2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2009

USA v. Jenkins

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4569

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-4569

____________

UNITED STATES OF AMERICA

 v.

KEVIN JENKINS,

 Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 04-cr-00506-2)

District Judge: Honorable Berle M. Schiller

____________

Argued May 28, 2009

Before: FISHER, CHAGARES and COWEN, Circuit Judges.

(Filed: August 19, 2009 )

Peter A. Levin (Argued)

1927 Hamilton Street

Philadelphia, PA 19130

Attorney for Appellant

Jennifer Chun

Bernadette A. McKeon (Argued)

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee
2

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Kevin Jenkins appeals from his judgment of conviction and sentence. Because we

agree with Jenkins that the District Court committed reversible error during the second

retrial when it instructed the jury on Count Three of the superceding indictment, which

charged him with violating 18 U.S.C. § 924(c)(1), we will vacate his conviction on that

count and remand to the District Court for further proceedings. We will affirm the

judgment in all other respects.

I.

We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

In August 2003, New Jersey law enforcement authorities arrested Jenkins based on

his alleged involvement in a home invasion and vehicle theft incident which had occurred

several months earlier and, in January 2004, Jenkins pleaded guilty to robbery in state

court. However, after he had entered his plea, federal authorities informed the state

officials that, based on a federal investigation, Jenkins and his co-defendants had intended

not only to steal a vehicle but also to rob a bank and, as a result of this new information,

the state officials concluded that Jenkins had not been truthful and withdrew his plea. In
Jenkins’s co-defendants, Eric Humbert and Rasheen Jones, were also charged in 1

the superceding indictment. Jones pleaded guilty and Humbert was tried separately from

Jenkins.

3

September of that year, a grand jury in the Eastern District of Pennsylvania returned a

superceding indictment charging Jenkins with one count of conspiracy to commit armed

bank robbery, in violation of 18 U.S.C. § 371 (Count One); one count of using and

possessing a firearm in furtherance of the conspiracy to commit armed bank robbery, in

violation of 18 U.S.C. § 924(c)(1) (Count Three); one count of conspiracy to commit

carjacking, in violation of 18 U.S.C. § 371 (Count Four); one count of carjacking, in

violation of 18 U.S.C. §§ 2119 and 2 (Count Five); and one count of using and possessing

a firearm in furtherance of the conspiracy to commit carjacking, in violation of 18 U.S.C.

§ 924(c)(1) (Count Seven).1

In May 2006, a jury acquitted Jenkins of Count Five, but found him guilty of all

other counts. Following the trial, Jenkins filed motions for judgment of acquittal and for

a new trial, and the District Court granted him a new trial with respect to Counts One and

Three. The retrial on Counts One and Three resulted in a hung jury and the District Court

declared a mistrial. Jenkins was tried again on those two counts and this time the jury

returned a guilty verdict on both counts. The District Court entered judgment against

Jenkins on Counts One, Three, Four, and Seven, sentencing him to 480 months of

imprisonment.
4

Jenkins timely appealed from the judgment. The District Court had jurisdiction

under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.

II.

A.

We begin with Jenkins’s argument that the District Court committed reversible

error when it instructed the jury during his second retrial on the firearm offense charged

in Count Three under 18 U.S.C. § 924(c)(1). Section 924(c)(1)(A) states that “any person

who, during and in relation to any crime of violence or drug trafficking crime . . . uses or

carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall [be

subjected to additional punishment].” Jenkins contends that the District Court

constructively amended his indictment by instructing the jury on the “during and in

relation to” language of § 924(c)(1)(A), instead of on the “in furtherance of” language of

that provision as charged in his indictment. He acknowledges that because he failed to

object to the District Court’s instructions, we review for plain error. United States v.

Syme, 276 F.3d 131, 148 (3d Cir. 2002). Accordingly, we may reverse if the District

Court committed a clear or obvious error which affected Jenkins’s substantial rights and

which seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Olano, 507 U.S. 725, 734-37 (1993).

The Government concedes that the District Court committed an error when it

instructed the jury on Count Three. “A constructive amendment occurs where a
5

defendant is deprived of his substantial right to be tried only on charges presented in an

indictment returned by a grand jury.” Syme, 276 F.3d at 148 (internal quotation marks

omitted); see also United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (stating that

an indictment may be deemed constructively amended when a jury instruction

“broaden[s] the possible bases for conviction from that which appeared in the indictment”

(internal quotation marks omitted)). Here, while Count Three of the superceding

indictment charged Jenkins with the “in furtherance of” language of § 924(c)(1)(A), the

District Court instructed the jury on the “during and in relation to” language of the statute,

which was error. See United States v. Dentler, 492 F.3d 306, 312 (5th Cir. 2007) (stating

that there is a constructive amendment “when the jury is permitted to convict the

defendant based on an alterative basis permitted by the statute but not charged in the

indictment” (internal quotation marks omitted)). Moreover, this error was clear and

obvious under current law. See Syme, 276 F.3d at 151 (“Cases from the Supreme Court

and this court hold that it violates the Grand Jury Clause of the Fifth Amendment when a

court instructs a jury on a ground for conviction that is not fully contained in the

indictment.”).

