Date: 11-20-2017

Case Style:

Case Number: 16-4119

Judge: Carlos F. Lucero

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Utah (Salt Lake County)

Plaintiff's Attorney: Trina A. Higgins and J. Drew Yeates

Defendant's Attorney: Scott Keith Wilson - FPD

Description: A jury convicted Richard Jenks Jr. of multiple counts of sexually abusing his
minor stepdaughter. Jenks now appeals his conviction and sentence. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
After marrying Jenks, a member of the Ute Tribe, Elizabeth Dini sent her
daughter, D.W., to live with her maternal grandparents. At 8 years old, D.W.
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
November 16, 2017
Elisabeth A. Shumaker
Clerk of Court
2
returned to live with her mother and Jenks. By that time, the couple had several
children in common.
Just before D.W. turned 12, Jenks propositioned her for oral sex in exchange
for an iPod. Over the next five years, the frequency and content of Jenks’ sexual
abuse escalated to include anal and vaginal sex, often in exchange for gifts. D.W.
eventually reported the abuse to her mother, who notified the authorities.
Jenks was tried on one count of aggravated sexual abuse of a child within
Indian Country in violation of 18 U.S.C. §§ 1153(a), 2241(c), and two counts of
sexual abuse of a minor within Indian Country in violation of 18 U.S.C. §§ 1153(a),
2243(a). At trial, the defense attacked the government’s evidence by questioning its
investigative and testing methods. In response, the district judge submitted the
following instruction to the jury:
You have heard some evidence about searches conducted by law
enforcement officers in connection with this case. The lawfulness or
legality of a search conducted by law enforcement is a matter for the
court and is not a factor that should in any way enter your deliberations.
All of the evidence recovered in this case was collected pursuant to a
lawful search.
You have also heard testimony as to the manner in which the
government conducted its investigation in this case including certain
investigative methods or techniques that were used and certain
investigative methods or techniques that were not used. In attempting to
prove its case, the government is under no obligation to use all of the
investigative methods that are available to it or use any particular
method. The question is whether the evidence presented is sufficient to
convince you beyond a reasonable doubt of the defendant’s guilt.
Jenks objected to this instruction, arguing that it “relieve[d] the government of [its]
burden” and “negate[d] a defensive argument of reasonable doubt because
3
technique[s] were not used.” He proposed adding a final line to the instruction:
“However, if the investigative methods, equipment, or techniques that were used or
not used leave you with a reasonable doubt as to the guilt or innocence of the
defendant, then you must find him not guilty of the charge(s).” The district court
overruled the objection and gave the instruction reproduced above. Defense counsel
nevertheless addressed the government’s investigative techniques and methods in his
closing argument before the jury.
The jury returned a guilty verdict on all three counts. The district court
sentenced Jenks to the statutory-minimum sentence of 30 years’ imprisonment,
followed by a lifetime of supervised release. In conjunction with the supervised
release, the court imposed the following restrictions:
The defendant is restricted from contact with individuals under the age
of 18 without adult supervision except as approved by the probation
office. The defendant shall abide by the following occupational
restrictions: Any employment shall be approved by the probation office.
If third-party risks are identified, the probation office is authorized to
inform the defendant’s employer of his status.1
Jenks timely appealed.
II
Jenks first challenges the district court’s investigative-techniques jury
instruction. He argues that, by prefacing its investigative-techniques instruction with
a statement that all searches were lawful and all evidence lawfully obtained, the court
1 For convenience, we refer to the first condition as the “associational
restriction” and the second set of conditions as the “occupational restrictions.”
4
accorded too much deference to the government, inhibiting the jury’s ability to
consider law enforcement neglect.
Jury Instruction
“We review a district court’s decision on whether to give a particular jury
instruction for abuse of discretion,” United States v. Sorensen, 801 F.3d 1217, 1228
(10th Cir. 2015) (quotation omitted), but “[w]e review de novo whether jury
instructions, as a whole, correctly state the law and provide the jury with an
understanding of the issues,” United States v. Little, 829 F.3d 1177, 1181 (10th Cir.
2016). We will reverse only when we have “substantial doubt that the jury was fairly
guided.” United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994) (quotation
omitted).
Jenks concedes that we have previously affirmed some of the language
included in the district court’s jury instructions. In United States v. Johnson, 479 F.
App’x 811 (10th Cir. 2012) (unpublished), for example, we held that the following
instruction accurately stated the law and “did not prevent the jury from considering
the extent of the government’s investigation”:
You have heard testimony as to the manner in which the government
conducted its investigation in this case including certain investigative
methods or techniques that were used and certain investigative methods
or techniques that were not used. In attempting to prove its case, the
government is under no obligation to use all of the investigative
methods that are available to it or use any particular method. The
question is whether the evidence presented is sufficient to convince you
beyond a reasonable doubt of the defendant’s guilt.
5
