United States District Court, D. Utah
RICHARD JENKS, JR. Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR
PAYMENT OF EXPERT TESTING
the court is Mr. Jenks' Motion for Payment of Expert
Testing, (ECF No. 10). As explained below, the court DENIES
Mr. Jenks' Motion.
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
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.)
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).)
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.)
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).”).)
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.)
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.)
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.)
April 3, 2019, the Government filed an Opposition to Mr.
Jenks' Motion. (ECF No. 9.) The ...