Even if an error is clear or obvious, the plain error framework requires a showing

that the error affected the defendant’s substantial rights or, in other words, that the error

“was prejudicial in that it affected the outcome of the District Court proceedings.” United

States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008) (internal quotation marks omitted). 
6

Although the defendant generally carries the burden of demonstrating prejudice, where a

district court constructively amends the defendant’s indictment through its instructions to

the jury, such error is “presumptively prejudicial” and, as a result, our inquiry must focus

on “whether the government has effectively rebutted the presumption.” Syme, 276 F.3d at

155.

The Government, acknowledging its burden here, argues that the error in this case

did not prejudice Jenkins because, despite the fact that the jury was instructed on “during

and in relation to,” the evidence at trial nevertheless established what the indictment

alleged – that is, that he used and possessed a firearm “in furtherance of” the conspiracy

to commit armed bank robbery – and thus the error did not affect the outcome of the

proceedings. We are not persuaded. Given the discrete conduct described in

§ 924(c)(1)(A), “Congress may well have intended ‘in furtherance’ to impose a more

stringent standard than ‘in relation to.’” United States v. Loney, 219 F.3d 281, 287 (3d

Cir. 2000); see also United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004) (stating

that “‘in furtherance of’ differs from ‘during and in relation to’ and requires the

government to prove a defendant used the firearm with greater participation”). While

there certainly may be instances where the evidence in a case is so overwhelming that we

can confidently say that a district court’s instruction to the jury on “during and in relation

to” did not prejudice a defendant charged under the “in furtherance of” aspect of the

statute, based on the record before us, we are unable to reach such a conclusion in this
7

case. See, e.g., United States v. Brown, 560 F.3d 754, 768 (8th Cir. 2009) (“By allowing

the jury to convict based on possession of a firearm merely ‘in relation to’ the drug

conspiracy, instead of in furtherance of that conspiracy, the instructions likely affected the

verdict . . . .”); cf. McKee, 506 F.3d at 231-32 (“If we presume, as we must, that the jury

followed the court’s instructions, we must conclude that there is a real possibility that the

jury relied upon the uncharged examples of conduct to convict the Defendants, just as the

court instructed.”); United States v. Dobson, 419 F.3d 231, 240 (3d Cir. 2005)

(acknowledging that the government had presented evidence which the jury could have

determined satisfied the knowledge element of the offense charged in the indictment, but

that this alone “does not preclude a finding of prejudice for purposes of plain error”).

Therefore, having concluded that there was clear and obvious error which, under

the circumstances of this case, affected Jenkins’s substantial rights, we will exercise our

discretion and vacate Jenkins’s conviction on Count Three. See McKee, 506 F.3d at 232

(concluding that the constructive amendment prejudiced the defendants and that

“[l]eaving this error uncorrected would seriously affect the fairness and integrity of the

proceeding”); Syme, 276 F.3d at 155-56 (same); see also United States v. Hunter, 558

F.3d 495, 502-03 (6th Cir. 2009) (concluding that “the district court erroneously informed

the jury that [the defendant] was charged with possession of a firearm ‘during and in

relation to’ a drug trafficking crime, and mixed in this lower standard of participation in

its instructions,” which, under plain error review, warranted reversal).
8

B.

Jenkins raises a variety of other arguments on appeal, which we conclude are all

meritless.

Initially, Jenkins attacks the sufficiency of the evidence as to his convictions for

conspiring to commit carjacking and conspiring to commit armed bank robbery. In

reviewing his challenges, we “must consider the evidence in the light most favorable to

the government and affirm the judgment if there is substantial evidence from which any

rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Frorup,

963 F.2d 41, 42 (3d Cir. 1992). Having examined the evidence pertaining to each count

under this “highly deferential” standard, United States v. Hodge, 321 F.3d 429, 439 (3d

Cir. 2003) (internal quotation marks omitted), we conclude that, contrary to Jenkins’s

contention, a rational juror could find that Jenkins had the requisite intent for conspiracy

to commit carjacking. We further conclude that a jury could find that he entered into an

agreement to rob a bank with the requisite intent and took overt acts in furtherance of that

agreement as required for conspiracy to commit armed bank robbery. See United States v.

Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (“The elements of conspiracy . . . can be proven

entirely by circumstantial evidence.”); United States v. Lopez, 271 F.3d 472, 486-87 (3d

Cir. 2001) (concluding that the evidence was sufficient to establish the intent element of

carjacking where the defendants assaulted the victim in her residence and the vehicle was

outside); United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (“It is not for us to
Jenkins concedes that we review this issue for plain error due to his failure to 2

object in the District Court. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.

2001).

9

weigh the evidence or to determine the credibility of the witnesses.” (internal quotation

marks omitted)).

Next, Jenkins asserts that the District Court plainly erred in answering several

questions that the jury had with respect to the elements of conspiracy to commit

carjacking. According to Jenkins, the District Court incorrectly advised the jury that it 2

was not required to consider the elements of carjacking when determining whether there

was a conspiracy to commit that offense. We disagree. In addition to fully setting forth

the elements of conspiracy and the substantive offense of carjacking in its charge to the

jury, the District Court responded to the jury’s questions by accurately stating that

carjacking and conspiracy to commit carjacking are “separate crime[s],” (App. 402), and

that a defendant does not “have to accomplish the elements of the substantive crime . . . to

be guilty of conspiracy to commit that crime if that is what [he] intended to do,” (App.

410). See, e.g., United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (indicating that

a jury may convict on a conspiracy charge “whether or not the substantive crime ensues”

(internal quotation marks omitted)); Salinas v. United States, 522 U.S. 52, 63, 65 (1997)

(stating that a “conspirator must intend to further an endeavor which, if completed, would

satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt

the goal of furthering or facilitating the criminal endeavor” and that a “conspiracy may
Jenkins also makes passing reference to the Government inadvertently playing a 3

brief portion of a videotape which featured him in a prison jumpsuit, contending that this

compounded the District Court’s alleged error of admitting the guilty plea evidence. But

the District Court determined that this image was momentary and that the jury was not

focusing on it, and given Jenkins’s failure to expound upon this argument, we will not

disturb the District Court’s conclusion. Cf., e.g., Anderson v. Sec’y for the Dep’t of Corr.,

462 F.3d 1319, 1329 (11th Cir. 2006).

While Jenkins’s brief is rather unclear as to his position regarding our standard of 4

review, at oral argument, Jenkins’s counsel appeared to concede that this issue was not

properly preserved. In any event, to the extent that Jenkins still claims that he preserved

this argument in his motion in limine, a review of that motion shows that Jenkins made a

sweeping argument seeking to exclude all references to the home invasion incident, but

made no argument with respect to Rule 410. See, e.g., United States v. Smith, 452 F.3d

323, 330-31 (4th Cir. 2006) (stating that the defendant’s motion in limine, which made

general requests to the trial court, lacked “the required specificity” to preserve the

argument on appeal and thus plain-error review was appropriate).

10

exist even if a conspirator does not agree to commit or facilitate each and every part of

the substantive offense”); Pinkerton v. United States, 328 U.S. 640, 643 (1946) (“[T]he

commission of the substantive offense and a conspiracy to commit it are separate and

distinct offenses.”). The District Court also invited the jury to send another note if it had

additional questions on this issue, which the jury did not do. Thus, we discern no error,

let alone plain error, in the District Court’s answers.

Jenkins also argues that the District Court committed reversible error by permitting

the admission of evidence relating to his state court guilty plea, which had subsequently

been withdrawn by the state prosecution, asserting that Federal Rule of Evidence 410

disallows the admission of such evidence. Jenkins did not move to exclude this evidence 3

in his pretrial motion in limine or at trial and, as a result, we review for plain error.4
11

Evidence of a guilty plea which is later withdrawn is typically inadmissible. Fed. R. Evid.

410(1). That said, it is not clear whether the Rule applies in circumstances such as those

presented here, where the defendant fails to fulfill his end of the plea bargain and the state

withdraws it in response. See 2 Weinstein’s Federal Evidence § 410.09 [7] (2d ed. 1997)

(collecting case law); see also United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007)

(stating that to constitute plain error, the error must be “clear or obvious under current

law”). In addition, not only were Jenkins’s admissions with respect to the guilty plea

consistent with other independently admissible evidence, but Jenkins relied on this

evidence as part of his defense at trial, which undermines his attempt to show any

prejudice resulting from its admission. See, e.g., United States v. Colletti, 984 F.2d 1339,

1344 (3d Cir. 1992) (noting that the alleged error “could readily have been corrected” and

that “[t]here is room for an inference that, in the context of the trial, the incident was not

nearly as significant as the present argument would suggest”); United States v. ValenciaLucena, 925 F.2d 506, 514 (1st Cir. 1991) (stating that the plain error doctrine “should

not be used to provide a second bite at the apple for a defendant whose deliberate trial

strategy has failed”). Under these circumstances, the District Court did not commit

reversible error in permitting the admission of this evidence.

