16‐461
United States v. Joseph Jenkins
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 22nd day of March, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
RICHARD C. WESLEY,
Circuit Judges,
RICHARD K. EATON,
Judge.1
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UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 16‐461
1 Judge Richard K. Eaton, of the United States Court of International Trade,
sitting by designation.
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JOSEPH JENKINS,
Defendant‐Appellant.
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FOR APPELLANT: Daniel DeMaria, Merchant Law
Group LLP, New York, NY.
Joseph Jenkins, pro se
FOR APPELLEE: Carina H. Schoenberger, Assistant
United States Attorney, for Grant C.
Jaquith, United States Attorney for
the Northern District of New York,
Syracuse, NY.
Appeal from a final judgment and sentence of the United States District
Court for the Northern District of New York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment and sentence of the district
court be AFFIRMED.
Defendant‐appellant Joseph Jenkins appeals from a February 3, 2016 final
judgment and sentence of the United States District Court for the Northern
District of New York, convicting Jenkins of perjury, in violation of 18 U.S.C. §
1621(2). Jenkins raises three arguments by counsel, and additional arguments
pro se in a supplemental brief. Through counsel, Jenkins argues that: (1) the
district court erred in not granting his Fed. R. Crim. P. 29 motion because there
was insufficient evidence to sustain his conviction for perjury; (2) the district
court violated his Sixth Amendment rights by imposing a consecutive sentence
without a jury finding to determine if a concurrent or consecutive sentence
should be given; and (3) his sentence is procedurally and substantively
unreasonable. We assume the parties’ familiarity with the underlying facts, the
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procedural history, and the issues presented for review.
1. Jenkins challenges the denial of his Fed. R. Crim. P. 29 motion.
According to Jenkins, the district court lacked sufficient evidence to sustain his
conviction for perjury because: the courtroom deputy was not authorized to take
oaths; the corroborating witnesses were not credible; a conspiracy or some
impropriety led to a minute and a half of the recording of his arraignment
hearing being inaudible; and questions on the CJA financial affidavit were
impermissibly vague.
When reviewing the sufficiency of evidence, “[w]e must credit every
inference that the jury may have drawn in favor of the government, [and] [t]he
juryʹs verdict must be sustained, if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Finley, 245 F.3d 199, 202‐03 (2d Cir. 2001) (internal citation and quotation marks
omitted, emphasis in original). Where a “defendant [has] failed to renew his
motion for acquittal on that ground at the close of the defense case,” as Jenkins
did here, he “has the burden of persuading a court of appeals on the
insufficiency issue that there has been plain error or manifest injustice.” Id. at
202.
Under 18 U.S.C. § 1621(2), a person commits perjury when “in any
declaration, certificate, verification, or statement under penalty of perjury as
permitted under section 1746 of title 28, United States Code, [he] willfully
subscribes as true any material matter which he does not believe to be true.” In
turn, 28 U.S.C. § 1746 states that:
Wherever, under any law of the United States or under any rule,
regulation, order, or requirement made pursuant to law, any matter
is required or permitted to be supported, evidenced, established, or
proved by the sworn declaration, verification, certificate, statement,
oath, or affidavit, in writing of the person making the same . . . such
matter may, with like force and effect, be supported, evidenced,
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established, or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
. . .
(2) If executed within the United States, its territories, possessions, or
commonwealths: ‘I declare (or certify, verify, or state) under penalty
of perjury that the foregoing is true and correct. Executed on (date).
(Signature).’
Id.
It was established at trial that Jenkins signed a CJA financial affidavit
which used the language of 28 U.S.C. § 1746(2) verbatim; he signed the affidavit
after being cautioned to read it; Judge Baxter found the disclosures on the
affidavit material to assigning Jenkins counsel; and Jenkins told his father via a
prison phone call to move his assets and place accounts in his father’s name.
These facts suffice to support a jury convicting Jenkins for perjury.
All of Jenkins’s arguments to the contrary lack merit. First, whether or
not the courtroom deputy had the authority to administer oaths is irrelevant,
given that the CJA affidavit used the language of 28 U.S.C. § 1746(2).
Second, the questions in the affidavit were not vague. “In evaluating a
defendantʹs challenge to a questionʹs clarity, we need to look at both the
questions posed and the answers given in the context of the testimony as a
whole.” United States v. Markiewicz, 978 F.2d 786, 808 (2d Cir. 1992). “A
question is fundamentally ambiguous when it is not a phrase with a meaning
about which men of ordinary intellect could agree, nor one which could be used
with mutual understanding by a questioner and answerer unless it were defined
at the time it were sought and offered as testimony.” United States v. Lighte,
782 F.2d 367, 375 (2d Cir. 1986) (internal citation and quotation marks omitted).
An individual of ordinary intelligence would not think that a question asking for
information regarding “real estate, stocks, bonds, notes, automobiles, or other
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valuable property” would allow omission of information regarding money
market funds, retirement funds, and checking accounts, or recreational vehicles.
See Joint App’x at 537.
Third, corroboration was not needed to sustain the conviction; still, the
corroborating witnesses provided sufficient detail of their standard practices
during arraignments that the jury could credit their testimony that they asked
Jenkins about his assets. See Fed. R. Evid. 406 (“Evidence of a personʹs habit or
an organizationʹs routine practice may be admitted to prove that on a particular
occasion the person or organization acted in accordance with the habit or routine
practice. The court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.”). Finally, Jenkins provided
no evidence to establish any nefarious motive behind the minute and a half of
inaudible proceedings on the recording of the arraignment. In any event, the
recording of the arraignment was not necessary to sustain a conviction of
perjury.
2. Jenkins contends that under the Sixth Amendment, his perjury
sentence could not be made to run consecutive to his child pornography sentence
absent jury fact‐finding on whether a consecutive or concurrent sentence was
more just. However, the decision whether sentences will run concurrently or
consecutively is not one traditionally left to a jury’s domain, and therefore does
not implicate the Sixth Amendment. See Oregon v. Ice, 555 U.S. 160, 168 (2009)
(“The historical record demonstrates that the jury played no role in the decision
to impose sentences consecutively or concurrently.”). The default under federal
law is for sentences for separate offenses to run consecutively, with no
requirement for any fact finding. See 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.”).
3. Jenkins challenges the sentence for perjury as procedurally and
substantively unreasonable. The procedurally unreasonable contention rests on
the argument that his Fed. R. Crim. P. 29 motion should have been granted, an
argument rejected above. Jenkins also argues that his perjury sentence is
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substantively unreasonable because in his related transportation and possession
of child pornography convictions, we found that a 225‐month sentence was
substantively unreasonable. See United States v. Jenkins, 854 F.3d 181 (2d Cir.
2017). But the perjury conviction is a distinct conviction, and the sentence is
below the Guidelines range sentence for perjury. The perjury sentence is
substantively reasonable.
4. Jenkins also raises a number of arguments pro se in a supplemental
brief: (i) the perjury conviction violated due process; (ii) Judge Baxter’s testimony
violated Fed. R. Evid. 605; (iii) the admission into evidence of taped phone calls
he made from prison to his father was “unethical,” “trolling,” and admitting
them is “plain error;” and (iv) there should be an ethics inquiry into all judges,
prosecutors, and support staff employed in the Northern District of New York in
Syracuse, and the district court judge overseeing his cases should be replaced.
None of these arguments has merit. The inaudible passages of the
arraignment recording did not violate any due process right, because (inter alia)
the recording of Jenkins’ arraignment was not needed to convict him of perjury.
The civil forfeiture order did not freeze all of Jenkins’s accounts, see United
States v. Jenkins, 130 F. Supp. 3d 700, 708 (N.D.N.Y. 2015), and did not deprive
him of his choice of counsel; rather, he was out of funds because he hid his assets
by trying to move them to his father. The perjury indictment was not
impermissibly vague in violation of Fed. R. Crim. P. 7(c): it relies on the language
of the perjury statute, 18 USC § 1621(2). See United States v. Tramunti, 513 F.2d
1087, 1113 (2d Cir. 1975) (“an indictment need do little more than to track the
language of the statute charged and state the time and place (in approximate
terms) of the alleged crime”).
Moving to Jenkins’ evidentiary challenges, we review a district court’s
evidentiary decisions for abuse of discretion. See Boyce v. Soundview Tech.
Group, Inc., 464 F.3d 376, 385 (2d Cir. 2006). First, Judge Baxter, who was a fact
witness as to the arraignment only, did not preside over any of the perjury
prosecution, and therefore did not violate Fed. R. Evid. 605. Second, when (as
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here) a prison facility gives notice to inmates that it is recording their calls
automatically, there is no violation of the inmate’s Fourth Amendment right to
privacy. See United States v. Amen, 831 F.2d 373, 379 (2d Cir. 1987)
(“Appellants’ argument that taping their conversations violated the Fourth
Amendment is also not compelling. As the Supreme Court construes the Fourth
Amendment, prison inmates have no reasonable expectation of privacy.”).
Since Jenkins identifies no error in admitting the calls, other than vague
references that we construe to be tied to privacy concerns, we reject this
argument.
Finally, Jenkins provides no reason why an “ethics investigation” should
be carried out, or for why his case should be assigned to a different district court
judge.
Accordingly, the final judgment and sentence of the district court is hereby
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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