RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Jenkins No. 02-5573 ELECTRONIC CITATION: 2003 FED App. 0361P (6th Cir.) File Name: 03a0361p.06 DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Victor L. Ivy, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS ON BRIEF: M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN FOR THE SIXTH CIRCUIT DISTRICT OF TENNESSEE, Memphis, Tennessee, for _________________ Appellant. Victor L. Ivy, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee. UNITED STATES OF AMERICA , X Plaintiff-Appellee, - _________________ - - No. 02-5573 OPINION v. - _________________ > , RICHARD MILLS, District Judge. Candy Jenkins was CANDY JENKINS, - Defendant-Appellant. - indicted and charged with one count of possession with the intent to distribute fifty (50) grams or more of cocaine base N (“crack”) in violation of 21 U.S.C. § 841(a)(1). Appeal from the United States District Court for the Western District of Tennessee at Jackson. Jenkins pleaded not guilty, was tried by a jury, and found No. 01-10057—James D. Todd, Chief District Judge. guilty.
Argued: September 10, 2003 On April 17, 2002, the district court sentenced her to 121 months of imprisonment, to be followed by five years of Decided and Filed: October 9, 2003 supervised release.
Before: MOORE and GILMAN, Circuit Judges; MILLS, On appeal, Jenkins challenges her conviction upon three District Judge.* grounds and her sentence upon two. Specifically, Jenkins argues that her conviction should be reversed: (1) because the _________________ district court erred in admitting, pursuant to Federal Rule of Evidence 803(6), five United States Postal Service express COUNSEL mail package labels from packages which had been delivered to her home prior to her arrest; (2) because the district court ARGUED: M. Dianne Smothers, OFFICE OF THE erred in admitting, pursuant to Federal Rule of Evidence FEDERAL PUBLIC DEFENDER FOR THE WESTERN 404(b), evidence that she had used crack cocaine in the past; and (3) because the Government failed to present sufficient evidence at trial with which a reasonable jury could find her to be guilty, beyond a reasonable doubt, of the offense * The Hon orable R ichard M ills, United States District Judge for the charged in the Indictment. Central District of Illinois, sitting by designation.
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As for her sentence, Jenkins contends that the district court On August 29, 2001, Andy Gibson, a sergeant with the erred: (1) in denying her a reduction, pursuant to U.S.S.G. Union City Police Department, telephoned Kramer in order to § 3B1.2, in her base offense level for being a minimal or discuss the two express mail packages which had been sent to minor participant; and (2) in denying her request to apply the 813 College Street, Union City, Tennessee. Kramer told safety-valve provision of U.S.S.G. § 5C1.2 and 18 U.S.C. Gibson that he was maintaining a file (as was the Union City § 3553(f)(1) - (5) to her sentence. Post Office) on the packages which were being sent to that address and that, when the next package was sent to that For the reasons set forth below, we REVERSE Jenkins’ address, he would come to Union City in order to inspect the conviction and REMAND with instructions to dismiss the package and decide what to do next. Indictment. On September 25, 2001, Cooley contacted Kramer I. BACKGROUND regarding another express mail package for the 813 College Street address. Kramer instructed Cooley to hold this On August 7, 2001, Mark Cooley, a supervisor at the package (which listed the same return address as the other United States Post Office in Union City, Tennessee, contacted express mail packages) for investigation. Kramer then went United States Postal Inspector Bradley Kramer regarding a to Union City and examined the package. Kramer described suspicious express mail package which was addressed to 813 the package as being “[l]ike one of those poly bags” rather College Street, Union City, Tennessee.1 This address than a cardboard envelope. Based upon the weights of the belonged to Candy Jenkins. Cooley contacted Kramer express mail packages, Kramer initially thought that the because he believed that the express mail package contained packages (including the present one) contained marijuana. illegal drugs. Cooley informed Kramer that he believed that However, based upon his experience, training, and further previous express mail packages delivered to this address also inspection of the current package, Kramer concluded that the contained illegal drugs. Kramer instructed Cooley to deliver package contained crack cocaine. the package, to keep a log of all future express mail packages sent to this address, and to telephone him again about any Accordingly, Gibson and K-9 officer Tac Simmons, along further suspicious express mail packages which were sent to with his drug dog, CiCi, met Kramer at the Union City Post this address. Office. Upon inspection, CiCi alerted on the package by making a pawing motion on it, thereby indicating the On August 11, 2001, Cooley telephoned Kramer and presence of drugs inside. Thereafter, Gibson telephoned other informed him that another suspicious express mail package officers at the Union City Police Department and made had been sent to 813 College Street, Union City, Tennessee. arrangements to conduct a controlled delivery of the package. Kramer instructed Cooley to again deliver the package to that address. This package had the same return address as the Later that same day, Roger Burrus, an employee of the August 7, 2001, package. United States Postal Service, delivered the package to the residence at 813 College Street, Union City, Tennessee. Burrus went to the door and knocked. Candy Jenkins 1 answered the door and signed for the package. Burrus gave The return address listed on the expre ss mail package was 3559 the package to Jenkins and left, and Jenkins returned inside Alicia, Altadena, California, 91001 . It was later d etermined that this the residence. address was a house that had been vacant for two years. No. 02-5573 United States v. Jenkins 5 6 United States v. Jenkins No. 02-5573
