Petition for Writ of Certiorari — Karteu Omar Jenkins, Petitioner v. United States

APPENDIX A

USCA11 Case: 21-10705

Date Filed: 08/29/2022

Page: 1 of 4

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No. 21-10705

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KARTEU OMAR JENKINS,

a.k.a. Yay,

EUGENE ALLEN,

a.k.a Poncho,

a.LaJig,

Defendants-Appellants.

USCA11 Case: 21-10705

2

Date Filed: 08/29/2022

Page: 2 of 4

Opinion of the Court

21-10705

Appeals from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 4:17-cr-00208-RSB-CLR-3

Before Wilson, Branch, and Lagoa, Circuit Judges.

PER CURIAM:

We have considered all the arguments raised on appeal by

Defendants-Appellants Karteu Omar Jenkins and Eugene Allen, in­

cluding that:

I. , The Defendants had standing to challenge wiretap ev­

idence used against them at trial, and the district court erred in

denying die Defendants’ motions to suppress that evidence.

II.

The district court abused its discretion in denyingJen­

kins’s motions for new counsel.

III.

The district court erred in admitting evidence seized

during Jenkins's arrest.

IV. The district court erred in denying Jenkins’s motion

for judgment of acquittal.

V.

The district court violated Jenkins’s constitutional

rights by constructively amending his indictment.

VI. The district court incorrecdy calculated Jenkins’s sen­

tencing guidelines range, applied erroneous sentencing

USCA11 Case: 21-10705

Date Filed: 08/29/2022

Opinion of the Court

4

Page: 4 of 4

21-10705

admitting evidence of cocaine seized from Jenkins during his arrest,

that error would be harmless. There was more than sufficient in­

dependent, admissible evidence on which to convict Jenkins of the

charged offenses. See United States v. Chavez, 204 F.3d 1305,1317

(11th Cir. 2000). The district court also correctly denied Jenkins's

motion for judgment of acquittal. Further, the district court did

not violate Jenkins's constitutional rights by constructively amend­

ing Jenkins's indictment. To be sure, the drug quantity specified in

the jury instructions was different than the quantity specified in the

indictment, but the change did not constructively amend the in­

dictment because drug quantity was not an essential element of the

charged offense. See United States v. Cabrera-Beltrah, 660 F.3d

742, 753 (4th Cir. 2011).

Likewise, as to the Defendants' sentencing arguments, we

find no reversible error.

We thus affirm the Defendants' convictions and sentences.

AFFIRMED.

APPENDIX B

\

Case 4:17-cr-00208-RSB-CLR Document 591 Filed 05/28/19 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR,. (

THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Pi! 12’ ?,\

r f

UNITED STATES OF AMERICA

C.- GA.

)

CASE NO. CR417-208

v.

)

KARTEU OMAR JENKINS,

)

)

)

Defendant.

ORDER

Before

the

Recommendation

590) .

(Doc.

In

Court

is

the

Magistrate

Judge's

Report

and

(Doc.

588),

to which objections have been filed

the

report

and

recommendation,

the Magistrate

Judge recommends denying Defendant Jenkins's request to suppress

certain intercepted communications.

review of the record,

(Doc. 588.) After a careful

the Court finds that Defendant Jenkins's

objections are meritless and concurs with the conclusions of the

report

and

recommendation,

Defendant

Jenkins

raises

the

same

/

arguments in his objections that were fully considered by the

Magistrate Judge in the report and recommendation. Accordingly,

the report and recommendation is ADOPTED as the Court's opinion

in this case and

Defendant Jenkins's Motion to Supress

(Doc.

339) is DENIED.

SO ORDERED this

day of May 2019.

WILLIAM T. MOORE, 3W.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

i-t

Case 4:17-cr-00208-RSB-CLR Document 546 Filed 01/10/19 Page 1 of 3

UNITED STATES DISTRICT COURT

CQUft

"DIV.

SOUTHERN DISTRICT OF GEORGIA

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SAVANNAH DIVISION

UNITED STATES OF AMERICA,

)

)

v.

