### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-31128 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAVID CHARLES JENKINS, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:10-CR-279-2
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * David Charles Jenkins appeals his c o nvictions for conspiracy to possess with intent to distribute cocaine base and possession with intent to distribut e cocaine base. He argues that the trial court abused its discretion in admitting into evidence an affidavit that Jenkins executed to exculpate his friend, Kamal Leday. He asserts that the affidavit was not inculpatory; it was merely intended to exculpate Leday; it was unfairly prejudicial to him; and the admission of the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 1, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR
. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR
. R. 47.5 .4. Case: 11-31128 Document: 00511982326 Page: 1 Date Filed: 09/11/2012No. 11-31128

affidavit was not harmless error because there is a reasonable probability that the improperly admitted affidavit contributed to his conviction. The district court did not abuse its discretion in admitting the affidavit into evidence. The district court correctly determined that the statement need not be inculpatory to be admissible under Federal Rule of Evidence 801(d) (2) ( A )

. 1 The evidence in the affidavit was cumulative to the testimony of Corey Barfield, Jenkins’s coconspirator, concerning the planning, transportation, and delivery of the cocaine base. Barfield’s testimony was corroborated by officers’ testimony concerning recorded conversations and their observations during surveillance. Jenkins’s counsel argued in closing arguments that Je n kins’s affidavit should not be considered a confession, and the trial court instructed the jury to consider the affidavit “with caution and great care.” Juri e s a r e p r esumed to follow the district court’s instructions. Any error i n th e a d mission of the affidavit was 2 harmless as it was cumulative and did not contribute to the verdict. 3 Jenkins argues that the eviden c e was insufficient to support his convict i o n s and challenges Barfield’s credibility because he changed his story
numerous times and he testified against Jenkins in order to get a lesser prison sentence. Barfield’s credibility was a matter for the jury, and this court will not reevaluate the jury’s cr e dib il ity determination. Barfield testified that he 4 contacted Jenkins to obtain the crack c ocaine because he believed from past experience that J e nkins could supply the drugs; he agreed to meet Jenkins in Lake Charles, Louisiana; he drove to Lafayet t e i n a decoy vehicle; Jenkins transferred a box containing the crack cocaine to Barfield’s vehicle shortly after

See Uni ted States v. Ndubu is i , 460 F. App ’x 436, 439 (5t h Cir. 2012) ; Uni ted States v. 1 Me yer , 733 F.2d362 , 263 (5t h Cir

. 1984)

. See Uni ted Sta tes v. M udekun ye , 646 F.3d281 , 289 (5t h Cir

. 2011)

. 2 See Uni ted Sta tes v. H aw le y , 516 F.3d264 , 268 (5t h Cir

. 2008)

. 3 See Uni ted Sta tes v. Ra mo s- Cardenas , 524 F.3d600 , 605 (5t h Cir

. 2008)

. 4 2 Case: 11-31128 Document: 00511982326 Page: 2 Date Filed: 09/11/2012No. 11-31128

they arrived in Lafayette; they went to a Waffle House restaurant across from the designated meeting place; they spoke to a confidential i nformant and changed the meeting place to a Circle K store; and they drove to the Circle K store and waited for the confidential i nf o r m a n t. Barfield’s testimony was corroborated by officers’ testimony concerning recorded conversations and their observations during surveillance. A jury may infer a conspiratorial agreement from this kind of coordinated activity. Ag e n t s a l so recovered a cell phone 5 belonging to Barfield and two cell phone s s e i z e d from Jenkins’s vehicle; an investigator found that Barfield’s name and cell- p h o n e number were stored in

one of the cel l phones seized from Jenkins’s vehicle; and Barfield sent text messages to one of the cell phones seized from Jenkins’s vehicle on three dates shortly before the drug transaction. The jury could reasonably infer that Jenkins used the c e l l phone even though it was actually registered to a third p e r s on. The jury found Barfield’s testimony sufficient, even though he was testifying in exchange for leniency, and Jenkins does not argue that Barfield’ s testimony was incredible or insubstantial on its face as a matter of law. If the 6 evidence is viewe d in the light most favorable to the jury’s verdict, a rational jury could have found that the evidence established beyond a reasonable doubt that Jenkins was guilty of conspiracy to possess with intent to distribute and possession with intent to distribute crack cocaine. 7 AFFIRMED.

See Uni ted Sta tes v. W atki ns , 591 F.3d780 , 788 (5t h Cir

. 2009)

. 5 See Uni ted Sta tes v. Pa tino- Prado , 533 F.3d304 , 309 (5t h Cir

. 2008)

. 6 See Uni ted Sta tes v. M cEl we e , 646 F.3d328 , 340 (5t h Cir

. 2011)

. 7 3 Case: 11-31128 Document: 00511982326 Page: 3 Date Filed: 09/11/2012