At some point later, Jenkins exited her house, and Kramer Probably in May 2001 Carla “Rabbit” Johnson called me and Gibson approached her. The two identified themselves and asked if I could get a package at my house through as law enforcement officers and advised Jenkins of her the U.S. Mail. She said it would be addressed to me. constitutional rights.2 Kramer and Gibson asked for Jenkins’ Packages started to be delivered probably in May, and I consent to search her house, and she consented. Several law signed for them. In May, maybe one, two packages. In enforcement officers then went inside Jenkins’ house and June, two packages, maybe every two to three weeks. found the express mail package unopened and sitting on a Two in July. Two in August. Two in September. The chair in the living room. The officers asked Jenkins what she second one is when the police came to my house. The knew about the package, and she told them that she was only person who came and got the packages from me was receiving it for Sarah Johnson who was out of town. When Brian Ingram. He paid me fifty dollars for each U.S. the officers asked her who that person was, Jenkins replied Mail delivery to my apartment. He never said what was that she really did not know Sarah Johnson very well. in them. I never asked, what was in them. I’ve known Brian maybe for twenty years, he is my friend. On After the law enforcement officers opened the package, and 9/25/01, he came to my apartment two times and asked after they verified that it contained narcotics, Jenkins asked did the package come yet. I said no. I signed for the Kramer and Gibson if she could speak with them in private. package. Brian drove up. I saw him, and he drove off, Once the three had reached a back bedroom, Gibson asked and the police came. I have never opened them. These Jenkins, “Candy, what are you doing here? What is this?” were for Brian. Jenkins replied, “What do you think it is?” Gibson responded, “I know what it is. It’s a delivery of drugs, illegal During the trial, the Government sought to introduce the drugs, and I’m very surprised that you are the one that it’s mailing labels from the express mail packages which had being delivered to.” Jenkins stated, “Yeah.” Jenkins also previously been delivered to Jenkins’ address. Jenkins advised Kramer and Gibson that her explanation of receiving objected to the labels’ admission on two grounds: (1) the the package for Sarah Johnson was not true; rather, Jenkins Government could not offer any proof as to what was inside said that Carla “Rabbit” Johnson had contacted her to see if of the packages and (2) the Government could not lay a she would start accepting packages through the mail and that proper foundation for the labels’ admission. The Government an individual known as Brian Ingram (a/k/a Brian Byars) responded that it could establish that these records were kept would pick up the packages and give her $50.00 per package. in the regular course of business at the Union City Post Office Jenkins denied having knowledge of the contents of the and were, therefore, admissible under the business records package and estimated that she had received two packages per exception to the hearsay rule. The Government asserted that month from May until the present. it could lay a proper foundation for the labels’ admission through Kramer’s testimony. The district court admitted the The law enforcement officers then placed Jenkins under labels into evidence pursuant to the business records arrest and transported her to the Obion County Jail. At the exception to the hearsay rule codified at Federal Rule of jail, Jenkins executed a Rights Waiver and gave the following Evidence Rule 803(6). written statement: In addition to offering testimony regarding the mailing labels, Kramer testified about the conversation which he had 2 Gibson knew Jenkins from prior contacts with her. with Jenkins in her bedroom on September 25, 2001. No. 02-5573 United States v. Jenkins 7 8 United States v. Jenkins No. 02-5573
Specifically, Kramer told the jury that Jenkins had admitted regarding Jenkins’ lack of acceptance of responsibility for her to him that she had smoked crack cocaine in the past and that crime (i.e., his belief that Jenkins had not given truthful she was a current crack cocaine user. Jenkins denied, information regarding her participation in the crime and, however, that Ingram was the source of her crack cocaine; therefore, did not qualify for U.S.S.G. § 5C1.2's safety valve rather, she stated that she obtained her crack cocaine from provision). some guy down the street, although she did not want to reveal who that person was. After considering the arguments and evidence, the district court sustained Jenkins’ objection to the amount of drugs for Jenkins objected to Kramer’s testimony that she had which she was being held responsible as relevant conduct in admitted to him that she had smoked crack cocaine