)

CR417-208

)

KARTEU OMAR JENKINS,

)

)

Defendants.

)

ORDER

Defendant Karteu Jenkins has raised concerns about the

appropriateness of the representation he is receiving from appointed

counsel, William Turner. See doc. 533. The Court held a hearing on

Jenkins’ motion for the appointment of new counsel on January 10,

2019. At the hearing, the Court heard from Special Assistant United

States Attorney Abrams. After Abrams discussed his observations of

Turner’s performance in this case, the Government was excused, and the

Court discussed Jenkins’ reservations.

Although the United States Constitution guarantees Defendant the

right to counsel, it does not afford him an unqualified right to counsel of

his choice. See United States v. Garey, 540 F.3d 1253, 1263 (11th Cir.

, 2008); see also Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985)

6-z

Case 4:17-cr-00208-RSB-CLR Document 546 Filed 01/10/19 Page 2 of 3

(an indigent criminal defendant “does not have the right to have a

particular lawyer appointed to represent him, nor to demand a different

appointed lawyer except for good cause.”).

“Good cause” to appoint

substitute counsel “in this context means a fundamental problem, such

as a conflict of interest, a complete breakdown in communication or an

irreconcilable conflict which leads to an apparently unjust verdict.”

Garey, 540 F.3d at 1263.

The Court is satisfied that there is no adequate cause to appoint

substitute counsel in this case. First, SAUSA Abrams expressed his

opinion, based on his considerable experience as a criminal prosecutor,

that Turner’s performance was not deficient; he was able to easily

contact Turner, and during their interactions Turner always seemed to

him to have an appropriate mastery of the facts. The Court was also

satisfied, after its ex parte discussion with Jenkins and Turner, that

Turner will be able to address Jenkins’ concerns.

During this

interaction, there was no indication of the sort of “fundamental”

breakdown of the attorney-client relationship that would require

appointment of new counsel.

2

Case 4:17-cr-00208-RSB-CLR Document 546 Filed 01/10/19 Page 3 of 3

Accordingly, Jenkins’ motion for the appointment of new counsel is

DENIED. Doc.533.

SO ORDERED, this /AiySav of January, 2019.

Cnfistopher L. Ra/7

\

United States Magistrate Judge

Southern District of Georgia

3

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•

Case 4:17-cr-00208-RSB-CLR Document 595 Filed 06/07/19 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF AMERICA,

)

)

v.

)

CR417-208

)

KARTEU OMAR JENKINS,

)

)

Defendant.

)

ORDER

Defendant Karteu Jenkins seeks to replace his court-appointed

attorney, Joseph Turner. Doc. 592. On June 6, 2019, the Court held a

hearing on Jenkins’ motion. For the reasons explained below, the Court

finds no good cause to replace Mr. Turner. See, e.g., Thomas v. Wainright,

767 F.2d 738, 742 (11th Cir. 1985) (“An indigent criminal defendant has

an absolute right to be represented by counsel, but he does not have a

right to have a particular lawyer represent him, [cit], nor to demand a

different lawyer except for good cause.” (citations omitted)). Jenkins’

motion raises several concerns about the quality of the representation he

is receiving. Although the Court is confident, after appropriate inquiry,

that the representation Jenkins’ is receiving is adequate, some discussion

of the principles involved is warranted.

&-zh

..

Case 4:17-cr-00208-RSB-CLR Document 595 Filed 06/07/19 Page 2 of 5

Jenkins is concerned about counsel’s accessibility. Mr. Turner and

Jenkins agree that there has been some communication, albeit

occasionally limited by the circumstances of Jenkins’ incarceration.

Turner has visited the jail several times. During one of those visits,

Turner provided Jenkins with a complete copy of the case file. The

Government also represented that it had been in contact with Mr. Turner

concerning the ongoing litigation as well as negotiation of a possible plea.

Jenkins was particularly concerned that Mr. Turner was not fully

accessible to his family and friends. Turner responded that he has been

as forthcoming and communicative with those individuals as possible,

consistent with his obligation to maintain his client’s confidentiality.

