                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-4319


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

JOHN FRANKLIN,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:11-cr-00095-MJG-1)


Argued:   September 20, 2013                 Decided:   November 6, 2013


Before DAVIS, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote the
opinion, in which Judge Davis and Judge Floyd joined.     Judge
Davis wrote a separate concurring opinion.


ARGUED: Jenifer Wicks, LAW OFFICE OF JENIFER WICKS, Washington,
D.C., for Appellant.    John Walter Sippel, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.   ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:

       John Franklin was convicted by a jury of numerous charges

arising from his participation in two carjacking incidents.                         In

this appeal, Franklin argues that: (1) the district court erred

in    denying      his   motion   to     suppress    certain      evidence    obtained

around the time of his arrest; (2) the evidence was insufficient

to support his convictions; and (3) his trial counsel provided

ineffective assistance.            Upon our review, we affirm the district

court’s judgment.



                                           I.

       On    August      14,    2010,     Franklin    met      co-defendants      Troy

Williams and Dwayne Frazier at their residence in Baltimore,

Maryland.          Franklin suggested that the three men go “downtown”

to rob people.           Williams and Frazier agreed and, when the group

left the residence, Frazier was in possession of a handgun.

       While       walking      toward     downtown       Baltimore,       the    group

encountered Sean Gallion-Thomas, who was driving a green Buick

LeSabre (the LeSabre).              Franklin informed Gallion-Thomas that

the group needed a ride and offered to pay Gallion-Thomas, who

was    not     a     licensed     cab    driver,     to    take     them     to   their

destination.

       Gallion-Thomas drove the group for about 30 minutes, until

he was instructed by Franklin to stop the car.                     Frazier, who was

                                            2
seated   behind     the     driver’s      seat,       pointed    a   gun    at    Gallion-

Thomas, and Franklin asked whether Gallion-Thomas had any money

or a cell phone.          Williams later removed money and a phone from

Gallion-Thomas’ pockets.

       Meanwhile,     Franklin          took       Gallion-Thomas’      identification

card from his pocket, and read Gallion-Thomas’ name and address

aloud,     stating,     “We     know      where       you     live   at.”        Franklin

instructed Gallion-Thomas not to call the police, and told him

that the group would return the car to Gallion-Thomas’ home if

the    incident     was     not    reported.            Gallion-Thomas           perceived

Franklin’s statements as a threat.                    The group “kicked [Gallion-

Thomas] out” of the car and drove away.                         Thereafter, Gallion-

Thomas   reported     the     crime      to    the    Baltimore      City   police    (the

police).

       While   riding      in     the     LeSabre,      Franklin,       Williams,      and

Frazier formulated a plan to go to the El Dorado strip club to

commit another robbery.            A short while later, the group pulled

into a parking lot adjacent to the club and encountered a red

Dodge Charger (the Charger), which had three female occupants.

Franklin and Williams got out of the LeSabre and walked toward

the Charger.

       Williams approached the women in the Charger while holding

a gun, touched the gun to the driver’s chest, and stated “give

me    everything.”        Franklin       “groped”       the     front-seat       passenger

                                               3
searching for items in her pockets.                    Williams and Franklin took

two   cell    phones   and    a     purse       from    the    women,     and    Williams

demanded the keys to the Charger upon being prompted to do so by

Franklin.

      Because the driver of the Charger thought that Williams

would shoot her if she did not comply, she gave him the keys to

her vehicle.       After the women got out of the car, Franklin and

Williams left the scene in the vehicle, following the LeSabre

driven by Frazier.

      The women contacted the police to report the incident, and

provided a detailed description of the two men who took the

vehicle, including their height, build, and attire.                             The women

informed     the   police    that    they       “really       got   a   good    look”   at

Franklin, whom they reported as being a “heavy-set” man wearing

a colorful striped shirt.