in the past her Presentence Report. Specifically, the district judge held and that she was a current crack cocaine user. Jenkins argued that, although he personally believed that the other express that this testimony constituted a prior bad act which was only mail packages sent to Jenkins contained crack cocaine, there offered to establish her character and propensity to commit was no evidence to substantiate his belief, and there was no the charged crime, and therefore, the evidence was evidence regarding the quantity of drugs contained within inadmissible pursuant to Federal Rule of Evidence 404(b). those packages. Accordingly, the district court held Jenkins accountable only for the amount of drugs found in the express The district court, however, found that Kramer’s testimony mail package delivered to her house on September 25, 2001, was admissible under Rule 404(b) because the Government (i.e., 96.7 grams) and, thus, reduced her base offense level had offered Kramer’s testimony in order to establish Jenkins’ from 36 to 32. knowledge that the express mail package contained crack cocaine, not in order to establish her character and propensity However, the district court denied Jenkins’ request that she to commit the charged offense. The district court gave a receive a two-level reduction in her base offense level, limiting instruction to the jurors which cautioned them that pursuant to U.S.S.G. §3C1.2, for being a minimal or minor the evidence was admissible only “to the extent that you may participant. In denying her request, the district court stated: determine it might be relevant to the issue of knowledge” as to what was in the packages. Now, it’s true that perhaps the receiver of the package is somewhat less culpable than the shipper of the package, On January 15, 2001, the jury found Jenkins guilty of but they’re both necessary to make a package shipment possession with the intent to distribute fifty (50) or more work. grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) as charged in the one count Indictment. If this had occurred one time, perhaps the defendant might have a better argument; but this occurred On April 17, 2002, the district court conducted Jenkins’ repeatedly over some months, and it’s clear that the sentencing hearing. At the hearing, the Government called defendant was an active participant. So the defendant’s Gibson, who read the written statement which Jenkins had request for a reduction in that regard is denied. given to the officers at the Obion County Jail after her arrest and called United States Probation Officer Mark Escue who Finally, because the district court found Jenkins’ adjusted offered testimony regarding Jenkins’ relevant conduct (i.e., offense level to be 32 and her criminal history category to be the other express mail packages which she had received) and I, yielding a sentencing guideline range of 121 to 151 months No. 02-5573 United States v. Jenkins 9 10 United States v. Jenkins No. 02-5573
of imprisonment, the Court held that Jenkins’ request to be he had requested, Jenkins claims that Kramer never indicated sentenced pursuant to the safety valve provision of U.S.S.G. that he had an understanding about the record keeping system § 5C1.2 had become moot: at the Union City Post Office. Without this knowledge, Jenkins claims that Kramer is neither a custodian nor an That makes the argument for the safety valve moot otherwise qualified witness as required by Rule 803(6). because a level 32 and a criminal history of I creates a sentencing range of 121 to 151, the minium of which is The Government argues that Kramer qualifies under Rule still above the ten-year mandatory minimum. So the 803(6) as an other qualified witness, and thus, the district safety valve provision becomes moot. court correctly admitted the labels pursuant to the business records exception to the hearsay rule. The Government The district court went on to state: asserts that it is clear from Kramer’s testimony that he was aware of the record keeping procedures of the United States But in the event it were not moot, the court would Postal Service. Moreover, Kramer testified that he was conclude that the defendant does not qualify for the familiar with these business records based upon his training safety valve because she has not truthfully admitted her and experience. Finally, the Government notes that it was responsibility for this conduct. Kramer who instructed Cooley to maintain the very records in question and advised him on how to maintain the records. Accordingly, the district court sentenced Jenkins to 121 In any event, the Government argues that, if the district court months of imprisonment, to be followed by a five year term erred in admitting this evidence, the admission constitutes of supervised release, for her conviction. On April 22, 2001, harmless error which does not require reversal. Jenkins filed a timely notice of appeal challenging her conviction and sentence. “In reviewing a trial court’s evidentiary determinations, this court reviews de novo the court’s conclusions of law and II. ANALYSIS reviews for clear error the court’s factual determinations that underpin its legal conclusions.” United States v. Salgado, 250 A. MAILING LABELS F.3d 438, 451 (6th Cir. 2001)(citing United States v. Reed, Jenkins argues that the district court erred in admitting into 167 F.3d 984, 987 (6th Cir. 1999). evidence during the trial the mailing labels from the other As this Court has explained: express mail packages which she received at her home. Jenkins