United States v. Jenkins, 17-1756
| Decision Date | 15 March 2018 |
| Docket Number | No. 17-1756,17-1756 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BETTY LEE JENKINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
DAMON J. KEITH, Circuit Judge. Appellant Betty Lee Jenkins was convicted of one count of conspiracy to manufacture 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(vii), and eleven counts of maintaining a drug-involved premise, in violation of 21 U.S.C. § 856(a)(1), (b), on January 12, 2015. Jenkins was subsequently sentenced to 126 months of incarceration on August 31, 2015.1 On October 3, 2016, defense counsel filed a Motion for a New Trial on the basis of newly discovered evidence, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The district court denied the motion, finding that Jenkins failed to establish prongs two and four of the test established in United States v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982). Jenkins now appeals the district court's denial of the motion, alleging that a recorded statement captured on surveillance video during the execution of a search warrant in November 2013 constitutes newly discovered evidence, and thus, entitles her to a new trial under Fed. R. Crim. P. 33. In accordance with the district court'sdetermination, we likewise find Jenkins's showing insufficient. For the reasons set forth below, we affirm the district court's denial of Jenkins's motion.
Jenkins's convictions arose from her involvement in a conspiracy to construct marijuana "grow rooms" to cultivate large amounts of marijuana and sell said product for profit to customers throughout the states of Michigan, Ohio and Rhode Island. In addition to manufacturing the supply and maintaining the growing facilities, Jenkins and her boyfriend, fellow co-conspirator Phillip Walsh, recruited Dr. Gregory Kuldanek to fraudulently produce hundreds of physician certifications for Jenkins's customers to procure patient identification cards for medical marijuana, using the company name, BL Boop Enterprises.2 In furtherance of the conspiratorial scheme, Jenkins and Walsh also recruited several individuals, including Jenkins's son and son-in-law, to grow, maintain, and sell the marijuana produced at various growth facilities.
On November 6, 2013, upon receipt of information regarding a suspected marijuana growth operation at the residence of one of Jenkins's recruits, Kathy Rosengren, agents of the Drug Enforcement Agency (DEA) and the Kent County Sheriff's Department (KANET), executed a search warrant for Rosengren's residence.
Based on the evidence discovered at Rosengren's apartment, agents secured and executed search warrants for Jenkins's residence and several other units located in apartment buildings owned by Jenkins. During the searches officers found evidence of active marijuana manufacturing operations on these premises and recovered more than 300 marijuana plants,growth schedules, Michigan Medical Marihuana Act (MMMA) applications and paperwork, scales, and shipping boxes.
According to the testimony of Detective Nicholas Schwein, when officers arrived at Jenkins's residence to execute the search warrant, Jenkins was seated in a vehicle parked outside of the home. She was asked to step out of vehicle and was placed in handcuffs, and later escorted to the officers' van for questioning. Detective Schwein testified that Jenkins was read her Miranda rights, but did not sign the waiver card because her hands were handcuffed behind her back. At this point Jenkins asserts that she requested counsel. Detective Schwein testified that Jenkins made a comment asking whether a lawyer should be present. Interpreting the statement as a request for legal advice, Schwein declined to answer Jenkins and proceeded with his questioning. During the encounter, Jenkins made several inculpatory statements regarding her participation in and knowledge of the drug operations to the executing officers. Though detained throughout the search of her residence and the other apartments, Jenkins was released later that evening.
On April 22, 2014, a nine-count grand jury indictment was returned charging Jenkins, Walsh, and four co-conspirators with conspiracy to manufacture 100 or more marijuana plants and maintaining drug-involved premises. An arrest warrant was issued for Jenkins, and officers returned to the residence of Jenkins and Walsh on April 29, 2014. During the execution of the warrant, officers searched the property with the consent of the defendants and found more than 20 marijuana plants, over a kilogram of marijuana and edible food items containing marijuana.