      Police officers soon observed a red Dodge Charger being

“trailed” by a green Buick LeSabre.                    The officers followed the

vehicles,    and   were     able    to   stop     the    LeSabre        and   arrest    its

driver, Frazier.       Gallion-Thomas later identified Frazier as one

of the perpetrators of the first robbery and carjacking.

      The driver of the Charger initially eluded police and began

driving at a high rate of speed.                   The police temporarily lost

sight of the vehicle, but eventually found it after the vehicle

struck a parked car.         However, when a police officer approached

                                            4
the Charger, he observed that its occupants had fled.                    After

additional officers arrived, Williams was found hiding under a

parked vehicle which was about “two or three vehicles” away from

the Charger.

     Shortly thereafter, a few blocks away from the Charger, a

police officer saw a man later identified as Franklin, who was

heavy-set, wearing a striped shirt and sweating profusely.                    The

officer   stopped    Franklin      because    he   “matched   the   description

that was given over the [police] radio.”                 While conducting a

“pat down” search of Franklin, the officer recovered Gallion-

Thomas’ identification card and a cell phone belonging to one of

the female victims.

     In the same block in which Franklin was apprehended, the

police found a loaded revolver, which later was identified by

two of the women victims as being the firearm used during the

second incident.         The police also found near that location a

wallet and an additional cell phone owned by another of the

female    victims.       Less   than    10   minutes   later,   and   about    45

minutes after the second carjacking occurred, the female victims

were brought by police to the street location where Franklin was

being detained.      All three women identified Franklin as one of

the perpetrators.

     A    grand   jury    issued    a   superseding     indictment    charging

Franklin with: conspiracy to commit carjacking, in violation of

                                         5
18 U.S.C. § 371 (Count 1); carjacking, in violation of 18 U.S.C.

§ 2119 (Counts 2 and 4); possession of a firearm in furtherance

of a crime of violence, in violation of 18 U.S.C. § 924(c)

(Counts 3 and 5); and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g) (Count 6).                                    Before

trial, the district court denied Franklin’s motion to exclude

evidence      relating      to   the    identifications           made     by    the    female

victims, and also denied Franklin’s motion to suppress the items

obtained      from    his    person     during      the     search    incident          to    his

arrest.

       The    jury    convicted        Franklin       of    all      charges,         and     the

district      court      imposed       a    total     sentence        of        414    months’

imprisonment.        Franklin timely appealed.



                                             II.

       Franklin      first    argues       that    the     district       court       erred    in

refusing      to   suppress      the       evidence      seized    during        the    search

incident      to   his   arrest.           According       to   Franklin,        the    police

lacked probable cause to arrest him, thereby invalidating the

seizure of the cell phone belonging to one of the female victims

and Gallion-Thomas’ identification card.                        Franklin also contends

that    the    impermissibly           suggestive        nature      of    the        “show-up”

identifications rendered them inadmissible.                           We disagree with

Franklin’s arguments.

                                              6
      In considering a district court’s denial of a motion to

suppress     evidence,         we    review         de    novo      the      court’s      legal

conclusions, and review for clear error the court’s supporting

factual findings.             United States v. Kelly, 592 F.3d 586, 589

(4th Cir. 2010).            In undertaking this analysis, we review the

evidence    in    the   light       most   favorable           to   the   government,          the

prevailing party at trial.             Id.

      We conclude that the police had probable cause to arrest

Franklin    even      before     the   female        victims        identified         him.     A

police officer may make a warrantless arrest in a public place

if the officer has probable cause to believe that the individual

is or will soon be involved in criminal activity.                               United States

v.    Dickey-Bey,       393     F.3d   449,         453    (4th      Cir.       2004).         The

requirement of probable cause may be satisfied by “facts and

circumstances within the officer’s knowledge that are sufficient

to warrant a prudent person, or one of reasonable caution, in

believing,       in   the     circumstances          shown,     that      the    suspect       has

committed, is committing, or is about to commit an offense.”