asserts that the labels constitute excludable hearsay A business record must satisfy four requirements in order for which no exception applies. Contrary to the district to be admissible under Rule 803(6): court’s finding, Jenkins contends that the Government did not lay a proper foundation for the admission of the labels and (1) it must have been made in the course of a regularly claims that it did not establish that the business records conducted business activity; (2) it must have been kept exception to the hearsay rule applied because Kramer was not in the regular course of that business; (3) the regular an “otherwise qualified witness” under Rule 803(6). practice of that business must have been to have made Although Kramer testified that he was familiar with the fact the memorandum; and (4) the memorandum must have that the Union City Post Office gave him the records which been made by a person with knowledge of the No. 02-5573 United States v. Jenkins 11 12 United States v. Jenkins No. 02-5573
transaction or from information transmitted by a that he was maintaining a file on the suspicious express mail person with knowledge. packages which were being sent to Jenkins’ address which was similar to the file which was being kept at the Union City United States v. Weinstock, 153 F.3d 272, 276 (6th Cir. Post Office. 1998) (quoting Redken Laboratories, Inc. v. Levin, 843 F.2d 226, 229 (6th Cir.), cert. denied, 488 U.S. 852, 109 In order to be considered to be an “otherwise qualified S. Ct. 137, 102 L. Ed.2d 110 (1988)). This information witness” under Rule 803(6), “[a]ll that is required of the must be presented through “the testimony of the witness is that he or she is familiar with the record keeping custodian or other qualified witness[.]” Fed. R. Evid. procedures of the organization.”Dyno Constr. Co. v. McWane, 803(6). Business records meeting these criteria are Inc., 198 F.3d 567, 576 (6th Cir. 1999). Kramer testified that admissible “unless the source of information or the he was familiar with the Union City Post Office’s record method or circumstances of preparation indicate lack of keeping procedures with regard to the express mail package trustworthiness.” Id. labels, and therefore, the district court did not abuse its discretion in admitting the labels pursuant to Rule 803(6). “Rule 803(6) does not require that the custodian personally gather, input, and compile the information B. PRIOR BAD ACTS memorialized in a business record.” Weinstock, 153 F.3d at 276. The custodian of the records need not be in Jenkins next argues that the district court erred in admitting control of or have individual knowledge of the particular evidence, pursuant to Federal Rule of Evidence 404(b), that corporate records, but need only be familiar with the she had previously smoked and was a current user of crack company’s recordkeeping practices. Id. (citing In re cocaine. Jenkins asserts that the only evidence offered that Custodian of Records of Variety Distrib., Inc., 927 F.2d she had smoked crack cocaine in the past was offered through 244, 248 (6th Cir. 1991)). Likewise, “[t]o be an ‘other the testimony of Kramer, and her admission to him was made qualified witness,’ it is not necessary that the person in reference to the fact that she told Kramer that she obtained laying the foundation for the introduction of the business her crack cocaine from someone other than Ingram. Jenkins record have personal knowledge of their preparation.” contends that no logical inference can be drawn from her Dyno Construction Co. v. McWane, Inc., 198 F.3d 567, statements to Kramer that she in any way acknowledged that 575-76 (6th Cir. 1999). she knew that Ingram was a crack cocaine dealer and, therefore, that she could have reasonably known that the Salgado, 250 F.3d at 451-52. packages which she received on his behalf contained crack cocaine. In short, Jenkins asserts that the Government failed In the instant case, the district court correctly found that to prove that the evidence of her personal use of crack cocaine Kramer was an “otherwise qualified witness” under Rule was probative of a material issue other than her character and 803(6). Kramer testified that he was familiar with these propensity to commit the charged crime, and therefore, the labels through his training and experience and that he district court erred in admitting this evidence. commonly dealt with these records. Moreover, Kramer testified that he had instructed Cooley (i.e., the individual The Government argues that the district court did not err in from whom he had requested the production of these labels) admitting this evidence. The Government asserts that, on how to maintain these labels. Finally, Kramer testified because possession with the intent to distribute a controlled No. 02-5573 United States v. Jenkins 13 14 United States v. Jenkins No. 02-5573
