortunate situation where there just happened to be Baltimore city police officers kind of right place right time where they were able to quickly act and quickly set up a perimeter

. I think it every federal court. I didn't feel comfortable speaking to every federal court. Your honor, but I didn't know it at least in Maryland is your familiar that the majesty judges do read the maximum penalties to defendants and. And in any event we haven't heard from defense council here. Right. And Mr. Franklin had two sets of defense council. He had a member of the public defenders office initially and then a panel attorney who were both competent council. So it submits that to be fair, at least their side of the story should be heard for this court or for any court to decide whether or not their actions were ineffective or not. I don't think this court has enough information before it to make a conclusion as to whether or not Mr. Franklin's council were ineffective or not. And again, turning to the last argument that the defense looks at is raises in terms of the suppression motions. The big issue is the the identifications and I want to address that with the court because actually counsel didn't then address that in our. And that's what I'll be brief, but this was a very. Very unique situation. A very fortunate situation where there just happened to be Baltimore city police officers kind of right place right time where they were able to quickly act and quickly set up a perimeter. And in this case it just made sense where they haven't a perimeter established and they find two people that match the descriptions to bring the victims to the scene to identify them. A lot after that occurred roughly a half hour or so in terms of the criminal investigation world that's that's pretty quick. In fact, that's real quick to have to say we found them. You know the officer who testified to act the officer Ali who who transported the three female victims to the scene was very careful in his testimony and how he presented it. He just said they've arrested two men and we're going to take you to the scene. He didn't say we've got them or you know these are the guys he just drove them to the scene made sure they were okay and then when they got to the scene took them and the girls. Without hesitation. Identified both Franklin and Williams and part had to do with and again this is in hindsight I should have attached the booking photo from Mr Franklin to show the very colorful loud shirt that he was wearing that night. Where was the car. When this happened the the red Dodge charger. Yes it was at the again it was stayed at the northeast corner of the block and it was their car. Could they see the car at the time they made the identity at the time to show up. You know you're on I do not know the answer to that question. I do not know the answer to that question but in this case as the I mean you have to agree I think that that would have been pretty suggestive. Right I mean if you stand the guys in front of their car. I mean that's an argument you're on or I don't disagree with that

. And in this case it just made sense where they haven't a perimeter established and they find two people that match the descriptions to bring the victims to the scene to identify them. A lot after that occurred roughly a half hour or so in terms of the criminal investigation world that's that's pretty quick. In fact, that's real quick to have to say we found them. You know the officer who testified to act the officer Ali who who transported the three female victims to the scene was very careful in his testimony and how he presented it. He just said they've arrested two men and we're going to take you to the scene. He didn't say we've got them or you know these are the guys he just drove them to the scene made sure they were okay and then when they got to the scene took them and the girls. Without hesitation. Identified both Franklin and Williams and part had to do with and again this is in hindsight I should have attached the booking photo from Mr Franklin to show the very colorful loud shirt that he was wearing that night. Where was the car. When this happened the the red Dodge charger. Yes it was at the again it was stayed at the northeast corner of the block and it was their car. Could they see the car at the time they made the identity at the time to show up. You know you're on I do not know the answer to that question. I do not know the answer to that question but in this case as the I mean you have to agree I think that that would have been pretty suggestive. Right I mean if you stand the guys in front of their car. I mean that's an argument you're on or I don't disagree with that. I'm not saying I'm not saying it's unnecessarily suggested but you know they would have recognized. That's the car. But as as this court has said in the Smith versus pointer case was decided a long time ago in 1973. But in this situation where you have a crime committed and the police have a description of the suspects and the show up is completed under circumstances where it's important to continue the search for the real culprit. But I thought didn't shenny's ward testify that the officer said that found them. She isn't at her testimony. 303 of the appendix. She she may have your honor. Okay well that's a little different than your representation of officer Ali's remarks. I don't recall specifically what what officer Ali said but I know he did not say we have. We have the suspect. I can turn to it quickly. I'm saying that's what the government's witness said. Is that. Let's see. We're on our let's rather

