USA v. Jonathan Franklin

Filing

OPINION filed [1348600] (Pages: 4) for the Court by Judge Kavanaugh [10-3001]

USCA Case #10-3001

Document #1348600

Filed: 12/20/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2011

Decided December 20, 2011

No. 10-3001
UNITED STATES OF AMERICA,
APPELLEE
v.
JONATHAN L. FRANKLIN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00128-1)

Michael E. Lawlor, appointed by the court, argued the
cause for appellant. With him on the briefs was Sicilia C.
Englert, appointed by the court.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, Roy W. McLeese III, Elizabeth
Trosman, Sherri L. Berthrong, and John Dominguez,
Assistant U.S. Attorneys.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.

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Opinion for
KAVANAUGH.

the

Court

filed

by

Circuit

Judge

KAVANAUGH, Circuit Judge: After a jury trial, Jonathan
Franklin was convicted of serious drug offenses and
sentenced to life in prison. He contends that he received
ineffective assistance of counsel when he declined the
prosecution’s plea deal proposal and instead went to trial.
The District Court rejected his ineffective assistance of
counsel claim. We affirm the judgment of the District Court.
***
In October 2005, Jonathan Franklin was indicted by a
federal grand jury for his role in operating a massive D.C.
drug ring. Within the multi-count indictment, three counts –
the RICO conspiracy, Continuing Criminal Enterprise (or
CCE), and murder in aid of racketeering counts – carried
mandatory life sentences. See 18 U.S.C. § 1959(a)(1); 18
U.S.C. § 1963(a); 21 U.S.C. § 848(b).
At trial, Franklin and his counsel embarked on a
concession strategy: They conceded guilt to less serious
charges in an effort to build credibility with the jury and avoid
convictions on the counts that carried lengthier sentences,
including the counts with mandatory life sentences. The
strategy almost worked: A jury found Franklin not guilty on
several counts, including murder. But the jury found Franklin
guilty on many other counts, including the RICO and CCE
counts. Therefore, as required by law, the District Court
sentenced Franklin to life imprisonment.
On direct appeal, we rejected most of Franklin’s
challenges to his conviction and sentence. See United States
v. Wilson, 605 F.3d 985 (D.C. Cir. 2010). Consistent with our
common practice, we remanded his claim of ineffective

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assistance of counsel for analysis in the first instance by the
District Court.
On remand to the District Court, Franklin argued that his
counsel had been deficient in proposing the concession
strategy without conveying the risk that Franklin could still
receive a life sentence even if acquitted on the RICO, CCE,
and murder counts. The situation facing Franklin was this: If
acquitted on the RICO, CCE, and murder counts, he would
avoid a mandatory life sentence. But depending on which (if
any) other counts he was convicted of, the District Court still
might have discretion under the relevant statutes to impose a
life sentence. Indeed, the advisory sentencing range under the
Sentencing Guidelines could itself rise to life imprisonment
even with acquittals on the RICO, CCE, and murder counts.
Franklin said he did not realize all of this when he agreed
to go with the concession strategy. In particular, he claimed
that he was not aware that he still might receive a life
sentence even if acquitted on the RICO, CCE, and murder
counts.
(Franklin’s trial counsel contested Franklin’s
assertion, but that dispute is not relevant for present
purposes.) Franklin contended that, had he known the full
situation, he would have accepted a plea deal to avoid any
possibility of life imprisonment – even though a deal would
have required him to cooperate with the Government and
testify against his brother and cousin, who were codefendants.
But the District Court did not believe Franklin’s
testimony: “[T]he Court does not credit Mr. Franklin’s
assertion that he would have accepted the Government’s
cooperation plea offer and testified against his brother and
cousin had he known that he could have received a life
sentence under the concession strategy.” United States v.

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Franklin, No. 04-128-1, slip op. at 18 (D.D.C. Dec. 2, 2009)
(emphasis omitted).
We find no basis in the record to disturb the District
Court’s credibility finding. As a result, Franklin cannot show
a reasonable probability that he would have pled guilty – and
thus received a sentence of less than life imprisonment – if he
had been fully informed of the sentencing permutations. He
therefore cannot show the required “reasonable probability”
that “the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
In light of our disposition and the arguments raised by the
parties, we need not consider the more fundamental legal
question whether a defendant such as Franklin – who receives
a fair trial but claims he would have pled guilty had he
received effective assistance of counsel – can state a claim for
ineffective assistance of counsel. Cf. Lafler v. Cooper, No.
10-209 (U.S. argued Oct. 31, 2011).
***
We affirm the judgment of the District Court.
So ordered.

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