           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.

                                   1
No. 02-5573                         United States v. Jenkins          3    4    United States v. Jenkins                   No. 02-5573

  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.