. I'm not saying I'm not saying it's unnecessarily suggested but you know they would have recognized. That's the car. But as as this court has said in the Smith versus pointer case was decided a long time ago in 1973. But in this situation where you have a crime committed and the police have a description of the suspects and the show up is completed under circumstances where it's important to continue the search for the real culprit. But I thought didn't shenny's ward testify that the officer said that found them. She isn't at her testimony. 303 of the appendix. She she may have your honor. Okay well that's a little different than your representation of officer Ali's remarks. I don't recall specifically what what officer Ali said but I know he did not say we have. We have the suspect. I can turn to it quickly. I'm saying that's what the government's witness said. Is that. Let's see. We're on our let's rather. So this word the guys were so we could kind of like point them out. When you're in the police car did the officer say anything to you. Yeah. What did he say? He said that they found them and they found our car. Your honor I hear what you're saying and it may have been a problem but the female victims when they called 911. The their description of the defendants were pretty accurate. I mean they gave detailed descriptions. Decide their height their weight what they were wearing. So I think. Hey don't apologize if I'm interrupting you but the point I'm making is I think you'd be in a lot of trouble if you didn't have those precise description. I do not disagree with your honor but I think that the the suggestiveness of the show up is negated by the fact that. A few minutes earlier no more than 20 minutes earlier the females provided detailed descriptions of the suspects to the police. In fact the testimony of one of the officers was that he knew he was looking for somebody wearing a striped shirt and and lo and behold as he's canvassing the area he sees Mr. Franklin who's dishevelled and sweating wearing a striped shirt. So I think that helps eliminate and negate some of the suggestive nature of the show up identification in this case. So if the panel and the two weren't together I'm sorry I'm reminded these were two separate procedures with with the two suspect they were they were because they were found indifferent locations on the block that's correct your honor

. So this word the guys were so we could kind of like point them out. When you're in the police car did the officer say anything to you. Yeah. What did he say? He said that they found them and they found our car. Your honor I hear what you're saying and it may have been a problem but the female victims when they called 911. The their description of the defendants were pretty accurate. I mean they gave detailed descriptions. Decide their height their weight what they were wearing. So I think. Hey don't apologize if I'm interrupting you but the point I'm making is I think you'd be in a lot of trouble if you didn't have those precise description. I do not disagree with your honor but I think that the the suggestiveness of the show up is negated by the fact that. A few minutes earlier no more than 20 minutes earlier the females provided detailed descriptions of the suspects to the police. In fact the testimony of one of the officers was that he knew he was looking for somebody wearing a striped shirt and and lo and behold as he's canvassing the area he sees Mr. Franklin who's dishevelled and sweating wearing a striped shirt. So I think that helps eliminate and negate some of the suggestive nature of the show up identification in this case. So if the panel and the two weren't together I'm sorry I'm reminded these were two separate procedures with with the two suspect they were they were because they were found indifferent locations on the block that's correct your honor. So if the panel doesn't have any further questions I submit that the jury's verdict supported by substantial evidence and that the district courts ruling the Nile of the motions to suppress should be affirmed and that when the ineffective assistance claim that that should be. I'm not going to be allowed to progress through the district court through a 22 55 motion thank you. Thank you Mr. Cipra. You have some additional time miss wicks. You're first to respond to I may have not articulated my point on my opening argument but I don't believe that the gun was pointed for the first incident I don't believe that the gun actually touched the complainant looking back again. It's actually page 41 of the direct which is in the supplemental joint appendix at 255 Mr. Galen Thomas testified that the the man had the gun pointing at my ribs and that he saw he also then goes on to talk about how when the gun was pointed at his ribs he was able to see it. So he actually describes the nose of the gun so I think from there's no testimony that it was touching him I think the testimony is that it was pointing at him and I just wanted to correct because I thought Judge Kenan had a question about that and I wanted to clarify our position that the first complaint it was not touched with the gun. What difference is that I think it does make a difference in terms of the under the case law if it's just the brandishing of the gun there has to be something in addition to that and so if there isn't a touching or some sort of other assault of behavior or something that makes out the intent of the defendant it's insufficient. Well if you look I'm sorry if you look at page 256 bottom the question is not once the gun was in your rib cage what happened next. Right which the leading question. Yeah, unobjected to unobjected to. And but I think it assumes a fact in evidence and he does the his answer does not say does not. Does not agree with that assertion necessarily well. So is your is your point really does your point does your point actually hand John whether the gun was touching the skin of the victim or was instead an inch and a half away from the rib cage what is what is your point

