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Jenks v. United States

United States District Court, D. Utah

July 2, 2019

RICHARD JENKS, JR. Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER DENYING MOTION FOR PAYMENT OF EXPERT TESTING

          CLARK WADDOUPS JUDGE

         Before the court is Mr. Jenks' Motion for Payment of Expert Testing, (ECF No. 10). As explained below, the court DENIES Mr. Jenks' Motion.

         Background

         On February 11, 2015, a grand jury returned a four count indictment, charging Mr. Jenks with two counts of aggravated sexual abuse of a child and two counts of sexual abuse of a minor. (2:15-cr-72, ECF No. 1.) Investigation into these charges began around October 7, 2014, when Mr. Jenks' wife had reported to the Fort Duchesne Police Department that her (then) 16-year-old daughter, (the Victim), had disclosed that her step father, Mr. Jenks, had been sexually molesting the Victim since she was 11 years old. Investigators subsequently spoke with the Victim, who told them that when Mr. Jenks sexually assaulted her, he would use a condom and then throw the condoms away in a large wood pile behind their residence.

         On February 19, 2015, Mr. Jenks entered a plea of not guilty to the charges. (2:15-cr-72, ECF No. 3.) According to Mr. Jenks, “[t]he government first provided . . . discovery regarding [an] FBI DNA report” to his trial counsel “on or about February 26, 2015 . . . .” (ECF No. 1 at 4.) According to Mr. Jenks, “[t]he FBI report informed trial counsel that the analyst examined only five of the 19 condoms collected in October, 2014.” (ECF No. 1 at 4.) Mr. Jenks alleges that one of those five condoms was not tested for DNA evidence because the FBI's expert believed “that no DNA evidence would be able to be collected from it.” (See ECF No. 1 at 4.) Of the remaining four condoms that were “examined, ” Mr. Jenks alleges the following:

Petitioner's DNA was not found on one of the tested condoms, although his [step] daughter's DNA was found on that condom. On two other condoms, Petitioner could not be excluded as being a minor contributor with his daughter being the major contributor. On one of these condoms, the statistical significance on which the government's expert could not exclude Petitioner was extremely weak. On the fourth condom, the government expert testified that to a “reasonable degree of scientific certainty” Petitioner's DNA was located on one side of the condom and his [step-] daughter's was located on the other side.

(ECF No. 1 at 4-5.) According to Mr. Jenks, his trial counsel “never asked” “their own” “DNA expert” to conduct independent testing of any of the condoms.” (ECF No. 1 at 6.)

         On September 17, 2015, Mr. Jenks filed a Sealed Motion to Admit Evidence of Alleged Victim's Prior Sexual History pursuant to Rule 412 of the Federal Rules of Evidence. (2:15-cr-72, ECF No. 68.) On December 21, 2015, a hearing was held on Mr. Jenks' Motion-among other motions. (See 2:15-cr-72, ECF No. 99.) At this hearing, Mr. Jenks' trial counsel proffered evidence of the victim's alleged sexual activity with five other men. (See 2:15-cr-72, ECF No. 96 at 3.) The Government had interviewed these men about their sexual history with the victim. (See ECF No. 1 at 7 (“Instead, even though trial counsel obtained the names of others who had possibly engaged in sexual relations with the alleged victim, counsel failed to interview the potential witnesses, but nevertheless provided the names to the government, which then conducted further investigation of these potential witnesses.”) (emphasis added).)

         On December 22, 2015, the court denied Mr. Jenks' Motion. The court found that “[t]hese interviews establish[ed] that only four of” the men “admitted to being actually sexually active” with the victim. (See 2:15-cr-72, ECF No. 96 at 3.) “Of these four, one of them stated that” he and the Victim “began having sex after the allegations in the indictment ended.” (See 2:15-cr-72, ECF No. 96 at 3.) The other three individuals stated that they had had sexual intercourse with the Victim during the period of time alleged in the indictment, but “most of these instances of sexual conduct occurred at these individual's homes, making any evidence from these encounters unlikely to be found in the woodpile on Mr. Jenks' property.” (See 2:15-cr-72, ECF No. 96 at 3.) Additionally, “all three men stated that they did not use condoms when they had sex with” the Victim. (See 2:15-cr-72, ECF No. 96 at 3.) For these reasons, the court found that the Victim's “activity with these individuals could not account for the physical evidence recovered from the woodpile . . . .” (See 2:15-cr-72, ECF No. 96 at 4.)

         According to Mr. Jenks, “[t]he government then obtained DNA samples from” the men they had interviewed, “and compared them to the results obtained from the four condoms.” (See ECF No. 1 at 7 n. 2.) On December 30, 2015, an FBI Laboratory Report was completed. (ECF No. 1-6 at 2.) This report appears to have concluded that the other men's DNA was not found on any of the four condoms the Government had previously tested. (See ECF No. 1-6 at 3 (“A . . . are excluded as potential contributors of the DNA obtained from items 3(1), 5(2), 7(1), 7(2), and 10(1).”).)

         A jury trial was held in January of 2016. (See 2:15-cr-72, ECF No. 116.) Mr. Jenks “was convicted on Counts 1, 3, and 4 of the Indictment. (ECF No. 1 at 2.) “Sentencing was held on June 17, 2016, and judgment was entered on June 24, 2016.” (ECF No. 1 at 1.)

         On February 11, 2019, Mr. Jenks filed a Motion to Vacate and Set Aside Conviction and Sentence Under 28 U.S.C. Section 2255. (ECF No. 1.) In this Motion, Mr. Jenks alleges that his trial counsel was ineffective for four reasons. Relevant here, he alleges that his trial counsel provided ineffective assistance by failing to properly investigate the DNA evidence in a timely manner and by failing to properly analyze the government's DNA results. (ECF No. 1 at 3-4.) More specifically, Mr. Jenks argues that his trial counsel's “failure to test the remaining 14 condoms was error in two aspects.” (ECF No. 1 at 7.)

         First, he argues that “at the hearing on the Federal Rules of Evidence, Rule 412 motion, trial counsel admitted that they had not tested the remaining fourteen condoms and thus could not argue that Petitioner's DNA was not on those condoms or that some other male's DNA along with that of the alleged victim was on those condoms.” (ECF No. 1 at 8.) Alternatively, Mr. Jenks argues that “the testing of the other condoms might have uncovered additional evidence against [Mr. Jenks], which would have facilitated case settlement. But as a result of the [trial] counsel's failure to investigate the DNA evidence in the case, the [trial] attorneys had no basis on which to encourage [Mr. Jenks] to settle the case.” (ECF No. 1 at 8.)

         On April 3, 2019, the Government filed an Opposition to Mr. Jenks' Motion. (ECF No. 9.) The ...


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