See   id.   (quoting        Michigan       v.       DeFillippo,        443      U.S.     31,   37

(1979)).     We consider under the “totality of the circumstances”

the question whether an arrest was supported by probable cause,

affording “defer[ence] to the expertise and experience of law

enforcement officers at the scene.”                      Id.



                                                7
     Here, the evidence showed that in responding to reports

that a green Buick LeSabre and a red Dodge Charger had been

stolen at gunpoint, police observed the two vehicles, and were

able to stop the LeSabre and apprehend its driver.                       Although the

driver   of   the    Charger    initially       eluded      police,     that    vehicle

later collided with a parked car and one occupant of the Charger

was found hiding under another parked car near the collision

scene.

     After    searching       the   area       for    the     Charger’s    additional

occupant,     and    having     received         reports        that    one    of   the

perpetrators was heavy-set and was wearing a striped shirt, the

police observed nearby a man matching this physical description

wearing a striped shirt, who was sweating profusely and appeared

disheveled.     According to the police officer who apprehended

Franklin, he “matched the description that was given over the

[police] radio.”       The officers also found a handgun discarded on

the same street block where Franklin was detained.                             Based on

this evidence, we hold that the district court did not err in

concluding    that     the     police   had          probable    cause    to     arrest

Franklin, and that the items recovered in the search incident to

his arrest were admissible.

     Franklin       argues,    nevertheless,           that     the    identification

testimony from the female victims should have been suppressed

because the identifications were impermissibly suggestive.                           We

                                           8
disagree,          based       on        our     ultimate            conclusion         that       this

identification evidence was reliable.

       The    exclusion           of     identification           evidence        is    a    “drastic

sanction . . . that is limited to identification testimony which

is manifestly suspect.”                   Harker v. Maryland, 800 F.2d 437, 443

(4th    Cir.       1986).          In    considering         whether         an    identification

should be suppressed, we undertake a two-step analysis.                                        First,

we     determine          whether        the     defendant            has     shown         that     the

identification            procedure        was    impermissibly              suggestive.             See

Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994) (citing

Manson       v.    Brathwaite,           432    U.S.       98,    114       (1977)).          If     the

defendant has met this burden, we next must decide “whether the

identification was nevertheless reliable under the totality of

the circumstances.”               See id.

       In    the        present     case,      there   was       a    significant           degree    of

suggestiveness involved in the show-up identification process.

The police told the female victims that the suspects had been

apprehended, and Franklin was in handcuffs sitting on a curb

near some police cars when the victims arrived and identified

him.         Accordingly,           we    will    assume,         without         deciding,        that

Franklin          has    met      his    burden       of    showing         that       the    show-up

identification             process         in     this           case       was     impermissibly

suggestive.             See Holdren, 16 F.3d at 61 (“[W]ithout determining

whether [the defendant] has met the threshold requirement of

                                                  9
suggestiveness, we may proceed directly to the reliability of

the identification.”).

       We nevertheless conclude that the identification evidence

was admissible, because it was “reliable under the totality of

the circumstances.”           See id. at 61.          In evaluating reliability

under the totality of the circumstances, we primarily consider

five factors: (1) the witness’s opportunity to view the accused

at the time of the crime; (2) the witness’s degree of attention;

(3)   the   accuracy     of    the    witness’s    prior      description       of   the

accused;    (4)   the    level       of   certainty    by    the   witness      at   the

confrontation; and (5) the length of time between the crime and

confrontation.      Neil v. Biggers, 409 U.S. 188, 199-200 (1972);

Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997).

       Here, upon application of the factors identified in Biggers

we conclude that Franklin’s identification by the female victims

was reliable.       The female victims were in very close proximity

to    Franklin    during      the    carjacking,      and    one   of     the   victims

testified that the group “really got a good look” at Franklin.

