                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30164

              Plaintiff - Appellee,              D.C. No. 3:11-cr-05335-BHS-1

 v.
                                                 MEMORANDUM*
ERIC QUINN FRANKLIN,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                        Argued and Submitted May 6, 2016
                               Seattle, Washington

Before: GRABER, BERZON, and MURGUIA, Circuit Judges.

      Eric Quinn Franklin was convicted in federal district court of being a felon

in possession of a firearm and several drug-related offenses. The district court

determined Franklin was subject to a 15-year minimum sentence under the Armed



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Career Criminal Act (“ACCA”) and a consecutive 5-year minimum for possessing

a firearm in furtherance of drug trafficking, and sentenced him to 20 years of

imprisonment. Franklin appeals his convictions and sentence. We affirm the

convictions but vacate the sentence and remand the case for a new sentencing

proceeding.

      1. Assuming that the district court denied the suppression motion without

holding an evidentiary hearing, it did not abuse its discretion by doing so. A

district court is required “to conduct an evidentiary hearing when the moving

papers filed in connection with a pre-trial suppression motion show that there are

contested issues of fact relating to the lawfulness of a search.” United States v.

Mejia, 69 F.3d 309, 318 (9th Cir. 1995). Although Franklin contends it was

contested whether the certified copies of the complaint, warrant, and return of the

warrant introduced by the government were sufficient to prove a warrant had been

issued prior to the search, Franklin offered no evidence to support the unsworn

allegations in the memorandum accompanying his suppression motion. Standing

alone, Franklin’s unsworn, unsubstantiated assertions in the suppression

memorandum did not constitute “an offer of proof ‘sufficiently definite, specific,

detailed, and nonconjectural to enable the court to conclude that contested issues of

fact going to the validity of the search [were] in question.’” United States v.


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DiCesare, 765 F.2d 890, 896 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985)

(quoting United States v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974)). Absent such

evidence, the district court was not required to hold an evidentiary hearing.

      Nor did the court err in ruling that probable cause supported the search

warrant. The complaint in support of the warrant application was based on two

controlled buys of crack cocaine executed less than three months before the search,

and one attempted controlled buy executed eight days before the search, during

which Franklin told a confidential informant he was selling drugs at that time. This

court “evalute[s] staleness ‘in light of the particular facts of the case and the nature

of the criminal activity and property sought.’” United States v. Pitts, 6 F.3d 1366,

1369 (9th Cir. 1993) (quoting United States v. Greany, 929 F.2d 523, 525 (9th Cir.

1991)). Taking the three incidents together, the information in the complaint was

not stale. See id. at 1369-70 (holding that the information in an affidavit was not

stale where it “support[ed] the inference that Pitts was more than a one-time drug

seller” and recounted a sale 121 days before the search); United States v. Angulo-

Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (“With respect to drug trafficking,

probable cause may continue for several weeks, if not months, of the last reported

instance of suspect activity.”).




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      The complaint was also supported by personal knowledge. It listed the

officers and confidential informants involved in the investigation and their various

roles in the three controlled buys. The motion to suppress therefore was properly

denied.

      2. The court appointed four different attorneys to represent Franklin; each

attorney moved to withdraw as counsel. The court granted the first three attorneys’

motions. It did not err by declining to grant yet another motion to substitute

counsel and by giving Franklin the choice between the extant lawyer and no

lawyer. In reviewing a district court’s denial of a motion to substitute counsel for

abuse of discretion, we consider “whether the asserted conflict was so great as to

result in a complete breakdown in communication and a consequent inability to

present a defense.” United States v. Lindsey, 634 F.3d 541, 554 (9th Cir. 2011)

(quoting United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2005)). The conflict

between Franklin and his fourth appointed attorney was not irreconcilable. The two

clashed primarily over litigation strategy; strategic or tactical disagreements do not

constitute a complete breakdown in communication. Stenson v. Lambert, 504 F.3d

873, 886 (9th Cir. 2007). Furthermore, that Franklin had already fired three

appointed attorneys over strategic disagreements suggested that Franklin was likely

to precipitate a similar disagreement with a new appointed lawyer. When a


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defendant acts unreasonably, the court may deny a motion for new counsel without

abusing its discretion. See United States v. Mendez-Sanchez, 563 F.3d 935, 944

(9th Cir. 2009); United States v. Roston, 986 F.2d 1287, 1292 (9th Cir. 1993).

      3. But the district court did err in allowing Franklin to represent himself at

sentencing without having first given adequate Faretta cautions. See Faretta v.

California, 422 U.S. 806 (1975). “In order to deem a defendant’s Faretta waiver

knowing and intelligent, the district court must insure that he understands 1) the

nature of the charges against him, 2) the possible penalties, and 3) the ‘dangers and

disadvantages of self-representation.’” United States v. Erskine, 355 F.3d 1161,

1167 (9th Cir. 2004) (quoting United States v. Balough, 820 F.2d 1485, 1487 (9th

Cir. 1987)). The government admits that “the [district] court did not . . . explain the

charges or penalties Franklin faced” during the sentencing hearing. Although the

potential penalties were described to Franklin at his initial appearance in July 2011,

two-and-a-half years prior to his waiver, and Franklin indicated at his sentencing

hearing that he may have read the presentence report, Franklin stated just minutes

before he waived his right to counsel that he was “facing 20 years.” In fact, the

maximum potential sentence he faced was life imprisonment plus five years. His

statement thus indicates that he did not understand the potential penalties.




                                           5
      Moreover, the district court gave no warning specifically about the dangers

of self-representation at sentencing. To satisfy the “dangers and disadvantages”

warning requirement, the court must do more than “suggest[] that there are

consequences in the abstract.” United States v. Hayes, 231 F.3d 1132, 1137 (9th

Cir. 2000). The court must offer “some instruction or description, however

minimal, of the specific dangers and disadvantages of proceeding pro se.” Id. at

1137-38. Here, the district court simply warned Franklin that self-representation

was unadvisable because he lacked legal knowledge and understanding relative to

his appointed attorneys. That warning was insufficient.

      We therefore affirm the convictions, but vacate Franklin’s sentence and

remand the case for a new sentencing proceeding. See Erskine, 355 F.3d at 1170

n.12 (“Faretta error is not subject to the harmless error rule.”); United States v.

Yamashiro, 788 F.3d 1231, 1236 & n.1 (9th Cir. 2015).

      4. We do not reach the ACCA or other sentencing questions because they

may not arise on remand.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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