substance is a specific intent crime, it was permitted to offer In the present case, there is no doubt that the bad act other acts evidence under Rule 404(b) in order to establish occurred; Jenkins freely admitted that she used crack cocaine. Jenkins’ intent to commit the charged offense. Here, the Thus, the first step in the Rule 404(b) analysis is satisfied. Government claims that the district court correctly admitted the prior bad acts evidence because it was probative of However, the Court finds that the second and third steps of Jenkins’ knowledge of the contents of the express mail the analysis are not satisfied in this case, and therefore, the packages and that the district court mitigated any unfair district court abused its discretion in allowing the prejudicial effect which the evidence might have had against Government to introduce evidence at trial of Jenkins’ prior her by giving a limiting instruction to the jury informing it of crack cocaine usage. the extent to which it should, if at all, consider this evidence. “Evidence of other acts is probative of a material issue “This court reviews a district court’s evidentiary other than character if (1) the evidence is offered for an determinations under Fed. R. Evid. 404(b) for abuse of admissible purpose, (2) the purpose for which the evidence is discretion. A district court is considered to have abused its offered is material or ‘in issue,’ and (3) the evidence is discretion when this court is left with the definite and firm probative with regard to the purpose for which it is offered.” conviction that the district court committed a clear error of Id. at 720 (citing United States v. Johnson, 27 F.3d 1186, judgment in the conclusion it reached upon a weighing of the 1190-91 (6th Cir. 1994). Here, the Government asserts that relevant factors.” United States v. Copeland, 321 F.3d 582, it introduced evidence of Jenkins’ past crack cocaine usage in 595 (6th Cir. 2003)(internal citations and quotations omitted). order to establish her knowledge that the express mail packages which she was receiving on Ingram’s behalf Federal Rule of Evidence 404(b) provides, in relevant part: contained crack cocaine. Because Rule 404(b) explicitly “Evidence of other crimes, wrongs, or acts is not admissible includes “knowledge” as a proper purpose for which other to prove the character of a person in order to show action in acts evidence may be admitted, we find that the evidence was conformity therewith. It may, however, be admissible for offered for an admissible purpose. other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake Furthermore, we find that Jenkins’ knowledge as to the or accident . . . .” Id. This Court has established a three-step contents of the express mail package was “in issue” during process for determining the admissibility of other acts the trial. “[P]rior bad acts are not admissible to prove evidence under Rule 404(b). First, the district court must defendant’s knowledge unless defendant places his mental decide whether there is sufficient evidence that the other act state at issue or his knowledge of the [narcotics are] not in question actually occurred. Second, if so, the district court inferable from proof of possession itself.” United States v. must decide whether the evidence of the other act is probative Jobson, 102 F.3d 214, 221 (6th Cir. 1996); see United States of a material issue other than character. Third, if the evidence v. Lash, 937 F.2d 1077, 1087 (6th Cir. 1991)(holding that is probative of a material issue other than character, the “[t]he district court had broad discretion to admit evidence of district court must decide whether the probative value of the crimes other than those charged or wrongful acts, pursuant to evidence is substantially outweighed by its potential Fed. R. Evid. 404(b), if those other crimes or acts are relevant prejudicial effect. United States v. Haywood, 280 F.3d 715, to intent or knowledge which are elements of the crime 719-20 (6th Cir. 2002). charged.”). No. 02-5573 United States v. Jenkins 15 16 United States v. Jenkins No. 02-5573
The Indictment returned against Jenkins charged her with States v. Feinman, 930 F.2d 495, 499 (6th Cir. knowingly possessing, with the intent to distribute, fifty 1991)(admitting testimony that the defendant was involved in grams or more of cocaine base in violation of 21 U.S.C. prior transportation of marijuana with the same participants § 841(a). Her defense at trial was that she did not know–and and the same mode of operation as charged in the indictment). the Government had failed to prove otherwise–that the express mail package contained crack cocaine. Thus, Jenkins’ Likewise, the Court disagrees with the Government’s knowledge was “in issue” during her trial. theory that Jenkins’ responses to the questions posited by Kramer are probative of her knowledge of the contents of the However, we do not believe that the Government’s express mail package(s). At trial, Kramer offered the evidence regarding Jenkins’ prior crack cocaine usage is following testimony regarding a conversation which he and probative of her knowledge as to the contents of the express Gibson had with Jenkins regarding her crack cocaine usage: mail package, which would, in turn, establish her intentional participation in the distribution of crack cocaine. This Court Q. And what did she tell you? has held that “‘acts related to the personal use of a controlled substance are of a wholly different order than acts involving A. She did admit to us that she did smoke crack the distribution of a controlled substance. One activity cocaine, was a current user of crack cocaine. involves the personal abuse of narcotics, the other the implementation of a commercial activity for profit.’” Q. And did she say anything about whether or not this Haywood, 280 F.3d at 721 (quoting United States v. Ono, 918 Brian was a source of her crack cocaine? F.2d 1462, 1465 (9th Cir. 1990). Thus, Jenkins’ admission that she is a crack cocaine user does not ipso facto lead to the A. We asked her that, and she said no. She got it from conclusion that she was involved in the distribution of crack some guy down the street and didn’t want to reveal cocaine. who that was.