. So if the panel doesn't have any further questions I submit that the jury's verdict supported by substantial evidence and that the district courts ruling the Nile of the motions to suppress should be affirmed and that when the ineffective assistance claim that that should be. I'm not going to be allowed to progress through the district court through a 22 55 motion thank you. Thank you Mr. Cipra. You have some additional time miss wicks. You're first to respond to I may have not articulated my point on my opening argument but I don't believe that the gun was pointed for the first incident I don't believe that the gun actually touched the complainant looking back again. It's actually page 41 of the direct which is in the supplemental joint appendix at 255 Mr. Galen Thomas testified that the the man had the gun pointing at my ribs and that he saw he also then goes on to talk about how when the gun was pointed at his ribs he was able to see it. So he actually describes the nose of the gun so I think from there's no testimony that it was touching him I think the testimony is that it was pointing at him and I just wanted to correct because I thought Judge Kenan had a question about that and I wanted to clarify our position that the first complaint it was not touched with the gun. What difference is that I think it does make a difference in terms of the under the case law if it's just the brandishing of the gun there has to be something in addition to that and so if there isn't a touching or some sort of other assault of behavior or something that makes out the intent of the defendant it's insufficient. Well if you look I'm sorry if you look at page 256 bottom the question is not once the gun was in your rib cage what happened next. Right which the leading question. Yeah, unobjected to unobjected to. And but I think it assumes a fact in evidence and he does the his answer does not say does not. Does not agree with that assertion necessarily well. So is your is your point really does your point does your point actually hand John whether the gun was touching the skin of the victim or was instead an inch and a half away from the rib cage what is what is your point. He would be farther than an inch and a half if he is describing the nose of the gun the person seated behind him the feast burning and he can see the nose of the gun it's not just an inch and a half away from him. If it's pointed at his rib cage so I just wanted to take issue with that I agree it's a minor point you're on her but I think when you're looking at the facts clearly matter in the prior case law in terms of finding what occurred. And I think you're not suggesting the gun has to touch the victim in order that's suggesting that it has to I'm I'm suggesting that the case will says if it does that that is certainly indicative of the intent and if it's not that there has to be something in addition that an inch and a half difference between the muzzle. If you look at the case law I think the touching of the gun to the victim is is highly indicative under the case law and if there's not a touching that there has to be some sort of other assault sort of aggravating service dance and that's not and what about reading reading the victims name and address from his identity. I don't think that that says we're going to kill you I'm not you don't think it says that I'm not saying that what is it said what do you think was being communicated at that moment to the police I mean he tells me don't call the police don't know where you live we know where you live it's not we're killing you to get your and what are we going to do with this knowledge of where you live I think that it's a threat I mean it's it's a lot of the Supreme Court said is needed right. It's not a threat of bodily injury if you don't give up your car there's there's not even a suggestion that you're he I think if you look at what is said there's not even a session suggestion of that you're not going to give us the car it's basically talking about after you give us your car. Basically, A don't call the police because we know where you live and the and the claim credible or not that we're going to bring the car back but the point is it's not going towards if you don't give us the car we're going to do something to you I don't think it suggests that. In your order if I for the issue that the government council talks about in terms of the suppression issue I think Judge Keenan correctly points out what the complainant said I think it's it's the officers have one version of what was said to the complainant but I think all of the complainants agree that they were told we got your car and we got the guys and that is what's told to them before they get there. If one word of assume it was suggestive and maybe even assume if you wanted to that it's unnecessarily suggested is there any. Can you point anything to question the reliability of the identification under the circumstance well because the 911 call is the girls talking over each other so you in terms of independent identification by each complainant I think there is a issue here there's sort of all. The 911 call is is them talking. I'm not following your answer my question is what can you point to that reasonably calls into question under the circumstances of the crash the apprehension etc because they all hear each other talking they they over here the 911 call. So where someone is describing what they saw their versions of what occurred are very different from each other and so if the fact that you have and that's not the police fault in terms of them listening to what is said in the 911 call but then you have it that they're all basically then told we have your car we have the guys they're brought there which was true right they had their car the police had their car before they're shown the guy. And why doesn't that significantly bolster the reliability of the identification that's what I'm asking you because how does that help you. Suppose the guys have been sitting bolsters the reliability it doesn't know I think what if they've been sitting in the car what if they've been sitting in the car when the when the victims were pulled pulled up next thing that me well I mean we don't have that I guess well we have the next best thing right we have two people apprehended. A few a few yards away from the crash of the car right but but in terms of the amount of time that has passed and the amount of time that has passed since the car has crashed you don't know where Mr Franklin has come from you don't it's it's not it's a very large area and there's no evidence that it was