Id. at 817. The difference in this case, Jenks contends, is that this language was
preceded by an additional instruction, which suggested that “the actions of law
enforcement officers were correct and lawful,” thus misleading the jury as to its
ability to “consider[] any police neglect or failure.”
But Jenks’ argument exaggerates the nature of the district court’s instruction.
The instruction did not “bless[] the actions of law enforcement” or direct the jury to
“wholly disregard . . . inadequacies” in the investigation; it merely informed the jury
that the lawfulness of a search is a matter for the court and that the government may
choose its investigative techniques. This is an accurate statement of the law. See
United States v. Morgan, 855 F.3d 1122, 1125 (10th Cir. 2017) (“The ultimate
determination of the reasonableness of a search and seizure under the Fourth
Amendment is a question of law . . . .”). Although Jenks nevertheless contends that
the instruction was misleading when considered as a whole, we are not persuaded that
the confluence of these independently correct statements of law misled the jury as to
“the relevant standards and factual issues in the case.” United States v. Alexander,
817 F.3d 1205, 1210 (10th Cir. 2016). Accordingly, we detect no abuse of discretion
in the district court’s decision to give the investigative-techniques instruction.
Supervised Release Conditions
Jenks next argues that the district court erred in imposing the associational and
occupational conditions on his supervised release because the conditions improperly
delegate to the probation office the judicial authority to impose punishment. He also
argues that the district court erred in failing to support the occupational condition of
6
supervised release with required fact-finding. Because he did not raise these
objections in the district court, we review the release conditions for plain error.
“Under this demanding standard, he must demonstrate: (1) an error, (2) that is plain,
which means clear or obvious under current law, and (3) that affects substantial
rights.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012) (quotation
omitted). If he meets these criteria, this court may, in its discretion, reverse the error
if “it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir.
2014) (quotation omitted). When the alleged error is not constitutional, “we will
only exercise our discretion when an error is particularly egregious and the failure to
remand for correction would produce a miscarriage of justice.” United States v.
Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005) (quotations omitted). When the
alleged error is constitutional, we employ a “relaxed standard,” “not requir[ing] the
exceptional showing required to remand a case of non-constitutional error.” United
States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005).
1. Associational Condition
Jenks argues that the supervised release condition restricting his contact with
minor children without adult supervision is an improper delegation of judicial
authority because the probation office is left to approve all aspects of the adultsupervised
contact. “It is well established that probation officers have broad
authority to advise and supervise probationers,” but “Article III prohibits a judge
from delegating the duty of imposing the defendant’s punishment to the probation
7
officer.” United States v. Mike, 632 F.3d 686, 695 (10th Cir. 2011) (alteration and
quotation omitted). Delegations of “ministerial acts or support services related to the
punishment imposed . . . are permissible,” while “those that allow the officer to
decide the nature or extent of the defendant’s punishment” are not. Id. “This inquiry
focuses on the liberty interest affected by the probation officer’s discretion.” United
States v. Bear, 769 F.3d 1221, 1230 (10th Cir. 2014). “Conditions that touch on
significant liberty interests are qualitatively different from those that do not.” Id.
(quotation omitted).
We conclude that the associational supervised release condition was not plain
error, because it is not plain or obvious that the condition affects a significant liberty
interest. Jenks argues that it does because it could prohibit all contact with children,
including family members. He does not, however, cite any authority supporting the
idea that he has a significant liberty interest in associating with any minor child to
whom he is related, regardless of custodial status or affinity. Though Mr. Jenks
might be able to assert a significant liberty interest in the care, custody, and control
of his own or other children with whom he has a custodial relationship, see Troxel v.
Granville, 530 U.S. 57, 65-66 (2000), any such relationship after his 30-year prison
sentence ends is very unlikely.
It is possible that Jenks may have minor-child relatives (like grandchildren)
when he begins his term of supervised release, but it is not clear that a non-custodial
relationship with a minor relative entails a significant liberty interest. See United
States v. White, 782 F.3d 1118, 1140-41 (10th Cir. 2015) (discussing in dicta the lack
8
of authority indicating a significant liberty interest in a non-custodial relationship
with a minor-child relative). Jenks cites no authority for the proposition that he has a
significant liberty interest in familial association with children with whom he has no
custodial relationship. This lack of authority precludes a finding of plain error.
Because an improper delegation exists only where a significant liberty interest is
affected by the delegation, and because it is not plain or obvious that Mr. Jenks has a
significant liberty interest in a non-custodial relationship with any as-yet-to-be-born
minor child relative, it was not plain error for the district court to impose this
particular associational condition under the facts of this case.
2. Occupational Condition
