                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-2006

USA v. Jenkins
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3155




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No: 05-3155

                            UNITED STATES OF AMERICA

                                              v.

                                   KENNETH JENKINS
                                also known as Kenny Frank

                                      Kenneth Jenkins,

                                          Appellant


                       Appeal from the United States District Court
                                for District of New Jersey
                               (Crim. No. 03-cr-00759-1)
                         District Court: Hon. Freda L. Wolfson

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 11, 2006

              Before: SLOVITER, MCKEE, and RENDELL, Circuit Judges

                               (Opinion filed: July 21, 2006)

McKEE, Circuit Judge

       Kenneth Jenkins appeals from his judgment of sentence challenging certain of the

district court’s evidentiary rulings. For the reasons that follow, we will affirm.

                                              I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we


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need not recite the facts or procedural history of this appeal. Jenkins first challenges the

district court’s conclusion his uncharged involvement with drugs and firearms was

admissible because it was intrinsic to the charged conspiracy. He also claims the court

erred in ruling that evidence of his uncharged drug involvement before and during the

charged conspiracy was admissible.

               A. The Evidence Was intrinsic to The Charged Offenses.

       As we will discuss more fully below, Fed. R. Evid 404(b) governs the

admissibility of evidence of uncharged “bad acts.” However, “Rule 404(b) does not

extend to evidence of acts which are intrinsic to the charged offense.” United States v.

Cross, 308 F.3d 308, 320 (3d Cir. 2002) (internal quotation marks and citations omitted).

“[A]cts are intrinsic when they directly prove the charged conspiracy.” Id. Here, the

challenged evidence directly proved that Jenkins was not only part of the charged

conspiracy, but a very key player in it. See App. at 34, 36 - 37.

       We have frequently observed that firearms are tools of the drug trade. See United

States v. Russell 134 F.3d 171, 183 (3d Cir. 1998) (“firearms are relevant evidence in the

prosecution of drug-related offenses, because guns are tools of the drug trade); United

States v. Price, 13 D.3d 711, 718-719 (3d Cir. 1994) (possession of weapons is ‘highly

probative of the large scale of narcotics distribution conspiracy and the type of protection

the conspirators felt they needed to protect their operation,” quoting United States v.

Pungitore, 910 F.2d 1084, 1152 (3d Cir. 1990)). Accordingly, the district court properly

concluded evidence of Jenkins’ possession and distribution of drugs and involvement

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with firearms was admissible because it was intrinsic to the charged conspiracy.

       However, evidence which is relevant and admissible for a proper purpose may still

be excluded from trial “if its probative value is substantially outweighed by the danger of

unfair prejudice.” Fed. R. Evid. 403. “A trial judge, therefore, may exclude logically

relevant other crimes evidence if its probative value is substantially outweighed by the

risk of undue prejudice.” United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988).

Here, the district court heard legal argument on this issue, and concluded “the probative

value outweighs [the prejudicial impact]. I will permit it.” Appellee’s App. at 47. Given

this record, that was not an abuse of discretion. Moreover, the court gave an appropriate

limiting instruction informing the jury of the proper purpose this evidence had, and

cautioning against using it improperly. See Appellee’s App. at 48. Although the limiting

instruction was directed toward concerns raised under Fed. R. Evid. 404(b), it

nevertheless minimized the possibility that the jury would use the intrinsically intertwined

evidence to form conclusions about Jenkins’ criminal propensity.

                                      B. Rule 404(b).

       Jenkins argues since, in his estimation, the evidence of uncharged bad conduct was

not intrinsically intertwined with the charged crimes, its admissibility is governed by Rule

404(b). Federal Rule of Evidence 404(b) bars “the introduction of evidence of extrinsic

acts that might adversely reflect on the actor’s character.” Huddleston v. United States,

485 U.S. 681, 685 (1988). However, evidence of other crimes may be introduced “for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,

                                             3
knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). In order

for evidence of uncharged bad acts to be admissible, the government must first establish

that it has a proper purpose, is relevant, and its probative value outweighs its potential for

unfair prejudice. United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003) citing

Huddleston, 485 U.S. at 691-692; United States v. Sampson, 980 F.2d 883, 886 (3d Cir.

1992). We have cautioned that “the proponent [of such evidence] must clearly articulate

how that evidence fits into a chain of logical inferences, no link of which may be the

inference that the defendant has the propensity to commit the crime charged.” United

States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999); United States v. Himmelwright, 42

F.3d 777, 782; United States v. Jemel, 26 F.3d 1267, 1272 (3d Cir. 1994); Sampson, 980

F.2d at 887. Furthermore, the district court must still give a cautionary charge to the jury

that adequately explains the limited scope of any such evidence that is allowed. See Cruz,

326 F.3d at 395 (citations omitted). In addition, the court properly determined that the

probative value of that evidence outweighed its potentially prejudicial impact under Rule

403 as discussed above.

       Here, the government explained at length how the proffered evidence fits into “the

chain of logical inferences” relevant to the charged conspiracy. See Appellee’s App. at

41-42, 45-46. The challenged evidence was relevant to Jenkins’ rise to power, and his

involvement in the charged conspiracy. As the government argues, the evidence

explained how the drug conspiracy grew, and how Jenkins became the leader of the drug

operation. Appellee’s App. at 46. It is relevant to the defendant’s scheme and plan as

                                              4
well as the design of the charged conspiracy, and the court properly concluded that the

evidence survived a Rule 403 balancing test.

                                           III.

      Accordingly, for the reasons set forth above, we will affirm the judgment of

sentence.




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