At her arraignment on May 5, 2014, Jenkins pled not guilty to all nine counts of the original indictment and was released on bond.3 Two weeks later, Jenkins's counsel filed a motion to suppress the evidence and statements obtained during the November 6, 2013 search, alleging violations of the Fourth and Fifth Amendments. A hearing on the motion to suppress was held on August 15, 2014.4
During the suppression hearing, Jenkins asserted that she was subjected to custodial interrogation prior to being advised of her Miranda rights. She further contended that law enforcement officers were unresponsive to her repeated requests for counsel. On November 6, 2014, the district court denied Jenkins's motion, crediting Detective Schwein's account of the interrogation, which was also corroborated by the testimony of other officers present during the warrant execution. Referencing Jenkins's testimony regarding the existence of video surveillance footage taken of the police encounter, the court stated that audio or video recordings that corroborated her testimony "would [have] be[en] a silver bullet, but no tape has been provided to the Court," and noted further that, "Jenkins seemingly did not attempt to get a copy of the tapes for the purposes of this motion."
Next, addressing Jenkins's contention that she requested an attorney prior to the officers' questioning, the court credited the police report recording Jenkins as stating "that she thought she should have a lawyer present before answering questions." The court, however, in application of the rule articulated in Davis v. United States, 512 U.S. 452, 459 (1994), determined thatJenkins's statement was interrogatory and did not constitute an "unambiguous and unequivocal request" for counsel.5
Following the court's denial of the suppression motion, Jenkins and Walsh declined plea offers and proceeded to trial.6 After a six-day jury trial, Jenkins and Walsh were found guilty on all twelve counts. Jenkins and Walsh appealed.
On direct appeal, Jenkins challenged the district court's denial of her motion to suppress. See United States v. Walsh, 654 F. App'x 689, 701-04 (6th Cir. 2016). The court affirmed the judgment, declining to find clear error in the district court's credibility determination.7 Id. at 703.
On October 3, 2016, Jenkins filed a motion for a new trial on the basis of newly discovered evidence. The newly discovered evidence at issue is "a surveillance video of a search of [Jenkins's] home," containing the audio and video recording of Jenkins's statement, "I want my rights," which she claims encompasses her request for counsel prior to custodial interrogation. The district court, applying the test for newly discovered evidence outlined in Barlow, denied Jenkins's motion, finding that she failed to establish the second and fourth factors of the Barlow analysis. Specifically, the court determined that Jenkins and her trial counsel, having prior knowledge of the existence of surveillance recording prior to trial, failed toexercise due diligence in discovering the recording of her rights-invoking statement. Additionally, the court found that given the amount of other inculpatory evidence offered by the government against Jenkins, even if a new trial were conducted, "the idea that the video evidence would likely produce an acquittal if the case were retried is a fantasy." Jenkins's appeal of the district court's denial of her motion for a new trial is now before this panel for review.
This court reviews a district court's denial of a motion for a new trial under an abuse of discretion standard, reversing the district court's decision only when it relies on "clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." United States v. Lewis, 521 F. App'x 530, 531 (6th Cir. 2013) (internal citation omitted).
Rule 33 of the Federal Rules of Criminal Procedure provides, in pertinent part, that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). To demonstrate that a new trial is warranted on the basis of newly discovered evidence, a defendant must prove: (1) the new evidence was discovered after the trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence would likely produce acquittal. United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991) (citing United States v. O'Dell, 805 F.2d 637, 640 (6th Cir. 1986)); see also Barlow, 693 F.2d at 966. The burden of proof rests with the defendant. See United States v. McLain, 9 F. App'x 463, 464 (6th Cir. 2001).
Jenkins asserts that the district court abused its discretion in finding that she failed to satisfy the second and fourth prongs of the Barlow standard. In accordance with the trial court'sdecision, we also find Jenkins's showing insufficient to satisfy the Barlow factors, and affirm the district court's...
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