Jenkins further contends that the District Court erred when it denied in part his

motion in limine, allowing the Government to introduce evidence of the home invasion

and vehicle theft incident at his second retrial. More specifically, he contends that
12

because the second retrial involved only the charges of conspiracy to commit armed bank

robbery and the related firearm offense, the District Court should have excluded this

evidence under Federal Rules of Evidence 404 and 403. “We review the District Court’s

decision to exclude or admit evidence for an abuse of discretion, but we have plenary

review of the District Court’s interpretation of the Federal Rules of Evidence.” United

States v. Gilmore, 553 F.3d 266, 271 (3d Cir. 2009).

To the extent that Rule 404 applies here, Jenkins’s argument fails. Cf. United

States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002) (discussing intrinsic evidence and Rule

404(b)). While “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith,” such evidence may

“be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid.

404(b). As we have explained, to be admissible “(1) the evidence must have a proper

purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value

must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the

jury to consider the evidence only for the limited purpose for which it is admitted.” 

United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston v. United

States, 485 U.S. 681, 691-92 (1988)). Each of these factors is met in this case. We agree

with the District Court that the evidence had a proper purpose and was relevant. See

United States v. Vega, 285 F.3d 256, 261 & n.1 (3d Cir. 2002) (stating that “prior bad act
13

evidence may be admitted for the purpose of demonstrating [a defendant’s] knowledge of

a conspiracy and relationship with one of its members,” as well as “for the purpose of

demonstrating that [a defendant] had the opportunity and/or intent to participate in [that]

conspiracy”); see also United States v. Balter, 91 F.3d 427, 437 (3d Cir. 1996) (“Trial

court rulings under Rule 404(b) . . . may be reversed only when they are clearly contrary

to reason and not justified by the evidence.” (internal quotation marks omitted)). We also

agree with the District Court that the danger of unfair prejudice did not substantially

outweigh the probative value of the evidence under Rule 403. See, e.g., Sampson, 980

F.2d at 889 (stating that the Rule 403 “determination lies within the broad discretion of

the trial court”); see also United States v. Kemp, 500 F.3d 257, 297 (3d Cir. 2007)

(explaining that where the contested evidence is highly probative, a defendant “faces a

high hurdle in showing that the danger of unfair prejudice substantially outweighed the

probative value”); Cross, 308 F.3d at 324 (“Rule 404(b) evidence is especially probative

when the charged offense involves a conspiracy.”). And Jenkins does not identify, nor do

we discern, any specific deficiencies in the District Court’s limiting instruction with

respect to this evidence.

Finally, Jenkins contends that his convictions for Counts One and Four, the two

conspiracy charges, violate the Double Jeopardy Clause because the evidence showed

only one agreement. We review for plain error, as Jenkins failed to raise this argument at

any point in the District Court proceedings. See United States v. Miller, 527 F.3d 54, 60
14

(3d Cir. 2008). While we acknowledge a certain amount of overlap in the evidence, we

nevertheless agree with the Government that Jenkins has failed to carry his burden of

demonstrating plain error; for instance, the object of each conspiracy was separate and

distinct, the defendants’ plan to rob the bank was not dependent on obtaining a vehicle

through a carjacking, and the defendants made a calculated decision to carjack a vehicle

only after seeking various other means of obtaining a vehicle, all of which undermine

Jenkins’s claim that there was only one agreement. See United States v. Becker, 892 F.2d

265, 268-69 (3d Cir. 1989) (indicating that “[j]ust because the time periods of the two

conspiracies overlapped does not indicate that only one conspiracy existed,” nor is “some

overlap between the personnel in the two conspiracies . . . indicative of only one

conspiracy,” and explaining that evidence of different objectives weighs in favor of

finding two agreements existed); see also United States v. Smith, 82 F.3d 1261, 1267,

1269-70 (3d Cir. 1996) (noting the importance of evaluating whether there are different

objectives and whether the activities are “interdependent or mutually supportive”); cf.

United States v. Smith, 424 F.3d 992, 1002-03 (9th Cir. 2005) (stating that even if there

was a double jeopardy violation, it was not so clear or obvious such that the district court

should have recognized it without objection). Given the totality of the circumstances, we

reject Jenkins’s argument.
15

III.

For the foregoing reasons, we will vacate Jenkins’s conviction on Count Three and

remand to the District Court for further proceedings, but will affirm the judgment in all

other respects.