United States v. Franklin, No. 20-30136 (9th Cir. 2021)
Annotate this Case
Defendant Franklin pleaded guilty to 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 robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. 1951(a).
The Ninth Circuit concluded that binding precedent forecloses Franklin's contention that Hobbs Act robbery is not categorically a crime of violence under 18 U.S.C. 924(c)(3)(A). The panel concluded that there are two distinct questions that this court answers in examining a hearsay statement at sentencing: (1) whether the statement is "procedurally reliable" and (2) whether the statement is "substantively reliable." If the court answers either question in the affirmative, then the statement may be considered at sentencing. The panel explained that this is a disjunctive test: If the court answered either question in the affirmative, then the statement may be considered at sentencing. In this case, the government provided enough specifics so that Franklin was not put to the burden of proving that the enhancement did not apply, and that there were adequate procedural opportunities for Franklin to challenge the extrinsic, nonhearsay evidence corroborating Coconspirator Hiler's hearsay statements. The panel concluded that there was no error in the district court's conclusion that the evidence sufficiently corroborated Hiler's statements and that the admission of those statements at sentencing did not deprive Franklin of due process. Furthermore, the district court did not clearly err in implicitly finding the two coconspirators' statements to corroborate each other enough to be substantively reliable, and that their admission at sentencing thus did not violate due process.
Court Description: Criminal. The panel affirmed a criminal judgment in a case in which Kielan Frankin pleaded guilty to 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 robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. § 1951(a). The panel wrote that, as Franklin conceded, binding precedent forecloses his contention that Hobbs Act robbery is not categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A). Franklin contended that the district court violated his due-process rights at sentencing by relying on his codefendants’ unsworn hearsay statements, which accused him of trying to influence their testimony, in imposing an obstruction-of-justice enhancement. As this court had not clearly enunciated the standard for reviewing a district court’s determination of whether coconspirator hearsay is unreliable, the panel took the opportunity to clarify it. After examining the development of the minimal-indicia-of- reliability doctrine over the last half-century, the panel concluded that there are two distinct questions that this court answers in examining a hearsay statement at sentencing: (1) whether the statement is “procedurally reliable” and (2) whether the statement is “substantively reliable.” If the court answers either question in the affirmative, then the UNITED STATES V. FRANKLIN 3 statement may be considered at sentencing. The panel wrote that a determination of procedural reliability—that the hearsay in question does not put the burden on the defendant to prove a negative and that the defendant has adequate opportunity to confront corroborative evidence of the hearsay—is an essentially legal question reviewed de novo. A determination of substantive reliability—whether hearsay statements admitted at sentencing are from reliable sources or are consistent enough with one another to indicate their probable truth—is an essentially factual question reviewed for clear error. The panel wrote that this is a disjunctive test: so long as each hearsay statement offered by the government at sentencing is either procedurally reliable or substantively reliable, due process is not offended. The panel applied that framework to this case. Reviewing procedural reliability de novo, the panel concluded that the government provided enough specifics so that Franklin was not put to the burden of proving that the enhancement did not apply, and that there were adequate procedural opportunities for Franklin to challenge the extrinsic, nonhearsay evidence corroborating codefendant Gerald Hiler’s hearsay statements. Perceiving no error in the district court’s conclusion that this evidence sufficiently corroborated Hiler’s statements, the panel concluded that the admission of those statements at sentencing did not deprive Franklin of due process. As to substantive reliability, the panel considered the government’s argument that Hiler’s and codefendant Morgan Pitsch’s hearsay statements corroborate each other enough to be admissible at sentencing. The panel concluded that the district court did not clearly err in implicitly finding the two coconspirators’ statements to corroborate each other enough to be substantively reliable, and that their admission at sentencing thus did not violate due process. 4 UNITED STATES V. FRANKLIN Judge Berzon concurred in the judgment, agreeing that the district court did not err in relying on hearsay statements from Hiler and Pitsch as the basis for an obstruction-of- justice enhancement. She disagreed that this court has developed a disjunctive test under which a hearsay statement may form the basis of a defendant’s sentence if it is either “procedurally reliable” or “substantively reliable.” She reads this court’s cases as requiring, at a minimum, substantive reliability.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.