     Case: 11-31128     Document: 00511982326         Page: 1     Date Filed: 09/11/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 11, 2012
                                     No. 11-31128
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

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



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-31128         Document: 00511982326        Page: 2     Date Filed: 09/11/2012

                                        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.2 Any error in the admission of the affidavit was
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.4              Barfield testified that he
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


       1
        See United States v. Ndubuisi, 460 F. App’x 436, 439 (5th Cir. 2012); United States v.
Meyer, 733 F.2d 362, 263 (5th Cir. 1984).
       2
           See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).
       3
           See United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008).
       4
           See United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).

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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.5 Agents also recovered a cell phone
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.6 If the
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.




      5
          See United States v. Watkins, 591 F.3d 780, 788 (5th Cir. 2009).
      6
          See United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008).
      7
          See United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011).

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