United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray, United States Magistrate Judge
Kenneth Jenks was allowed to file an out-of-time motion to
suppress statements he made to law enforcement. Doc. 656.
Defense counsel has informed the Court that he wishes to have
the motion resolved on the briefs and that neither oral
argument nor an evidentiary hearing are necessary.
See doc. 662. For the reasons explained below,
defendant's motion should be denied.
brief succinctly summarizes the issue presented as:
“whether the defendant's Sixth Amendment right to
counsel was violated when [f]ederal investigators elicited a
confession 49 minutes prior to his arraignment but 10 days
after [the arraignment] of his codefendants.” Doc. 652
at 1. The Government, generally, does not dispute the facts
presented in defendant's brief,  so the Court will rely on
its recitation. Jenks was indicted on various drug charges on
November 8, 2018. Id. at 2-3. He was scheduled to be
arraigned, and several of his co-defendants were arraigned,
on November 16, 2018. Id. at 3. Jenks was not
arraigned until November 26, 2018. Id. Shortly
before his arraignment, he made incriminating statements to
investigators. Id.; see also doc. 652-1
(Investigator's report, redacted).
argues that his right to counsel during questioning, afforded
by the Constitution's Sixth Amendment, was violated when
he was questioned without his attorney and before his
arraignment. Doc. 652 at 4. Relying principally on
Missouri v. Frye, Jenks argues that his right to
counsel had attached upon his indictment. See Id. at
4-5 (citing Missouri v. Frye, 566 U.S. 134 (2012)).
He is certainly correct that a Sixth-Amendment right to
counsel exists during “postindictment
interrogations.” Missouri, 566 U.S. at 140
(explaining that “[i]t is well settled that the right
to the effective assistance of counsel applies to certain . .
. ‘critical' stages of . . . criminal proceedings,
” including “postindictment interrogations”
(citations omitted)). The existence of Jenks' right to
counsel at the time he made the incriminating statements does
not, however, end the inquiry.
motion is ambiguous about the immediate circumstances of his
statements. He concedes that he “confessed after he
ostensibly waived his Sixth Amendment right to counsel,
” but he is not explicit on the facts suggesting such a
waiver. See doc. 652 at 5. The nature of the
“ostensible” waiver is indicated by his
contention that “a waiver under Miranda is
insufficient for an offense-specific confession to be
admissible under these facts.” Id. Although,
Jenks' presentation of the issue is not crystal clear,
the Court infers that he does not contest the
Government's contention that the incriminating statements
were made during a “mirandized custodial
interview.” Doc. 655 at 4. The more specific question
posed by Jenks' motion, then, is whether recitation of
his Miranda rights, and his uncoerced statement
despite that recitation, amounts to an effective waiver of
his right to counsel.
argues, without any citation to any evidence, that he
was not aware of his Sixth Amendment right to counsel. Nor
was he aware that he would confer with the attorney appointed
to represent him in less than one hour. No rational actor
would confess or otherwise incriminate himself under these
Doc. 652 at 6 (emphasis added). The most charitable
construction of Jenks' contention is that any apparent
waiver of his rights was not knowing or voluntary because,
under the circumstances, such a waiver was irrational.
Without acceding to defendant's invitation to
psychological speculation, a defendant who concedes that he
was informed of his rights, and who does not allege any fact
even suggesting coercive pressure, has waived those rights.
Whether that waiver appears “rational” to
subsequent scrutiny has no bearing on the question at all.
Supreme Court confronted an argument virtually identical to
Jenks' in Paterson v. Illinois, which the
Government cites. See doc. 655 at 4-5
(citing 487 U.S. 285 (1988)). There, the court
considered, and rejected, the argument that “the
warnings he received, while adequate for the purposes of
protecting his Fifth Amendment rights as guaranteed
by Miranda, did not adequately inform him of his
Sixth Amendment right to counsel.”
Patterson, 487 U.S. at 289. As the Court explained,
[i]f an accused ‘knowingly and intelligently'
[elects to face law enforcement questioning without the aid
of counsel], we see no reason why the uncounseled statements
he then makes must be excluded at his trial.”
Id. at 291. The Court continued:
“‘Indeed, it seems self-evident that one
who is told he' has such rights to counsel [by recitation
of Miranda warnings] ‘is in a curious posture
to later complain' that his waiver of those rights was
unknowing.” Id. at 293 (quoting United
States v. Washington, 431 U.S. 181, 188 (1977))
(emphasis added). If law enforcement provides
Miranda warnings, and the recipient
“nonetheless lacked ‘a full and complete
appreciation of all of the consequences flowing' from his
waiver, it does not defeat the [Government's] showing
that the information it provided to him satisfied the
constitutional minimum.” Id. at 294. The Court
concluded, “[s]o long as the accused is made aware of
the ‘dangers and disadvantages of
self-representation' during postindictment questioning,
by the use of the Miranda warnings, his waiver of
his Sixth Amendment right to counsel at such questioning is
‘knowing and intelligent.'” Id. at
299. A clearer (and more authoritative) repudiation of
Jenks' argument is difficult to conceive.
implicit argument that courts are required (or, indeed, even
authorized) to engage in ex post facto evaluation of
the “rationality” of a defendant's conduct is
belied by Colorado v. Connelly, 479 U.S. 157 (1986).
The Connelly court was confronted by an apparently
voluntary, but utterly irrational, confession. Id.
at 160. Indeed, Connelly presented affirmative evidence
supporting his contention that his confession was motivated
by his mental illness-a delusion that he was following
“the ‘voice of God.'” Id. at
161. Despite that evidence, the Court concluded “[o]nly
if we were to establish a brand new constitutional right-the
right of a criminal defendant to confess to his crime only
when totally rational and properly motivated-could [the
suppression] claim be sustained.” Id. at 166.
This it declined to do. Id. at 167. This Court is no
more inclined, and certainly no more empowered, to create
such a right.
Jenks' motion to suppress the statements he made to law
enforcement prior to his arraignment should be
DENIED. Doc. 652. Given Jenks'
concession, albeit implicit, that he was mirandized, and
absent any indication that he failed to hear and understand
the recitation of his rights, and any indication that his
waiver of those rights-including his right to counsel-was the
result of coercion, there is no basis to suppress
report and recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 Fed.Appx. 787, 790 (11th Cir. 2016);
Mitchell v. United States, 612 Fed.Appx. 542, 545
(11th Cir. 2015).