IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 convictions for conspiracy to possess

with intent to distribute cocaine base and possession with intent to distribute

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 11, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 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 Jenkins’s affidavit should

not be considered a confession, and the trial court instructed the jury to consider

the affidavit “with caution and great care.” Juries are presumed to follow the

district court’s instructions. Any error in the admission of the affidavit was 2

harmless as it was cumulative and did not contribute to the verdict.3

Jenkins argues that the evidence was insufficient to support his

convictions 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 credibility determination. Barfield testified that he 4

contacted Jenkins to obtain the crack cocaine because he believed from past

experience that Jenkins could supply the drugs; he agreed to meet Jenkins in

Lake Charles, Louisiana; he drove to Lafayette in a decoy vehicle; Jenkins

transferred a box containing the crack cocaine to Barfield’s vehicle shortly after

See United States v. Ndubuisi, 460 F. App’x 436, 439 (5th Cir. 2012); United States v. 1

Meyer, 733 F.2d 362, 263 (5th Cir. 1984).

See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).

2

See United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008).

3

See United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).

4

2

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No. 11-31128

they arrived in Lafayette; they went to a Waffle House restaurant across from

the designated meeting place; they spoke to a confidential informant and

changed the meeting place to a Circle K store; and they drove to the Circle K

store and waited for the confidential informant. 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. Agents also recovered a cell phone 5

belonging to Barfield and two cell phones seized from Jenkins’s vehicle; an

investigator found that Barfield’s name and cell-phone number were stored in

one of the cell 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 cell phone even though it was actually registered to a third

person. 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 viewed 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 United States v. Watkins, 591 F.3d 780, 788 (5th Cir. 2009).

5

See United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008).

6

See United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011).

7

3

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