The opinion of the court was delivered by: Charles Siragusa, District Judge
This matter is before the Court on remand from the Second Circuit pursuant to its decision in U.S. v. Jelks, 53 Fed.Appx. 601 (2d Cir. 2003) "for additional fact-finding and reconsideration of whether Le'Tasha Jelks' consent was voluntary." U.S. v. Jelks, 53 Fed. Appx. at 603. Upon such reconsideration, as explained below, this Court finds by a preponderance of evidence, based upon the totality of circumstances, that the consent given by Le'Tasha Jelks ("Ms. Jelks"), the defendant's daughter, was voluntary.
The defendant was convicted after a jury trial of all three counts contained in the indictment filed in this matter, and more specifically of Count 1, being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); Count 2, possessing a firearm that had been illegally altered, in violation of 26 U.S.C. § 5871; and Count 3, possessing a firearm that was not registered to him in the National Firearm Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). This Court sentenced him to terms of 120 months imprisonment on Counts 1 and 3, to run concurrently, and a term of 30 months imprisonment on Count 2, to run consecutively to the other terms; and also ordered that his 150 month term of imprisonment run consecutively to his undischarged state term of imprisonment. On appeal, the defendant contested the Court's determination that his daughter, Ms. Jelks, who rented and lived in the premises in which he resided, voluntarily consented to a search of his room, where the weapon was found. That decision by this Court is the subject of the remand from the Circuit. In its decision, the Circuit Court offered specific direction:
The district court held that "the consent to search
given by Ms. Jelks was voluntarily given and not the
product of duress or coercion." However, the factual
basis for the district court's finding is unclear from
the record, as the court did not discuss the totality
of the circumstances warranting such a finding.
Moreover, at the time of the district court's ruling,
it did not have the benefit of the New York State
Division of Parole, Policy and Procedures Manual,
which governs parole officers' visits to the homes of
parolees. The manual is now part of the record,
pursuant to this Court's remand order of July 30,
Accordingly, we remand this case to the district court for additional fact-finding and reconsideration of whether Le'Tasha Jelks' consent was voluntary. See, e.g., United States v. Mathurin, 148 F.3d 68
(2d Cir. 1998) (per curiam) (remanding case to district court for additional fact-finding without vacating defendant-appellant's conviction). The district court should consider the totality of the circumstances surrounding Ms. Jelks' consent, taking into account whether Mooney's representation of her authority to search Defendant-Appellant's residence was incorrect or misleading and, if so, whether Ms. Jelks' consent was nonetheless voluntary. We express no view on this issue. We note that while Mooney told Ms. Jelks that parole officers could search a parolee's residence "any time [they] felt that there was a need to do so," the parole manual requires that officers have "an articulable reason for conducting the search that is reasonably related to the circumstances of the particular case and rationally related to the officer's duty to supervise the releasee."
The district court should also consider the factors delineated in Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In particular, the district court should consider Le'Tasha Jelks' subjective understanding of the circumstances and of her ability to withhold consent, based upon considerations such as her age and education, as well as the fact that she had given birth four days prior to the search. Moreover, the district court should consider the objective circumstances surrounding the encounter, viz., the fact that three parole officers confronted Ms. Jelks in her home at night, and the parole officers' actions in obtaining Ms. Jelks' consent.
Finally, the district court should consider the significance vel non of the parole manual. We note that whether the search could be justified as a parole search, as well as the district court's finding that Mooney had no reasonable suspicion to believe that Defendant-Appellant was in violation of the terms of his parole, are not on appeal. However, we do not foreclose the district court from reconsidering any issues it deems relevant. U.S. v. Jelks, 53 Fed.Appx. at 602-603.
On April 7, 2003, pursuant to the Circuit's mandate, the Court re-opened the hearing on the issue of Ms. Jelks' consent. The appellate decision allowed the Court to also reconsider its determination that the search of defendant's bedroom was not based upon reasonable suspicion to believe that he was in violation of the terms of his parole. However, the government declined to pursue this theory, as it had originally, and indicated that it was relying solely on Ms. Jelks' consent as the basis for the search and seizure. At the proceeding, Parole Officer Cynthia Mooney ("Mooney") was recalled to the stand.
Additionally, the Court heard testimony from Parole Officer Sheila Tenae ("Tenae") and Ms. Jelks, neither of whom had testified at the original hearing. Moreover, a copy of the "New York State Division of Parole, Policy and Procedures Manual," to which the Circuit Court referred in its decision, was offered and received into evidence without objection (Defense Exhibit C), as was a copy of defendant's "Certificate of Release to Parole Supervision" (Defense Exhibit E).