It is a cornerstone of the attorney-client relationship in the

American system that “[a] lawyer shall maintain in confidence all

information gained in the professional relationship with a client,” with

some limited exceptions.

Ga. R. of Prof. Conduct 1.6(a).

The

confidentiality of such information is significantly risked by any

involvement of a third party, i.e., anyone other than the attorney and his

client. See, e.g., McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 504

(2002) (stating the general rule that the attorney-client privilege is

2

.• A ■'V-w

Case 4:17-cr-00208-RSB-CLR Document 595 Filed 06/07/19 Page 3 of 5

“readily waived by disclosure to a third party.”)- Given that risk and the

importance of the obligation at stake, Turner’s reticence to involve third

parties in the conduct of his representation does not call his competence

into question.

On the contrary, it is an indication of his prudent

consideration of Jenkins’ interest in these proceedings.

Jenkins is also concerned that Mr. Turner is not filing motions that

Jenkins believes are warranted.

At the hearing, the Court briefly

explained to Jenkins that Turner, in addition to his obligations to provide

effective representation, has an obligation to the Court not to pursue

motions that he deems meritless. Jenkins expressed some discomfort

with that explanation, but the legal principle is clear and wellestablished. As this Court has previously explained:

An attorney does not serve as a mere mouthpiece or alter ego

for his client, obligated to urge any motion or argument that

his client wishes him to file. Thomas v. Tenneco Packaging

Co., 293 F.3d 1306,1337 (11th Cir. 2002) (“An attorney should

not be an unreflecting conduit through which the opinions and

desires of a client or witness are permitted to flow

unchecked.”). Rather, an attorney has a duty to exercise his

independent professional judgment and to file only those

motions or raise only those claims that have potential merit.

Id.; Welch v. Artus, 2007 WL 949652, at * 17 (W.D.N.Y. March

29, 2007). Further, an attorney must adhere to the ethical

standards of the profession, which preclude an attorney from

making “a false statement of material fact or law” to a Court

or other tribunal, Rule 3.3, Georgia Rules of Professional

3

, w

Case 4:17-cr-00208-RSB-CLR Document 595 Filed 06/07/19 Page 4 of 5

Conduct, or from advancing an unwarranted claim or defense.

Georgia Rule 3.1. Thus, if a client insists that an attorney file

a motion or take a position that the attorney does not

personally believe to have any factual or legal merit, “the

attorney must stand his . . . ground and refuse to act in a

manner that flies in the face of the relevant ethical rules.”

Thomas, 293 F.3d at 1327-28. “Given this duty, it follows that

an attorney cannot ‘file first and think later,’ . . . thereby

neglecting to employ his or her independent professional

judgment to consider the plausibility and the appropriateness

of what is asserted in the filed document.” Thomas, 293 F.3d

1327 (citation omitted).

United States v. Scott, 2007 WL 1101241 at * 1 (S.D. Ga. April 11,

2007).

Again, far from casting doubt upon the quality of his

representation, his exercise of independent professional judgment

is positive evidence of it.

Mr. Turner is an experienced criminal litigator and his

performance in this case, based upon the Government’s assessment,

review of the motions he has filed, and his performance in hearings,

provide not a scintilla of doubt of the adequacy of his

representation. Jenkins’ concerns are understandable, given the

gravity of his situation, but they do not rise to the level of “good

cause” for replacing Turner as his appointed counsel. Accordingly,

his motion is DENIED. Doc. 592.

4

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Case 4:17-cr-00208-RSB-CLR Document 595 Filed 06/07/19 Page 5 of 5

SO ORDERED, this 7th day of June, 2019.

Christopher L. Ray

ij

United States Magistrate Judge

Southern District of Georgia

5

y

Case 4:17-cr-00208-RSB-CLR Document 749 Filed 02/24/20 Page 1 of 3

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF AMERICA,

)

)

)

v.

CR417-208

)

KARTEAU OMAR JENKINS,

)

)

Defendant.