Additionally,      the     identifications        were      made   soon    after     the

crimes occurred, the victims were very confident that Franklin

was one of their assailants, 1 and the victims had provided a

       1
       The driver of the Charger testified that she “was a
hundred percent certain” at the time of the identification that
Franklin was one of the men who had stolen her vehicle.


                                           10
prior description of Franklin to the police that matched his

appearance when he was apprehended.                     Accordingly, we conclude

that the district court did not err in denying Franklin’s motion

to suppress the identification evidence.                       See United States v.

Saunders, 501 F.3d 384, 391-92 (4th Cir. 2007) (impermissibly

suggestive    out-of-court          photo    identification        did      not    violate

defendant’s      rights      when    the        identification        was       nonetheless

reliable under the totality of the circumstances); Abrams v.

Barnett,     121    F.3d     1036,     1041-42         (7th    Cir.     1997)      (unduly

suggestive show-up identification procedure was not a denial of

due process rights because the totality of the circumstances

established that the identification was nevertheless reliable).



                                           III.

     Franklin next argues that the government failed to prove at

least one element of each of the offenses.                        He maintains that

these alleged failures require that a judgment of acquittal be

entered on all charges.

     We    review      de     novo    a     district       court’s       denial        of    a

defendant’s motion for judgment of acquittal.                         United States v.

Alerre,    430     F.3d     681,    693     (4th    Cir.      2005).        A    defendant

challenging      the   sufficiency         of    the    evidence       faces      “a   heavy

burden.”      United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997) (citation and internal quotation marks omitted).                                 We

                                            11
must sustain a jury verdict if there is substantial evidence to

support it, viewing the evidence in the light most favorable to

the government, assuming the credibility of the evidence, and

drawing   all    favorable     inferences       from    the   evidence.        United

States v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir. 2011).

The   evidence    supporting     a    conviction       is   “substantial”      if    “a

reasonable      finder    of   fact    could     accept       [the    evidence]     as

adequate and sufficient to support a conclusion of a defendant’s

guilt   beyond    a   reasonable      doubt.”      Alerre,      430    F.3d   at    693

(citation and internal quotation marks omitted).

      Franklin    first    challenges     his    convictions         for   carjacking

(Counts 2 and 4) and conspiracy to commit carjacking (Count 1).

The elements necessary to support a conviction for conspiracy

under 18 U.S.C. § 371 include (1) an agreement to commit an

offense; (2) willing participation by the defendant; and (3) an

overt act in furtherance of the conspiracy. United States v.

Tucker, 376 F.3d 236, 238 (4th Cir. 2004).                    The government may

use circumstantial evidence to establish a defendant’s knowledge

and participation in the conspiracy.                United States v. Burgos,

94 F.3d 849, 857-58 (4th Cir. 1996) (en banc).

      With regard to the offense of carjacking in violation of 18

U.S.C. § 2119, the government was required to establish that the

defendant “(1) with intent to cause death or serious bodily harm

(2) took a motor vehicle (3) that had been transported, shipped

                                        12
or   received       in    interstate             or    foreign             commerce    (4)    from     the

person    or      presence       of    another             (5)    by        force   and     violence    or

intimidation.”           United States v. Foster, 507 F.3d 233, 246-47

(4th Cir. 2007) (citation and internal quotation marks omitted).

To   prove       the    intent        element         of        the    carjacking         offense,     the

government was required to show that when the defendant or his

co-conspirators demanded or took control of the vehicle, the

defendant or his co-conspirators had the intent to seriously

harm   or    to    kill     the       driver          if    necessary          to   steal     the     car.

