United States v. Keith Lynn Jenkins

Citations: 904 F.2d 549; 30 Fed. R. Serv. 536; 1990 U.S. App. LEXIS 8697; 1990 WL 70572Docket: 87-1797

Court: Court of Appeals for the Tenth Circuit; May 31, 1990; Federal Appellate Court

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Keith Lynn Jenkins was convicted of multiple offenses related to drug distribution and conspiracy, including possession with intent to distribute cocaine and marijuana, conspiracy to possess and distribute controlled substances, violations of the Travel Act, engaging in a continuing criminal enterprise, distribution of controlled substances to minors, and income tax evasion. The convictions arose from a large drug distribution network in Utah, initially detailed in a ninety-two count indictment naming six defendants, which was later expanded to a ninety-six count superseding indictment adding tax evasion charges against Jenkins.

Key evidence presented at trial included testimony from lower-level participants in the drug distribution scheme, who received immunity in exchange for their testimonies. Jenkins was implicated in the importation of significant amounts of marijuana and cocaine from approximately 1980 to 1983, primarily purchasing marijuana from co-defendant Michael Doran in Arizona. He distributed these drugs through various wholesalers and retailers in the Salt Lake City area and partnered with co-defendant Craig McLachlan for cocaine distribution until a falling out in 1981. The proceeds from these drug sales were invested in various assets, which were subject to criminal forfeiture proceedings. Jenkins did not challenge the combined treatment of the criminal charges and the forfeiture actions during the trial. The appellate court affirmed his convictions on all counts.

Jenkins was found guilty on most counts, receiving a twenty-year sentence for a continuing criminal enterprise conviction, while the conspiracy charge was vacated. Sentences for substantive drug charges ran concurrently, but a three-year tax evasion sentence was consecutive. On appeal, Jenkins challenges the sufficiency of evidence for the continuing criminal enterprise conviction, claiming a variance in the conspiracy charge, improper evidence introduction, denial of a severance motion, misuse of a sanction affecting his ability to impeach, failure to separate forfeiture proceedings from the guilt phase, and grand jury abuse.

For a continuing criminal enterprise conviction, the prosecution must demonstrate a felony drug law violation, part of a series of violations, involving five or more persons, with the defendant in a management role, and generating significant income. Jenkins argued he did not exercise requisite authority over five persons. The court clarified that "organizer," "manager," and "supervisor" have common meanings, and the defendant need not be the dominant figure but must hold some managerial position. Evidence showed Jenkins engaged with various individuals in different capacities, suggesting he had a managerial role despite not being the primary leader.

Kim Barker and Dale Lowder assisted Jenkins in storing large amounts of marijuana at their home in exchange for discounts and facilitated drug deliveries. Jenkins frequently provided them drugs on credit, threatened their children for late payments, required Lowder to quit-claim his house as collateral, and dictated payment methods and restrictions on sales. Curtis Slack acted as a broker for Jenkins' cocaine purchases in Florida, transported the drugs to Utah, and was bailed out by Jenkins after his arrest. Brian Smith obtained marijuana on credit from Jenkins, acted as a courier for Jenkins' purchases from Arizona to Utah, and stored marijuana at his home. Guy Robertson represented Jenkins in marijuana transactions, while Wendell and Sherry Olsen arranged storage, set prices at Jenkins' direction, and helped establish new sales contacts. The evidence collectively indicated that Jenkins held a managerial role concerning these individuals, justifying the conviction for a continuing criminal enterprise.

Regarding evidentiary matters, the court admitted testimony about co-defendant McLachlan's violent behavior, including threats and assaults, despite objections from Jenkins and others about its relevance. Jenkins contended that this evidence could unfairly prejudice him, but the court highlighted its discretion in managing such matters. Jenkins did not raise specific objections during the trial, and the judge provided cautionary instructions to the jury to separate McLachlan's actions from Jenkins. The court concluded that Jenkins was not prejudiced by this evidence, as demonstrated by his acquittal on many charges, and affirmed the trial court's rulings on the admission of McLachlan's testimony.