Although the Government cites several cases in its brief in Thus, contrary to the Government’s assertion, Jenkins’ support of its position that the district court correctly admitted response to Kramer’s questioning did not establish her the other acts evidence, those cases are distinguishable in that knowledge of the contents of the express mail package. the pertinent other acts involved in those cases dealt with drug Jenkins did not acknowledge that she knew that Ingram was distribution, not personal use as is the case here. See, e.g., a drug dealer; in fact, her response does not even suggest nor United States v. Myers, 123 F.3d 350, 363 (6th Cir. could one reasonably infer that she knew him to be involved 1997)(admitting the testimony of four different witnesses in the distribution of crack cocaine. Accordingly, we find that concerning prior drug transactions with the defendant in order the district court abused its discretion in admitting into to show his intent to distribute); United States v. Clemis, 11 evidence at trial Jenkins’ admission that she used crack F.3d 597, 601 (6th Cir. 1993)(admitting evidence of a prior cocaine because the evidence was not probative of a material drug transaction identical to the transaction for which the issue at trial other than her character and propensity to defendant was indicted in order to show his knowledge and commit the charged offense. involvement in the drug conspiracy); Johnson, 27 F.3d at We also find that the district court abused its discretion in 1191 (admitting evidence of the defendant’s past drug sales admitting into evidence at trial Jenkins’ admission that she in order to show his intent to distribute cocaine); United No. 02-5573 United States v. Jenkins 17 18 United States v. Jenkins No. 02-5573
used crack cocaine in the past because the probative value of resulting from the needless admission of such evidence.” Id. this evidence is substantially outweighed by the danger of at 724. unfair prejudice. Fed. R. Evid. 403; see Haywood, 280 F.3d at 723 (holding that “[p]robative ‘other acts’ evidence is For these reasons, we conclude that the district court abused nevertheless inadmissible if the value of the evidence is its discretion in admitting into evidence the fact that Jenkins’ substantially outweighed by its potential prejudicial effect.”). had previously smoked crack cocaine.3 We reach this conclusion for three reasons. C. SUFFICIENCY OF THE EVIDENCE First, as was the case in Haywood, the admission by the district court of the fact that Jenkins had previously possessed Finally, Jenkins argues that the Government failed to crack cocaine for personal use present sufficient evidence with which a reasonable jury could have found her to be guilty of the charged offense. “unquestionably [had] a powerful and prejudicial Specifically, Jenkins asserts that the Government failed to impact.” Johnson, 27 F.3d at 1193. By “branding” present substantial evidence that she was aware that the [Jenkins] as a criminal possessing crack cocaine, this express mail package which was sent to her home contained evidence had “the natural tendency to elicit the jury’s crack cocaine. As stated supra, Jenkins contends that her opprobrium for [Jenkins].” United States v. Spikes, 158 statement to Kramer (i.e., that she obtained her crack cocaine F.3d 913, 929 (6th Cir. 1998). The evidence further from someone other than Ingram) was not probative on the invited the jury to conclude that [Jenkins] “is a bad issue of whether she was aware that he was a crack cocaine person . . . and that if [s]he ‘did it [once] [s]he probably dealer and, thus, that the packages which she was receiving did it again.’” Johnson, 27 F.3d at 1193. on his behalf contained crack cocaine. Jenkins claims that the fact that she received money in exchange for receiving an Haywood, 280 F.3d at 723. unopened box at her residence is an insufficient basis upon which to find her guilty of possession with the intent to Second, as will be discussed infra, the evidence proffered distribute crack cocaine. At most, Jenkins argues that the against Jenkins by the Government was weak, especially the Government showed that she may have thought that the evidence presented regarding her alleged knowledge that the express mail packages contained something illegal, but it did express mail packages sent to her contained crack cocaine. In not prove that she knew that the packages contained cocaine fact, the only real evidence offered by the Government in base. order to establish her knowledge came from the contested Rule 404(b) evidence. The Government argues that it presented sufficient evidence at trial in order to support Jenkins’ conviction. The Third, given the substantial prejudice caused by the Government asserts that, during the trial, it offered evidence admission of this other acts evidence, we do not believe that that Jenkins received express mail packages at her home for the district court’s limiting instruction was a sufficient which she signed, and in return, Ingram paid her $50.00 per remedy. “A limiting instruction will minimize to some degree the prejudicial nature of evidence of other criminal acts; it is not, however, a sure-fire panacea for the prejudice 3 W e will discuss, infra, whether the district court’s improper evidentiary ruling requires us to reverse Jenkins’ conviction. No. 02-5573 United States v. Jenkins 19 20 United States v. Jenkins No. 02-5573