Holloway v. United States, 526 U.S. 1, 12 (1999); see United

States v. Chorman, 910 F.2d 102, 111-12 (4th Cir. 1990) (noting

that under Pinkerton v. United States, 328 U.S. 640 (1946), a

conspirator may be convicted of substantive offenses committed

by co-conspirators in the course of and in furtherance of the

conspiracy);           Foster,    507       F.3d           at    247.          Although      an   “empty

threat”      or    an    “intimidating                bluff”          is     insufficient      standing

alone to establish the requisite intent, the government need

only     show     that     the        defendant             or        his    co-conspirators          were

“conditionally           prepared           to        act       if      the     person       failed    to

relinquish the vehicle.”                    See Holloway, 526 U.S. at 11; Foster,

507 F.3d at 247.

       In the present case, Franklin asserts that the carjacking

and conspiracy convictions cannot stand because the government

failed      to    establish           the    intent              element       of     the    carjacking

                                                      13
offense,     and        also   failed   to     show    that    the     object    of    the

conspiracy        was    to    commit   the    specific       crime    of    carjacking.

After reviewing the record, we conclude that the evidence was

sufficient to support a jury determination that Franklin had the

required intent with regard to those charges.

      The     evidence         overwhelmingly         established       that    Franklin

knowingly and actively participated with Frazier and Williams in

planning and conducting the theft of the two vehicles, which was

accomplished by pointing a gun at each of the two drivers and

demanding that they relinquish their automobiles.                           Notably, the

perpetrators did not merely display a gun during these incidents

but rather pointed the gun at the driver of each vehicle in

demanding     car       keys   and   other    possessions.        During       the    first

incident, Franklin “[did] the talking,” while Frazier aimed a

gun   at    the    driver.       Franklin      also    forcibly       removed   Gallion-

Thomas’ driver’s license from his person, and read aloud his

name and address in a manner that Gallion-Thomas perceived as a

threat.      During the second incident, Franklin “groped” one of

the vehicle’s passengers, searching for items to steal, while

Williams pressed a loaded handgun against the driver’s chest.

Franklin thereafter entered the Charger with Williams and left

the scene in the automobile.              We conclude that this evidence was

sufficient to support a jury determination that the object of

the conspiracy was to commit the offense of carjacking, and that

                                              14
the conspirators intended to inflict serious harm or to kill the

drivers if necessary to steal the cars.                          See United States v.

Augustin,     376   F.3d    135,       140       (3d   Cir.      2004)     (holding       that

defendant could be convicted of carjacking offenses even though

he purportedly did not know a co-conspirator intended to commit

a   carjacking      or     possessed         a    gun,      because        the       defendant

“ratified” the co-conspirator’s actions by failing to stop him

and instead entered the car with the co-conspirator and drove

away); United States v. Adams, 265 F.3d 420, 425 (6th Cir. 2001)

(physically     touching     a    carjacking           victim       with    a    weapon      is

sufficient,    standing      alone,      to       establish       intent        to    kill   or

inflict serious harm on the victim).

     Franklin next challenges his convictions under Counts 3 and

5 for possession of a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c).                            Franklin’s sole

argument is that these convictions cannot stand if we conclude

that the evidence is insufficient to support his carjacking and

conspiracy convictions.          Because we hold that the carjacking and

conspiracy     convictions       are    supported           by    ample     evidence,        we

conclude    that    Franklin’s     challenges          to     the    convictions         under

Counts 3 and 5 likewise fail. 2


     2
       Moreover, we note that to obtain a conviction under 18
U.S.C. § 924(c), the government must establish that (1) the
defendant possessed a firearm, and (2) such possession was in
(Continued)
                                             15
     Franklin also challenges his conviction under Count 6 for

being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1), arguing that the government failed to show

that he had actual or constructive possession of a gun at any

time during the carjacking incidents.               We disagree.