The government concedes both that the district court obviously erred in
assessing the occupational restrictions without retaining ultimate authority over the
conditions and that it was obvious error to impose the occupational restrictions
without factual findings. It argues, however, that Mr. Jenks has not shown his
substantial rights were affected by these errors and that this court should decline to
exercise its discretion to correct the errors.
In imposing conditions of supervised release under 18 U.S.C. § 3563(b)(5),
district courts may require that a defendant “refrain . . . from engaging in a specified
occupation, business, or profession bearing a reasonably direct relationship to the
conduct constituting the offense, or engage in such a specified occupation, business,
or profession only to a stated degree or under stated circumstances.” And U.S.S.G.
9
§ 5F1.5(a) states that, before imposing such an occupational restriction, the district
court must first determine that:
(1) a reasonably direct relationship existed between the defendant’s
occupation, business, or profession and the conduct relevant to the
offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to protect
the public because there is reason to believe that, absent such
restriction, the defendant will continue to engage in unlawful
conduct similar to that for which the defendant was convicted.
To show an effect on his substantial rights, Mr. Jenks “must show a reasonable
probability that, but for the error claimed, the result of the proceedings would have
been different.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (en banc) (quotation omitted). Mr. Jenks maintains that “the result of his
sentencing necessarily would have been different if the court had not granted judicial
authority to the probation office.” “That alone,” he contends, “shows a reasonable
probability of a different result.” “Under plain error review, we may vacate special
conditions of supervised release only if the record reveals no basis for the conditions.
If the record reveals a basis, there is no reasonable probability that but for the error
the defendant’s sentence would be different and thus the proceeding’s fairness was
not impacted.” United States v. Barela, 797 F.3d 1186, 1192 (10th Cir. 2015).
The clear language of § 3563(b)(5) and the Guidelines requires a “reasonably
direct relationship” between the occupational restriction and the conduct relevant to
the offense of conviction. United States v. Erwin, 299 F.3d 1230, 1232 (10th Cir.
2002); see also United States v. Wittig, 528 F.3d 1280, 1288 (10th Cir. 2008)
10
(discussing the necessary conditions to support occupational restrictions). In this
case, the occupational restrictions required Jenks’ probation officer to approve any
employment and authorized the officer to disclose his status to an employer if the
officer identified “third-party risks.” Neither the district court nor the probation
office’s presentence investigation report specified a reason for imposing these
restrictions.
The government argues that Jenks’ position on the tribe’s business committee
was directly related to the conduct of his offense, because he instructed D.W. to say
the rumors of his conduct were politically motivated. Despite the district court’s
failure to make the necessary factual findings, this direct relationship remains fairly
clear. Still, direct relationship is only half of the inquiry. The Guidelines also
required the district court to determine that the occupational restriction was
“reasonably necessary to protect the public because [otherwise] the defendant will
continue to engage in unlawful conduct similar to that for which the defendant was
convicted.” U.S.S.G. § 5F1.5(a)(2). In other words, there must be something in the
record to justify the probation office’s authority to approve not only future political
office Jenks may hold, but any job he may hold.
On this second prong, the occupational restrictions are entirely too broad to
prevent Jenks from engaging in similar unlawful conduct, because they require him
to get approval to engage in any work, even that which would not provide an
opportunity for him to engage in similar unlawful conduct. Thus, because “the
11
record reveals no basis” for the occupational restrictions, Jenks has established a
violation of his substantial rights. Barela, 797 F.3d at 1192.
The imposition of special conditions of supervised release without the required
findings affects “the fairness, integrity, or public reputation of the proceedings
because these conditions were likely more severe than the ones the district court
would have imposed had it fulfilled its obligation to explain its reasoning for
imposing any special conditions.” United States v. Burns, 775 F.3d 1221, 1225 (10th
Cir. 2014) (quotation omitted). We therefore reverse.
* * *

HOLMES, J., concurring:
I join the majority’s order and judgment in full, except for its disposition of the
jury-instruction issue. There, I conclude that, even if the district court committed
instructional error, that error was harmless on the facts of this case.

Outcome: For the foregoing reasons, we conclude that the district court properly
instructed the jury, that the district court’s delegation to the probation office in the
associational condition was not plain error, and that there was plain error both in the
imposition of the occupational condition without the required factual findings and in
delegation with regard to the occupational restrictions. As a result, we affirm both
the conviction and the sentence with regard to the associational condition on
supervised release. We vacate the sentence with regard to the occupational condition
on supervised released and remand for the district court to make factual findings and
conduct resentencing consistent with this order and judgment.

Plaintiff's Experts:

Defendant's Experts:

Comments: