                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 16, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-4119
                                                (D.C. No. 2:15-CR-00072-CW-EJF-1)
RICHARD JENKS, JR.,                                           (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

      A jury convicted Richard Jenks Jr. of multiple counts of sexually abusing his

minor stepdaughter. Jenks now appeals his conviction and sentence. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      After marrying Jenks, a member of the Ute Tribe, Elizabeth Dini sent her

daughter, D.W., to live with her maternal grandparents. At 8 years old, D.W.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
returned to live with her mother and Jenks. By that time, the couple had several

children in common.

      Just before D.W. turned 12, Jenks propositioned her for oral sex in exchange

for an iPod. Over the next five years, the frequency and content of Jenks’ sexual

abuse escalated to include anal and vaginal sex, often in exchange for gifts. D.W.

eventually reported the abuse to her mother, who notified the authorities.

      Jenks was tried on one count of aggravated sexual abuse of a child within

Indian Country in violation of 18 U.S.C. §§ 1153(a), 2241(c), and two counts of

sexual abuse of a minor within Indian Country in violation of 18 U.S.C. §§ 1153(a),

2243(a). At trial, the defense attacked the government’s evidence by questioning its

investigative and testing methods. In response, the district judge submitted the

following instruction to the jury:

      You have heard some evidence about searches conducted by law
      enforcement officers in connection with this case. The lawfulness or
      legality of a search conducted by law enforcement is a matter for the
      court and is not a factor that should in any way enter your deliberations.
      All of the evidence recovered in this case was collected pursuant to a
      lawful search.

      You have also heard testimony as to the manner in which the
      government conducted its investigation in this case including certain
      investigative methods or techniques that were used and certain
      investigative methods or techniques that were not used. In attempting to
      prove its case, the government is under no obligation to use all of the
      investigative methods that are available to it or use any particular
      method. The question is whether the evidence presented is sufficient to
      convince you beyond a reasonable doubt of the defendant’s guilt.

Jenks objected to this instruction, arguing that it “relieve[d] the government of [its]

burden” and “negate[d] a defensive argument of reasonable doubt because

                                            2
technique[s] were not used.” He proposed adding a final line to the instruction:

“However, if the investigative methods, equipment, or techniques that were used or

not used leave you with a reasonable doubt as to the guilt or innocence of the

defendant, then you must find him not guilty of the charge(s).” The district court

overruled the objection and gave the instruction reproduced above. Defense counsel

nevertheless addressed the government’s investigative techniques and methods in his

closing argument before the jury.

      The jury returned a guilty verdict on all three counts. The district court

sentenced Jenks to the statutory-minimum sentence of 30 years’ imprisonment,

followed by a lifetime of supervised release. In conjunction with the supervised

release, the court imposed the following restrictions:

      The defendant is restricted from contact with individuals under the age
      of 18 without adult supervision except as approved by the probation
      office. The defendant shall abide by the following occupational
      restrictions: Any employment shall be approved by the probation office.
      If third-party risks are identified, the probation office is authorized to
      inform the defendant’s employer of his status.1

Jenks timely appealed.

                                           II

      Jenks first challenges the district court’s investigative-techniques jury

instruction. He argues that, by prefacing its investigative-techniques instruction with

a statement that all searches were lawful and all evidence lawfully obtained, the court



      1
          For convenience, we refer to the first condition as the “associational
restriction” and the second set of conditions as the “occupational restrictions.”
                                           3
accorded too much deference to the government, inhibiting the jury’s ability to

consider law enforcement neglect.

                                   Jury Instruction

      “We review a district court’s decision on whether to give a particular jury

instruction for abuse of discretion,” United States v. Sorensen, 801 F.3d 1217, 1228

(10th Cir. 2015) (quotation omitted), but “[w]e review de novo whether jury

instructions, as a whole, correctly state the law and provide the jury with an

understanding of the issues,” United States v. Little, 829 F.3d 1177, 1181 (10th Cir.

2016). We will reverse only when we have “substantial doubt that the jury was fairly

guided.” United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994) (quotation

omitted).

      Jenks concedes that we have previously affirmed some of the language

included in the district court’s jury instructions. In United States v. Johnson, 479 F.

App’x 811 (10th Cir. 2012) (unpublished), for example, we held that the following

instruction accurately stated the law and “did not prevent the jury from considering

the extent of the government’s investigation”:

      You have heard testimony as to the manner in which the government
      conducted its investigation in this case including certain investigative
      methods or techniques that were used and certain investigative methods
      or techniques that were not used. In attempting to prove its case, the
      government is under no obligation to use all of the investigative
      methods that are available to it or use any particular method. The
      question is whether the evidence presented is sufficient to convince you
      beyond a reasonable doubt of the defendant’s guilt.




                                           4
Id. at 817. The difference in this case, Jenks contends, is that this language was

preceded by an additional instruction, which suggested that “the actions of law

enforcement officers were correct and lawful,” thus misleading the jury as to its

ability to “consider[] any police neglect or failure.”

      But Jenks’ argument exaggerates the nature of the district court’s instruction.

The instruction did not “bless[] the actions of law enforcement” or direct the jury to

“wholly disregard . . . inadequacies” in the investigation; it merely informed the jury

that the lawfulness of a search is a matter for the court and that the government may

choose its investigative techniques. This is an accurate statement of the law. See

United States v. Morgan, 855 F.3d 1122, 1125 (10th Cir. 2017) (“The ultimate

determination of the reasonableness of a search and seizure under the Fourth

Amendment is a question of law . . . .”). Although Jenks nevertheless contends that

the instruction was misleading when considered as a whole, we are not persuaded that

the confluence of these independently correct statements of law misled the jury as to

“the relevant standards and factual issues in the case.” United States v. Alexander,

817 F.3d 1205, 1210 (10th Cir. 2016). Accordingly, we detect no abuse of discretion

in the district court’s decision to give the investigative-techniques instruction.

                            Supervised Release Conditions

      Jenks next argues that the district court erred in imposing the associational and

occupational conditions on his supervised release because the conditions improperly

delegate to the probation office the judicial authority to impose punishment. He also

argues that the district court erred in failing to support the occupational condition of

                                            5
supervised release with required fact-finding. Because he did not raise these

objections in the district court, we review the release conditions for plain error.

“Under this demanding standard, he must demonstrate: (1) an error, (2) that is plain,

which means clear or obvious under current law, and (3) that affects substantial

rights.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012) (quotation

omitted). If he meets these criteria, this court may, in its discretion, reverse the error

if “it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir.

2014) (quotation omitted). When the alleged error is not constitutional, “we will

only exercise our discretion when an error is particularly egregious and the failure to

remand for correction would produce a miscarriage of justice.” United States v.

Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005) (quotations omitted). When the

alleged error is constitutional, we employ a “relaxed standard,” “not requir[ing] the

exceptional showing required to remand a case of non-constitutional error.” United

States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005).

                               1. Associational Condition

       Jenks argues that the supervised release condition restricting his contact with

minor children without adult supervision is an improper delegation of judicial

authority because the probation office is left to approve all aspects of the adult-

supervised contact. “It is well established that probation officers have broad

authority to advise and supervise probationers,” but “Article III prohibits a judge

from delegating the duty of imposing the defendant’s punishment to the probation

                                              6
officer.” United States v. Mike, 632 F.3d 686, 695 (10th Cir. 2011) (alteration and

quotation omitted). Delegations of “ministerial acts or support services related to the

punishment imposed . . . are permissible,” while “those that allow the officer to

decide the nature or extent of the defendant’s punishment” are not. Id. “This inquiry

focuses on the liberty interest affected by the probation officer’s discretion.” United

States v. Bear, 769 F.3d 1221, 1230 (10th Cir. 2014). “Conditions that touch on

significant liberty interests are qualitatively different from those that do not.” Id.

(quotation omitted).

       We conclude that the associational supervised release condition was not plain

error, because it is not plain or obvious that the condition affects a significant liberty

interest. Jenks argues that it does because it could prohibit all contact with children,

including family members. He does not, however, cite any authority supporting the

idea that he has a significant liberty interest in associating with any minor child to

whom he is related, regardless of custodial status or affinity. Though Mr. Jenks

might be able to assert a significant liberty interest in the care, custody, and control

of his own or other children with whom he has a custodial relationship, see Troxel v.

Granville, 530 U.S. 57, 65-66 (2000), any such relationship after his 30-year prison

sentence ends is very unlikely.

       It is possible that Jenks may have minor-child relatives (like grandchildren)

when he begins his term of supervised release, but it is not clear that a non-custodial

relationship with a minor relative entails a significant liberty interest. See United

States v. White, 782 F.3d 1118, 1140-41 (10th Cir. 2015) (discussing in dicta the lack

                                            7
of authority indicating a significant liberty interest in a non-custodial relationship

with a minor-child relative). Jenks cites no authority for the proposition that he has a

significant liberty interest in familial association with children with whom he has no

custodial relationship. This lack of authority precludes a finding of plain error.

Because an improper delegation exists only where a significant liberty interest is

affected by the delegation, and because it is not plain or obvious that Mr. Jenks has a

significant liberty interest in a non-custodial relationship with any as-yet-to-be-born

minor child relative, it was not plain error for the district court to impose this

particular associational condition under the facts of this case.

                              2. Occupational Condition

       The government concedes both that the district court obviously erred in

assessing the occupational restrictions without retaining ultimate authority over the

conditions and that it was obvious error to impose the occupational restrictions

without factual findings. It argues, however, that Mr. Jenks has not shown his

substantial rights were affected by these errors and that this court should decline to

exercise its discretion to correct the errors.

       In imposing conditions of supervised release under 18 U.S.C. § 3563(b)(5),

district courts may require that a defendant “refrain . . . from engaging in a specified

occupation, business, or profession bearing a reasonably direct relationship to the

conduct constituting the offense, or engage in such a specified occupation, business,

or profession only to a stated degree or under stated circumstances.” And U.S.S.G.



                                             8
§ 5F1.5(a) states that, before imposing such an occupational restriction, the district

court must first determine that:

      (1) a reasonably direct relationship existed between the defendant’s
          occupation, business, or profession and the conduct relevant to the
          offense of conviction; and

      (2) imposition of such a restriction is reasonably necessary to protect
          the public because there is reason to believe that, absent such
          restriction, the defendant will continue to engage in unlawful
          conduct similar to that for which the defendant was convicted.

      To show an effect on his substantial rights, Mr. Jenks “must show a reasonable

probability that, but for the error claimed, the result of the proceedings would have

been different.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc) (quotation omitted). Mr. Jenks maintains that “the result of his

sentencing necessarily would have been different if the court had not granted judicial

authority to the probation office.” “That alone,” he contends, “shows a reasonable

probability of a different result.” “Under plain error review, we may vacate special

conditions of supervised release only if the record reveals no basis for the conditions.

If the record reveals a basis, there is no reasonable probability that but for the error

the defendant’s sentence would be different and thus the proceeding’s fairness was

not impacted.” United States v. Barela, 797 F.3d 1186, 1192 (10th Cir. 2015).

      The clear language of § 3563(b)(5) and the Guidelines requires a “reasonably

direct relationship” between the occupational restriction and the conduct relevant to

the offense of conviction. United States v. Erwin, 299 F.3d 1230, 1232 (10th Cir.

2002); see also United States v. Wittig, 528 F.3d 1280, 1288 (10th Cir. 2008)


                                            9
(discussing the necessary conditions to support occupational restrictions). In this

case, the occupational restrictions required Jenks’ probation officer to approve any

employment and authorized the officer to disclose his status to an employer if the

officer identified “third-party risks.” Neither the district court nor the probation

office’s presentence investigation report specified a reason for imposing these

restrictions.

       The government argues that Jenks’ position on the tribe’s business committee

was directly related to the conduct of his offense, because he instructed D.W. to say

the rumors of his conduct were politically motivated. Despite the district court’s

failure to make the necessary factual findings, this direct relationship remains fairly

clear. Still, direct relationship is only half of the inquiry. The Guidelines also

required the district court to determine that the occupational restriction was

“reasonably necessary to protect the public because [otherwise] the defendant will

continue to engage in unlawful conduct similar to that for which the defendant was

convicted.” U.S.S.G. § 5F1.5(a)(2). In other words, there must be something in the

record to justify the probation office’s authority to approve not only future political

office Jenks may hold, but any job he may hold.

       On this second prong, the occupational restrictions are entirely too broad to

prevent Jenks from engaging in similar unlawful conduct, because they require him

to get approval to engage in any work, even that which would not provide an

opportunity for him to engage in similar unlawful conduct. Thus, because “the



                                           10
record reveals no basis” for the occupational restrictions, Jenks has established a

violation of his substantial rights. Barela, 797 F.3d at 1192.

       The imposition of special conditions of supervised release without the required

findings affects “the fairness, integrity, or public reputation of the proceedings

because these conditions were likely more severe than the ones the district court

would have imposed had it fulfilled its obligation to explain its reasoning for

imposing any special conditions.” United States v. Burns, 775 F.3d 1221, 1225 (10th

Cir. 2014) (quotation omitted). We therefore reverse.

                                            III

       For the foregoing reasons, we conclude that the district court properly

instructed the jury, that the district court’s delegation to the probation office in the

associational condition was not plain error, and that there was plain error both in the

imposition of the occupational condition without the required factual findings and in

delegation with regard to the occupational restrictions. As a result, we affirm both

the conviction and the sentence with regard to the associational condition on

supervised release. We vacate the sentence with regard to the occupational condition

on supervised released and remand for the district court to make factual findings and

conduct resentencing consistent with this order and judgment.


                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge


                                            11
United States v. Jenks, No. 16-4119
HOLMES, J., concurring:

       I join the majority’s order and judgment in full, except for its disposition of the

jury-instruction issue. There, I conclude that, even if the district court committed

instructional error, that error was harmless on the facts of this case.




                                              12