     To   establish       a    conviction      under    Section          922(g)(1),   the

government was required to prove three elements, namely, that

(1) the defendant was a convicted felon, (2) who voluntarily and

intentionally     possessed       a     firearm,    and     (3)     the    firearm    had

traveled in interstate commerce.                 United States v. Gallimore,

247 F.3d 134, 136 (4th Cir. 2001).                  Only the second element is

at   issue   in    this       appeal.       Proof      of       actual    or   exclusive

possession   was    not       required,     because         a    conviction     may   be

obtained on the basis of constructive or joint possession.                            Id.

at 136-37.




furtherance of a crime of violence. United States v. Lomax, 293
F.3d 701, 704 (4th Cir. 2002).     A defendant may be convicted
for violating Section 924(c) on the basis of a co-conspirator’s
use of a gun if the use was in furtherance of the conspiracy and
was reasonably foreseeable to the defendant.    United States v.
Wilson, 135 F.3d 291, 305 (4th Cir. 1998).    Here, the evidence
showed that during both carjacking incidents, one of Franklin’s
co-conspirators possessed a firearm and pointed it at the driver
in Franklin’s presence, thereby allowing the co-conspirators to
steal the victims’ cars and possessions.         Accordingly, we
conclude that the evidence supports Franklin’s convictions for
violating 18 U.S.C. § 924(c).



                                          16
       After    reviewing          the    record,       we     conclude       that   a    jury

reasonably could have inferred that Franklin possessed a gun

after    he    abandoned      the        Charger.        The    evidence       showed     that

Williams, who pointed a gun at the driver of the Charger during

the second incident, entered that vehicle along with Franklin,

and    that    they    both    drove      away     in    the   Charger       while   Frazier

remained in the LeSabre.                  According to Williams’ testimony, he

did not take the gun from the Charger when leaving the vehicle

after    the   collision.           Although       Williams       did   not    see   whether

Franklin took the gun from the Charger upon fleeing the vehicle,

the gun was found by a police officer in a stairwell located on

the same street where Franklin was apprehended.                             On the basis of

this    evidence,      the    jury       reasonably       could      have    inferred     that

Franklin took the gun from the Charger when he fled the vehicle,

and    discarded      the    gun    while    attempting         to    avoid    the   police.

Accordingly,          we    conclude        that        Franklin’s      conviction        for

violating Section 922(g)(1), as well as his other convictions,

are supported by substantial evidence.



                                             IV.

        Finally,      we    address       Franklin’s      argument      that     his     trial

counsel provided ineffective assistance by failing to inform him

of the potential prison sentence that could be imposed if he

were convicted of all charges.                   Franklin asserts that counsel’s

                                             17
failure to provide this information affected Franklin’s decision

to decline the government’s plea offers.

     We   repeatedly   have        stated    that    claims    of   ineffective

assistance of counsel are cognizable on direct appeal only when

the record conclusively demonstrates that defense counsel did

not provide effective representation.               United States v. Powell,

680 F.3d 350, 359 (4th Cir. 2012); United States v. Allen, 491

F.3d 178, 191–92 (4th Cir. 2007).              Here, the record does not

conclusively    establish     that     the    performance      of    Franklin’s

counsel   was   deficient     or     prejudicial.        See    Strickland   v.

Washington, 466 U.S. 668, 687 (1984).               Therefore, we decline to

address Franklin’s ineffective assistance of counsel claim in

this direct appeal.



                                       V.

     For these reasons, we affirm the district court’s judgment.



                                                                       AFFIRMED




                                       18
DAVIS, Circuit Judge, concurring:

       I concur fully in Judge Keenan’s carefully-reasoned opinion

for the panel affirming the judgment. I pause only to note the

continuing discomfort in the lower federal courts and in many

state courts over the Supreme Court’s outdated due process test

for the reliability of eyewitness identification evidence. See

ante, at 10 (applying Neil v. Biggers, 409 U.S. 188, 199-200

(1972)). See generally United States v. Greene, 704 F.3d 298,

305 n.3, 309 n.4 (4th Cir. 2013)(collecting authorities). As the

majority opinion shows, given the circumstances in the case at

bar,   one   could   hardly   reasonably   question   the   salience   of

witness “certainty” to the reliability analysis. To be sure,

however, such will not always be the case. Id.




                                   19