Based upon the additional proof received at the re-opened hearing, including the Court's evaluation of the credibility of the witnesses, Court makes the following supplemental findings of fact.*fn1
SUPPLEMENTAL FINDINGS OF FACT
In connection with her assignment as the defendant's parole officer, Mooney conducted a community prep visit prior to the defendant's actual release in August of 2000. A community prep visit is a visit to the residence where the parolee proposes to live while on release. In that regard, on July 11, 2000, Mooney went to 17 Second Street, Apartment 1A, in Rochester, New York, where she met with Ms. Jelks. Ms. Jelks herself was nineteen years old at the time of Mooney's visit. She had left school in 1998 after completing ninth grade, and could understand, read, and write English. The residence at 17 Second Street, Apartment 1A was leased to Ms. Jelks. She was responsible for paying the rent, and in that regard had applied for and was receiving rent assistance. Further, she paid the electric and phone bills. During her July 11th visit, Mooney discussed the conditions of the defendant's parole with Ms. Jelks, and informed Ms. Jelks that she would be making periodic visits to her residence. Mooney also explained the parole search policy to Ms. Jelks, indicating, "that if I felt there was a need do so, that I would be coming in to search his property and/or the residence, his room." Hearing Transcript at 21 (Apr. 7, 2003) Ms. Jelks, who was cooperative, friendly, and courteous, said "okay." Hearing Transcript at 21. (Apr. 7, 2003).
Further, Ms. Jelks related to Mooney that she was remaining in the Rochester area solely to provide the defendant with a residence, and that, if he did not do well this time, it would be the "last straw" and she was planning to relocate down south with her mother. As to her discussions with Ms. Jelks, Mooney recorded the following information in the Community Prep Form (Defense Exhibit A) she completed as to her July 11th visit:
Subject to reside with 19 yr old daughter, Letasha
Jelks, who is pregnant, expecting her first child in
October. The subject[']s 14 yr old daughter, Kenisha,
is temporily residing in the home until the completion
of summer school 8/00. Letasha has indicated she is
remaining in the Rochester area solely for the
purposes of providing her father with a residence and
if the subject fails to adjust satisfactory [sic] to
parole, she will relocate down south with her mother.
Ms. Jelks supports herself via her full time
employment at McDonalds on W. Ridge Rd., Rochester
NY. She receives food stamps & medicare [sic] via
DDS. No animals or weapons indicated in the home. Ms.
Jelks reported one prior arrest for disorderly
State of New York — Executive Department — Division of Parole Community Prep (Defense Exhibit A). On July 11, 2000, Mooney also left Ms. Jelks a copy of defendant's "Certificate of Release to Parole Supervision" (Defense Exhibit E). Ms. Jelks read the conditions of release listed on that document, and indicated that she understood all of the conditions of parole and that she had no problem with any of them. Included was the following:
4. I will permit my Parole Officer to visit me at my
residence and/or place of employment and I will permit
the search and inspection of my person, residence, and
property. . . .
Certificate of Release to Parole Supervision (Defense Exhibit E).
Between July 11, 2000, and October 4, 2000, the date the handgun was discovered in the defendant's room, Mooney visited 17 Second Street, Apartment 1A twice. On at least one of those occasions, Ms. Jelks was present. She was friendly and did not object to Mooney visiting the residence. Further, prior to October 4, 2000, Mooney had received four reports from the Rochester Police Department*fn2 relating to the defendant (collectively received as Defense Exhibit B). One dated August 2, 2000, refers to 17 ½ Second Street*fn3 and states:
Above location is reportedly active in drug sales. 2nd
floor and attic apts were recently vacated and
trespassers routinely use the apt to sell out of or
bring girls into for prostitution activities. This
occurs mostly in the evening and early morning hrs.
Spec. attn for 3rd and 1st platoons.
The second, dated August 27, 2000, relates to 17 Second Street and, although none of the three suspects referenced is the defendant, nonetheless indicates:
Neighbors called regarding an ongoing problem with
(S*fn41, S2, S3) selling drugs in front of
location. Neighbors say (S)'s sell right out in front of the
house. Unknown if (S)'s use a stash inside or
outside, one was not located. Record check neg. (S)'s
The third, ...