. He would be farther than an inch and a half if he is describing the nose of the gun the person seated behind him the feast burning and he can see the nose of the gun it's not just an inch and a half away from him. If it's pointed at his rib cage so I just wanted to take issue with that I agree it's a minor point you're on her but I think when you're looking at the facts clearly matter in the prior case law in terms of finding what occurred. And I think you're not suggesting the gun has to touch the victim in order that's suggesting that it has to I'm I'm suggesting that the case will says if it does that that is certainly indicative of the intent and if it's not that there has to be something in addition that an inch and a half difference between the muzzle. If you look at the case law I think the touching of the gun to the victim is is highly indicative under the case law and if there's not a touching that there has to be some sort of other assault sort of aggravating service dance and that's not and what about reading reading the victims name and address from his identity. I don't think that that says we're going to kill you I'm not you don't think it says that I'm not saying that what is it said what do you think was being communicated at that moment to the police I mean he tells me don't call the police don't know where you live we know where you live it's not we're killing you to get your and what are we going to do with this knowledge of where you live I think that it's a threat I mean it's it's a lot of the Supreme Court said is needed right. It's not a threat of bodily injury if you don't give up your car there's there's not even a suggestion that you're he I think if you look at what is said there's not even a session suggestion of that you're not going to give us the car it's basically talking about after you give us your car. Basically, A don't call the police because we know where you live and the and the claim credible or not that we're going to bring the car back but the point is it's not going towards if you don't give us the car we're going to do something to you I don't think it suggests that. In your order if I for the issue that the government council talks about in terms of the suppression issue I think Judge Keenan correctly points out what the complainant said I think it's it's the officers have one version of what was said to the complainant but I think all of the complainants agree that they were told we got your car and we got the guys and that is what's told to them before they get there. If one word of assume it was suggestive and maybe even assume if you wanted to that it's unnecessarily suggested is there any. Can you point anything to question the reliability of the identification under the circumstance well because the 911 call is the girls talking over each other so you in terms of independent identification by each complainant I think there is a issue here there's sort of all. The 911 call is is them talking. I'm not following your answer my question is what can you point to that reasonably calls into question under the circumstances of the crash the apprehension etc because they all hear each other talking they they over here the 911 call. So where someone is describing what they saw their versions of what occurred are very different from each other and so if the fact that you have and that's not the police fault in terms of them listening to what is said in the 911 call but then you have it that they're all basically then told we have your car we have the guys they're brought there which was true right they had their car the police had their car before they're shown the guy. And why doesn't that significantly bolster the reliability of the identification that's what I'm asking you because how does that help you. Suppose the guys have been sitting bolsters the reliability it doesn't know I think what if they've been sitting in the car what if they've been sitting in the car when the when the victims were pulled pulled up next thing that me well I mean we don't have that I guess well we have the next best thing right we have two people apprehended. A few a few yards away from the crash of the car right but but in terms of the amount of time that has passed and the amount of time that has passed since the car has crashed you don't know where Mr Franklin has come from you don't it's it's not it's a very large area and there's no evidence that it was. Contain really and what do you say about the shirt. I mean you weren't at trial I understand that have you seen the shirt have you seen the shirt I have not seen the shirt you haven't seen the shirt. The center of photograph of the shirt please Mr. it's an orange type shirt I'm not I'm not saying that that that's not a white t shirt I it's not the most generic of shirts but it's. In you know I don't know how many people in both more wear white striped shirts but it's and what about the cooperators testimony is that bear on the on the reliability of the identification. Well that's it doesn't bear on the reliability of the identification because that's that's that wasn't I mean that's. But accomplice saying yeah he was there he was the other guy. That's not that