package. In addition, Jenkins lied to law enforcement officers sufficient to sustain a conviction and such evidence need not regarding the intended recipient of the package and, then, remove every reasonable hypothesis except that of guilt.’” recanted. When asked by Gibson about the package, Jenkins United States v. Stines, 313 F.3d 912, 919 (6th Cir. responded, “What do you think it is?” Gibson responded, “I 2002)(quoting United States v. Warwick, 167 F.3d 965, 971 know what it is. It is a delivery of drugs, illegal drugs. And (6th Cir. 1999). I am very surprised that you are the one that it is being delivered to.” Jenkins replied, “Yeah.” In the case sub judice, we find that, even when taking all of the evidence in a light most favorable to the Government, the Furthermore, the Government offered: (1) Jenkins written Government did not present sufficient evidence at trial with statement which she made at the Obion County Jail after her which a reasonable jury could have found Jenkins to be guilty arrest, (2) her admission that she was a crack cocaine user, beyond a reasonable doubt of the charged offense. As noted and (3) her statement that she obtained her crack cocaine from supra, the Indictment returned against Jenkins charged her someone other than Ingram. Viewing the evidence in a light with knowingly and intentionally possessing, with the intent most favorable to it, the Government contends that a to distribute, at least fifty grams of crack cocaine in violation reasonable jury could find Jenkins to be guilty, beyond a of 21 U.S.C. § 841(a)(1), and therefore, the district court reasonable doubt, of the charged offense. properly charged the jury that it must find, beyond a reasonable doubt, that Jenkins knew that the contents of the This Court has held: express mail package was cocaine base. See United States v. Harris, 293 F.3d 970, 974 (6th Cir 2002)(listing the essential In determining whether the evidence supporting [the elements which must be established in order to sustain a defendant’s] conviction is sufficient, we must ask conviction under 21 U.S.C. § 841(a)(1)). “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact Despite the jury’s finding to the contrary, we do not believe could have found the essential elements of the crime that the Government presented sufficient evidence on this beyond a reasonable doubt.” United States v. Humphrey, element. In order to establish this element, the Government 279 F.3d 372, 378 (6th Cir. 2002)(quoting Jackson v. relied principally upon the testimony of Kramer, who testified Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.2d that Jenkins had admitted that she was a crack user and that 560 (1979)). We “view both circumstantial and direct she obtained her crack from someone other than Ingram, and evidence in a light most favorable to the prosecution,” upon the testimony of Gibson, who testified about his id., and “we draw all available inferences and resolve all conversation with Jenkins regarding her receipt of the express issues of credibility in favor of the [factfinder’s] verdict,” mail packages. United States v. Salgado, 250 F.3d 438, 446 (6th Cir.), cert. denied, 534 U.S. 916, 122 S. Ct. 263, 151 L. Ed.2d We have already concluded that the district court abused its 192 (2001), and cert. denied, 534 U.S. 936, 122 S. Ct. discretion in allowing Kramer to offer testimony regarding 306, 151 L. Ed.2d 228 (2001). Jenkins’ prior crack cocaine usage, and United States v. Wade, 318 F. 3d 698, 701 (6th Cir. 2003). we will presume that the district court’s error was “‘A defendant claiming insufficiency of the evidence bears a reversible unless we can say, “with fair assurance, after very heavy burden. . . . Circumstantial evidence alone is pondering all that happened without stripping the No. 02-5573 United States v. Jenkins 21 22 United States v. Jenkins No. 02-5573
erroneous action from the whole, that the judgment was And I said, “I know what it is. It’s delivery of not substantially swayed by the error. . . .” Kotteakos v. drugs, illegal drugs. And I’m very surprised you’re United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L. the one it’s being delivered to.” Ed. 1557 (1946). Whether the jury was “substantially swayed” by the improper admission of evidence of other And she said, “Yeah.” acts in a criminal trial generally depends on whether the properly admissible evidence of the defendant’s guilt was *** overwhelming. And I asked her if she knew what was in the Haywood, 280 F.3d at 724. Here, there was a clear absence packaging. She said, “I didn’t.” of evidence (let alone overwhelming evidence) establishing Jenkins’ knowledge as to the contents of the express mail We believe that Jenkins’ responses to Gibson’s questions packages. As such, the Court finds that, not only did the were, at best, ambiguous; merely responding to a question district court abuse its discretion, it committed reversible with a question and then later using the word, “Yeah” in error in admitting evidence of Jenkins’ prior crack cocaine response to an assertion of fact does not constitute a sufficient usage. basis upon which the jury could glean Jenkins’ knowledge, especially in light of the fact that Jenkins denied having The Government also points to Gibson’s testimony in order knowledge of the content of the express mail package to establish Jenkins’ alleged knowledge that the express mail immediately after saying, “Yeah.” packages contained crack cocaine. At trial, Gibson testified that he had the following colloquy with Jenkins at her home Nevertheless, the Government’s argument does have some on the day of her arrest: support factually and from case law. It is true that Jenkins received $50.00 per package from Ingram just for allowing Q. All right. And what happened when you and the express mail packages to be delivered to her home and Investigator – or Inspector Kramer went to the rear that Jenkins falsely told the law enforcement officers that the bedroom with Ms. Jenkins? express mail package at issue was for “Sarah Johnson.” Moreover, in United States v. Calhoun, 49 F.3d 231 (6th Cir. A. Well, of course, she had been advised of her 1995), this Court affirmed a conviction despite the constitutional rights not to make any statement once defendant’s denials as to her knowledge of the contents of a the search warrant was presented and served. And package where she signed a false name when receiving a then she signed the consent to search. And once package containing a kilogram of cocaine which she admitted myself and Inspector Kramer were in the back, I just was for her live-in boyfriend, where she admitted that she plainly asked her. I said, “Candy, what are you knew that her boyfriend sold drugs, and where she admitted doing here? What is this?” that her boyfriend’s drug money paid for the furniture in their apartment. Id. at 233-34. And she said something like, “What do you think it is?” But, Calhoun is factually distinguishable from this case. The defendant in Calhoun admitted that she knew that the recipient of the package was dealing drugs while Jenkins No. 02-5573 United States v. Jenkins 23 24 United States v. Jenkins No. 02-5573
denied knowing that Ingram was a drug dealer. Moreover, In sum, the express mail package recovered from Jenkins the Government did not present any evidence with which to on the day of her arrest was unopened. She consistently conclude that Jenkins had an intimate relationship with denied having knowledge of the contents of the express mail Ingram from which the jury could reasonably infer that she package, and even the law enforcement officials who knew that Ingram dealt drugs; on the other hand, the inspected the express mail package initially thought that it defendant in Calhoun knew that the recipient of the package contained marijuana, not crack cocaine. Kramer’s testimony (i.e., her live-in boyfriend) was a drug dealer. Finally, the regarding Jenkins’ prior bad acts was inadmissible. And, police did not find any other objects in Jenkins’ apartment Gibson’s testimony, standing alone, regarding his associated with criminal conduct, and she signed her own conversation with Jenkins as to the contents of the express name when receiving the express mail package. In contrast, mail package is an insufficient basis upon which to ground a the defendant’s apartment in Calhoun was furnished by the conclusion that Jenkins knew that the express mail package proceeds of her boyfriend’s drug trafficking, and she signed sent to her home contained crack cocaine and, therefore, that a false name when receiving the package containing a she intentionally became involved in its distribution. In order kilogram of cocaine. to sustain a conviction, the Government had to present evidence that Jenkins knew that the express mail package Furthermore, although it is true that one’s suspicions might contained cocaine base (as opposed to some other illegal be raised at the prospect of receiving $50.00 merely in substance or contraband), and the Government failed to exchange for receiving a package at one’s home, mere present sufficient evidence with which to establish Jenkins’ suspicion cannot sustain a verdict of guilt beyond a knowledge and her intent to distribute crack cocaine. reasonable doubt. See United States v. Pena, 983 F.2d 71, 72- 73 (6th Cir. 1993)(holding that even though a passenger in a Accordingly, the Court finds that the Government failed to car carrying seventeen kilograms of cocaine suspected that present sufficient evidence with which a reasonable jury something illegal was going on, that suspicion did not prove could find Jenkins to be guilty beyond a reasonable doubt of that she actually knew or intended to aid the driver in the the charged offense. As such, Jenkins’ conviction is reversed. distribution of cocaine); see also United States v. Craig, 522 F.2d 29, 31-32 (6th Cir. 1975)(holding that “[i]t would be D. SENTENCE highly conjectural and speculative indeed to conclude from these facts [where the defendant drove a friend who was Because we reverse Jenkins’ conviction, we need not carrying a closed box to an apartment for a drug sale, waited address her argument that the district court erred in denying for him, fled from the scene when law enforcement agents her a two-level reduction, pursuant to U.S.S.G. § 3B1.2, in arrived, abandoned his truck and shotgun, and eluded police her base offense level for being a minimal or minor officers for two years] that Craig had knowledge of the participant or her argument that the district court erred in presence of drugs in the closed box . . . .”); see also United failing to sentence her pursuant to U.S.S.G. § 5C1.2 and States v. Hayter Oil Co., Inc. of Greenville, Tennessee, 51 U.S.C. § 3553(f)’s safety-valve provisions. F.3d 1265, 1271 n. 5 (6th Cir. 1995)(quoting United States v. Van Hee, 531 F.2d 352, 357 (6th Cir. 1976)(holding that “‘[e]vidence that at most establishes no more than a choice of reasonable probabilities cannot be said to be sufficiently substantial to sustain a criminal conviction upon appeal.’”). No. 02-5573 United States v. Jenkins 25
III. CONCLUSION For all of the reasons set forth above, we REVERSE Jenkins’ conviction and REMAND with instructions to dismiss the Indictment.