)

ORDER

Defendant Karteau Jenkins has moved to have substitute counsel1

appointed to represent him in the sentencing phase of his case. See doc.

705. Jenkins has also filed an objection to the District Judge’s Order

denying several motions he filed pro se after his trial. See doc. 708; doc.

698 (Order). Although that objection was docketed as a motion to proceed

pro se, it is not properly considered here.2 The Court held a hearing on

Jenkins’ motion on February 19, 2020. For the reasons explained below,

it is DENIED. Doc. 705.

1 Jenkins’ motion is captioned as a motion to proceed pro se. See doc. 705. Despite the

caption, the Court confirmed at the hearing that Jenkins did not want to proceed pro

se, but instead wanted substitute counsel appointed. To the extent that the motion

seeks leave to proceed pro se as alternative relief, it is DISMISSED as withdrawn.

2 The Clerk is DIRECTED to correct the docket text to reflect the fact that the

document is an objection, and not a motion.

Case 4:17-cr-00208-RSB-CLR Document 749 Filed 02/24/20 Page 2 of 3

Although the Constitution guarantees criminal defendants a right to

effective representation, the Supreme Court has explained that it does not

guarantee “a ‘meaningful relationship’ between an accused and his

counsel.” Morris v. Slappy, 461 U.S. 1,14 (1983). “A defendant’s general

loss of confidence or trust is not sufficient.” Thomas v. Wainwright, 767

F.2d 738, 742 (11th Cir. 1985) (emphasis added) (citation omitted).

“Although an indigent criminal defendant has a right to be represented

by counsel, he does not have a right... to demand a different appointed

lawyer except for good cause.” United States v. Young, 482 F.2d 993, 995

(5th Cir. 1973); United States v. Quinones, 372 F. App’x 34, 35 (11th Cir.

2010). Good cause for substitution requires a showing that a defendant’s

appointed counsel cannot provide adequate assistance for one of several

reasons, such as a conflict of interest, a complete breakdown in

communication, or an irreconcilable conflict between counsel and his

client. Young, 482 F.2d at 995. A defendant’s subjective dissatisfaction

with counsel’s performance is simply not enough. Cf. United States v.

Cronic, 466 U.S. 648, 657 n. 21 (1984) (noting that a defendant’s

expressions of satisfaction or dissatisfaction with counsel’s performance

are accorded “no weight” in evaluating effectiveness).

2

Case 4:17-cr-00208-RSB-CLR Document 749 Filed 02/24/20 Page 3 of 3

The Court is satisfied that there is no adequate cause to appoint

substitute counsel. Assistant United States Attorney Frank Pennington

expressed his opinion that Turner’s performance, in the pretrial, trial,

and sentencing phases of the case, was not deficient. He and co-counsel

had been able to reliably contact Turner and, during their interactions,

Turner always appeared to have an appropriate mastery of the facts and

law. The ex parte discussion revealed that Jenkins’ complaints arose

almost exclusively from his subjective dissatisfaction with Turner. He

was not able to point to any specific defect in Turner’s performance.

There is simply no indication of a “fundamental” breakdown of the sort

that would warrant appointment of substitute counsel.

Accordingly, Jenkins’ motion for the appointment of substitute

counsel is DENIED. Doc. 705.

SO ORDERED, this 24th day of February, 2020.

Christopher L. Ray

|

United States Magistrate judge

Southern District of Georgia

3

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USCA11 Case: 21-10705

Document: 108-2

Date Filed: 10/21/2022

Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 21-10705-CC

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KARTEU OMAR JENKINS

a.k.a. Yay,

EUGENE ALLEN,

a.k.a Poncho,

a.k.a Jig,

Defendants - Appellants.

Appeal from the United States District Court

for the Southern District of Georgia

a

ON PETITIONfSI FOR REHEARING AND PETITtONfSl FOR REHEARING EN BANC

BEFORE: WILSON, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc. (FRAP 35) The Petition for

Rehearing En Banc is also treated as a Petition for Rehearing before the panel and is DENIED.

(FRAP 35, IOP2)

ORD-42

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