doesn't go to the reliability of the identification. Not in terms of what before the court pre trial no that I mean that wasn't before the court understand that we're talking about the reliability of the in court identification. Well I know I think we're talking about the reliability of the first we're talking about the reliability of the out of court identification but does that matter given the evidence of the in court identification. Well it does matter because it matters because if the court finds that the out of court one is unreliable then that the court then can consider whether or not and in court and identification. Could be reliable keep the out of the out what can you point to that renders the in court identification unreliable. Well given the totality of the circumstance. I mean you didn't want to you didn't want to bring this up we understand it you didn't bring it up in your opening argument so. Well because I think the issue it's the identifications are one issue but the other issue is what sees from Mr Franklin and he's clearly detained and apparently been searched twice because two different officers claim they find the idea on him but and that occurs before the identification procedure. Well you don't question probable cause do you

. Contain really and what do you say about the shirt. I mean you weren't at trial I understand that have you seen the shirt have you seen the shirt I have not seen the shirt you haven't seen the shirt. The center of photograph of the shirt please Mr. it's an orange type shirt I'm not I'm not saying that that that's not a white t shirt I it's not the most generic of shirts but it's. In you know I don't know how many people in both more wear white striped shirts but it's and what about the cooperators testimony is that bear on the on the reliability of the identification. Well that's it doesn't bear on the reliability of the identification because that's that's that wasn't I mean that's. But accomplice saying yeah he was there he was the other guy. That's not that doesn't go to the reliability of the identification. Not in terms of what before the court pre trial no that I mean that wasn't before the court understand that we're talking about the reliability of the in court identification. Well I know I think we're talking about the reliability of the first we're talking about the reliability of the out of court identification but does that matter given the evidence of the in court identification. Well it does matter because it matters because if the court finds that the out of court one is unreliable then that the court then can consider whether or not and in court and identification. Could be reliable keep the out of the out what can you point to that renders the in court identification unreliable. Well given the totality of the circumstance. I mean you didn't want to you didn't want to bring this up we understand it you didn't bring it up in your opening argument so. Well because I think the issue it's the identifications are one issue but the other issue is what sees from Mr Franklin and he's clearly detained and apparently been searched twice because two different officers claim they find the idea on him but and that occurs before the identification procedure. Well you don't question probable cause do you. Yes you do you didn't do that in your brief. Yeah we we we below even in the trial court conceded that he could be stopped but it's the probable cause to arrest. I don't think you brief probable cause for arrest in your brief to this court am I right. I think I did you think you did okay. I thought you only challenged the identification. No what not the arrest. I'm telling you the identifications because that goes into the calculus for the probable cause to arrest. Well the arrest preceded the identification they'd already been arrested. Right but I'm saying he had already been arrested but in terms of the analysis pretrial the court can then consider. Because there's other evidence taken as a result of his arrest after the identification and that's his statements so I think there's sort of two points that the court can point to in terms of his arrest but I agree that he is under arrest before the identification. The only other issue I would comment on your honor is in terms of the ineffective claim I agree with government council that it can be brought up in a 20 to 55 but on this record. And that's out that's our preferred practice and I understand that but on this record where Mr Franklin did bring it up before sentencing and and I think the court didn't deal with this issue. I don't think I agree with the government that the court can't find that his lawyer or lawyers were ineffective I think the court can say that there's sufficient evidence here to remand it for hearing before the district. That's what 2255 is before. Well I mean I think one way that it's going to get there but I think given that he raised it. Prior to conviction that the appropriate and the court basically just didn't deal with it I think the appropriate thing for this court to say is the court should deal with it and if nothing else remand it for hearing on that

. I'm sorry prior to sentencing. So there's no under oath testimony. I agree I he I mean Mr Franklin filed something pro say that was accepted by the clerk. I'm saying given the record where he's saying I didn't know and the information in the record is actually in accurate in terms of what he really was facing I think that it is a colorable claim that the court should remand for hearing. Okay thank you very much miss Wicks we appreciate the you are court appointed in this case and we just want to say how grateful we are for your availability and your willingness to accept the appointment by the court to provide this important service. We'll come down in Greek Council and go immediately to our fourth and final pay