Evidence of co-defendant Michael Patrick Doran's prior drug activities was admitted under Fed. R. Evid. 404(b) to establish his motive, intent, preparation, plan, knowledge, and identity in a drug conspiracy. Jenkins contends this evidence was unnecessary to strengthen the government's case against Doran and risks unfairly implicating Jenkins, who allegedly supervised Doran. The court previously upheld the admission of this evidence, affirming its relevance to Doran's intent to join the conspiracy while not addressing concerns about Jenkins' potential prejudice. 

Following the evidence admission, the trial court instructed the jury to disregard this testimony regarding Jenkins and other co-defendants, which is believed to mitigate any prejudicial impact, supported by a presumption of the effectiveness of such cautionary instructions.

Jenkins also contended that the trial court improperly denied him the chance to impeach key witness Curtis Slack with a prior inconsistent statement, asserting that the cocaine Slack transported did not belong to Jenkins. The trial court excluded the document containing this statement due to Jenkins' failure to share it with the government as required by a reciprocal discovery order. Jenkins argues that the court abused its discretion in this ruling, suggesting that a continuance or inspection of the document would have been more appropriate given Slack's critical testimony. However, the absence of the document in the record prevents a definitive ruling on this matter, leading to a deferral to the trial court's discretion due to insufficient evidence on appeal.

The district court denied Jenkins' motions to sever his trial from that of his co-defendants and to declare a mistrial based on the admission of evidence regarding McLachlan's violent acts. Jenkins claims these denials constituted an abuse of discretion that caused him actual prejudice. To warrant reversal, a defendant must demonstrate specific prejudice, a challenging burden that requires a strong showing. Jenkins argues the evidence of McLachlan's violence had a spillover effect that prejudiced him; however, the court found he did not adequately demonstrate this risk, especially since the court provided cautionary instructions. The joint trial of Jenkins and his co-defendants was justified under the rules promoting judicial efficiency, as they were jointly indicted on conspiracy charges and shared substantial factual overlaps in their cases. Additionally, Jenkins was involved in joint charges with McLachlan, further supporting the trial court's discretion in denying severance.

Regarding bifurcation, the government initiated forfeiture proceedings against Jenkins' property, and evidence related to this was presented during the guilt phase of his trial. The jury reached a verdict on both the criminal counts and forfeiture on the same day. Jenkins did not request separate jury consideration for the forfeiture but now argues that the trial court's failure to do so was plain error. The question of whether a jury should determine guilt before considering forfeiture is not definitively settled, with other circuits adopting varying approaches. In one case, the Third Circuit allowed limited bifurcation, presenting forfeiture evidence during the guilt phase, which raised concerns about the defendant's Fifth Amendment rights.

A rebuttable presumption in the forfeiture statute favors the government, which may hinder a defendant's ability to rebut claims, especially if this requires waiving the privilege not to testify. Consequently, the court mandated complete bifurcation of in personam criminal forfeiture proceedings from the guilt phase of criminal trials. In contrast, the D.C. Circuit in United States v. Perholtz denied a defendant's request for separate RICO forfeiture proceedings, asserting that a unitary trial complied with due process and that no bifurcation rule was necessary. The Ninth Circuit in United States v. Feldman recognized that under certain circumstances—such as complex evidence or evidentiary difficulties—bifurcation might be warranted. It emphasized that trial courts should generally separate forfeiture proceedings from guilt ascertainment, allowing distinct jury deliberations. Bifurcation of evidence presentation is at the trial court's discretion unless the defendant demonstrates a need for a hearing on assets subject to forfeiture. 

The court acknowledged the unfair dilemma defendants face when evidence of both forfeiture and guilt is presented simultaneously. However, if a defendant does not intend to testify on forfeiture, combining the proceedings may be justifiable for efficiency. The responsibility lies with the defendant to communicate a desire to testify on forfeiture issues. In the case of Jenkins, he did not express a wish to testify or request bifurcation during the trial, leading the court to conclude that he did not intend to testify on forfeiture matters. Thus, the trial court's decision to allow jury consideration of guilt and forfeiture together was not considered plain error.

Jenkins contends that the simultaneous reading of jury instructions on forfeiture and guilt risks confusing the jury regarding the different burdens of proof—preponderance of the evidence for forfeiture and beyond a reasonable doubt for convictions. While acknowledging that separating these instructions would have been preferable, it was noted that Jenkins did not request bifurcation during the trial. A cautionary instruction was provided to mitigate potential confusion, leading the court to determine that there was no plain error in the instruction method.

Additionally, Jenkins argues that the trial court erred by not dismissing the indictment due to alleged grand jury abuse. He claims that the government improperly sought additional testimony to bolster its case against him after the superseding indictment, citing previous case law. However, a magistrate's in camera hearings concluded that Jenkins did not demonstrate such abuse, a finding Jenkins failed to contest effectively. Furthermore, he did not show how the grand jury testimony prejudiced him or affected the fairness of his trial. Consequently, his claim of grand jury abuse was rejected.

Jenkins' conviction is affirmed by U.S. District Judge Wesley E. Brown. Doran, retried separately, was convicted on seven counts; five counts were affirmed on appeal, while two were reversed due to Speedy Trial Act violations. The definition of a continuing criminal enterprise was cited from 21 U.S.C. Sec. 848(b), which aligns with the current version at 21 U.S.C. Sec. 848(c). Jenkins raised a new argument in his Reply Brief concerning a lack of specific information in the indictment about the individuals he allegedly organized, which he did not appeal in the district court. He also claimed that the jury's potential disagreement on which five individuals satisfied the continuing criminal enterprise requirement violated jury unanimity. However, this issue was not included in his Opening Brief, limiting the government's ability to respond. The court declined to consider the matter due to insufficient briefing. Jenkins argued that the indictment's characterization of his involvement in a single drug conspiracy conflicted with the trial evidence of multiple conspiracies, but the court found this issue moot following the affirmation of his continuing criminal enterprise conviction. Moreover, Jenkins contended that certain evidence was character evidence under Fed. R. Evid. 404(b), but the court ruled it was relevant to demonstrate McLachlan's involvement in the conspiracy, not character conformity. The court also questioned Jenkins' standing to challenge evidence affecting a co-defendant without personal prejudice. Lastly, Jenkins' counsel indicated an intention to supplement the record with a document from a co-defendant, but this was never accomplished, and the trial court's discretion in the matter was deemed appropriate.

Tactics employed by Jenkins contradict the mutual discovery order outlined in Fed. R. Crim. P. 16(c), which mandates timely notification to opposing counsel upon discovering previously requested evidence. Jenkins contends in his Reply Brief that trial evidence indicated distinct conspiracies involving Jenkins and McLachlan as non-common participants. However, evidence also established their partnership in a distribution system until a conflict arose in October 1981. The court acknowledged a defendant's constitutional rights to refrain from testifying and to protect property from unlawful seizure, emphasizing that a defendant's right to retain potentially non-forfeitable property should not be compromised by their decision not to testify during the guilt phase. Under 21 U.S.C. § 853(d), a rebuttable presumption exists that a convicted felon's property is subject to forfeiture if the government proves the property was acquired during the violation and no other funding source is likely. The court in Perholtz referenced McGautha v. California, which upheld the constitutionality of a unitary trial proceeding that combined guilt and sentencing phases, stating that the risk of losing allocution rights does not compel testimony. The reasoning was deemed applicable to criminal forfeiture, which functions as a punitive measure. In Sandini, the court avoided addressing the constitutionality of such proceedings but acknowledged the implications for self-incrimination and due process. The Ninth Circuit in Feldman also refrained from a constitutional ruling while suggesting that failure to bifurcate trials is not inherently unconstitutional. Jenkins does not assert that bifurcation is a constitutional necessity, thereby leaving the constitutional implications of unitary proceedings unexamined in this context.

In Feldman, the court established that a conviction for criminal RICO charges fulfills all necessary criteria for the forfeiture of the associated enterprise under 18 U.S.C. § 1963(a). The D.C. Circuit in Perholtz denied a defendant's request for bifurcation in a RICO forfeiture case, emphasizing that the present case, involving criminal forfeiture under 21 U.S.C. § 853, did not present a similar request, thus leaving the question of consistency with Perholtz unresolved. The ruling in Perholtz raises concerns about the challenges of a unitary proceeding in forfeiture cases. Additionally, Jenkins accepts the preponderance of evidence standard for determining property forfeiture under 21 U.S.C. § 853, although there is noted disagreement on this standard, as highlighted in United States v. Hernandez-Escarsega, but this issue is not addressed in detail here.