United States of America v. Kevin Jenkins

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-4569
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UNITED STATES OF AMERICA
v.
KEVIN JENKINS,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00506-2)
District Judge: Honorable Berle M. Schiller
____________
Argued May 28, 2009
Before: FISHER, CHAGARES and COWEN, Circuit Judges.
(Filed: August 19, 2009 )
Peter A. Levin (Argued)
1927 Hamilton Street
Philadelphia, PA 19130
Attorney for Appellant
Jennifer Chun
Bernadette A. McKeon (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee

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OPINION OF THE COURT
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FISHER, Circuit Judge.
Kevin Jenkins appeals from his judgment of conviction and sentence. Because we
agree with Jenkins that the District Court committed reversible error during the second
retrial when it instructed the jury on Count Three of the superceding indictment, which
charged him with violating 18 U.S.C. § 924(c)(1), we will vacate his conviction on that
count and remand to the District Court for further proceedings. We will affirm the
judgment in all other respects.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
In August 2003, New Jersey law enforcement authorities arrested Jenkins based on
his alleged involvement in a home invasion and vehicle theft incident which had occurred
several months earlier and, in January 2004, Jenkins pleaded guilty to robbery in state
court. However, after he had entered his plea, federal authorities informed the state
officials that, based on a federal investigation, Jenkins and his co-defendants had intended
not only to steal a vehicle but also to rob a bank and, as a result of this new information,
the state officials concluded that Jenkins had not been truthful and withdrew his plea. In

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Jenkins’s co-defendants, Eric Humbert and Rasheen Jones, were also charged in1
the superceding indictment. Jones pleaded guilty and Humbert was tried separately from
Jenkins.
3
September of that year, a grand jury in the Eastern District of Pennsylvania returned a
superceding indictment charging Jenkins with one count of conspiracy to commit armed
bank robbery, in violation of 18 U.S.C. § 371 (Count One); one count of using and
possessing a firearm in furtherance of the conspiracy to commit armed bank robbery, in
violation of 18 U.S.C. § 924(c)(1) (Count Three); one count of conspiracy to commit
carjacking, in violation of 18 U.S.C. § 371 (Count Four); one count of carjacking, in
violation of 18 U.S.C. §§ 2119 and 2 (Count Five); and one count of using and possessing
a firearm in furtherance of the conspiracy to commit carjacking, in violation of 18 U.S.C.
§ 924(c)(1) (Count Seven).1
In May 2006, a jury acquitted Jenkins of Count Five, but found him guilty of all
other counts. Following the trial, Jenkins filed motions for judgment of acquittal and for
a new trial, and the District Court granted him a new trial with respect to Counts One and
Three. The retrial on Counts One and Three resulted in a hung jury and the District Court
declared a mistrial. Jenkins was tried again on those two counts and this time the jury
returned a guilty verdict on both counts. The District Court entered judgment against
Jenkins on Counts One, Three, Four, and Seven, sentencing him to 480 months of
imprisonment.

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Jenkins timely appealed from the judgment. The District Court had jurisdiction
under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.
II.
A.
We begin with Jenkins’s argument that the District Court committed reversible
error when it instructed the jury during his second retrial on the firearm offense charged
in Count Three under 18 U.S.C. § 924(c)(1). Section 924(c)(1)(A) states that “any person
who, during and in relation to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall [be
subjected to additional punishment].” Jenkins contends that the District Court
constructively amended his indictment by instructing the jury on the “during and in
relation to” language of § 924(c)(1)(A), instead of on the “in furtherance of” language of
that provision as charged in his indictment. He acknowledges that because he failed to
object to the District Court’s instructions, we review for plain error. United States v.
Syme, 276 F.3d 131, 148 (3d Cir. 2002). Accordingly, we may reverse if the District
Court committed a clear or obvious error which affected Jenkins’s substantial rights and
which seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Olano, 507 U.S. 725, 734-37 (1993).
The Government concedes that the District Court committed an error when it
instructed the jury on Count Three. “A constructive amendment occurs where a

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defendant is deprived of his substantial right to be tried only on charges presented in an
indictment returned by a grand jury.” Syme, 276 F.3d at 148 (internal quotation marks
omitted); see also United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (stating that
an indictment may be deemed constructively amended when a jury instruction
“broaden[s] the possible bases for conviction from that which appeared in the indictment”
(internal quotation marks omitted)). Here, while Count Three of the superceding
indictment charged Jenkins with the “in furtherance of” language of § 924(c)(1)(A), the
District Court instructed the jury on the “during and in relation to” language of the statute,
which was error. See United States v. Dentler, 492 F.3d 306, 312 (5th Cir. 2007) (stating
that there is a constructive amendment “when the jury is permitted to convict the
defendant based on an alterative basis permitted by the statute but not charged in the
indictment” (internal quotation marks omitted)). Moreover, this error was clear and
obvious under current law. See Syme, 276 F.3d at 151 (“Cases from the Supreme Court
and this court hold that it violates the Grand Jury Clause of the Fifth Amendment when a
court instructs a jury on a ground for conviction that is not fully contained in the
indictment.”).
Even if an error is clear or obvious, the plain error framework requires a showing
that the error affected the defendant’s substantial rights or, in other words, that the error
“was prejudicial in that it affected the outcome of the District Court proceedings.” United
States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008) (internal quotation marks omitted).

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Although the defendant generally carries the burden of demonstrating prejudice, where a
district court constructively amends the defendant’s indictment through its instructions to
the jury, such error is “presumptively prejudicial” and, as a result, our inquiry must focus
on “whether the government has effectively rebutted the presumption.” Syme, 276 F.3d at
155.
The Government, acknowledging its burden here, argues that the error in this case
did not prejudice Jenkins because, despite the fact that the jury was instructed on “during
and in relation to,” the evidence at trial nevertheless established what the indictment
alleged – that is, that he used and possessed a firearm “in furtherance of” the conspiracy
to commit armed bank robbery – and thus the error did not affect the outcome of the
proceedings. We are not persuaded. Given the discrete conduct described in
§ 924(c)(1)(A), “Congress may well have intended ‘in furtherance’ to impose a more
stringent standard than ‘in relation to.’” United States v. Loney, 219 F.3d 281, 287 (3d
Cir. 2000); see also United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004) (stating
that “‘in furtherance of’ differs from ‘during and in relation to’ and requires the
government to prove a defendant used the firearm with greater participation”). While
there certainly may be instances where the evidence in a case is so overwhelming that we
can confidently say that a district court’s instruction to the jury on “during and in relation
to” did not prejudice a defendant charged under the “in furtherance of” aspect of the
statute, based on the record before us, we are unable to reach such a conclusion in this

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case. See, e.g., United States v. Brown, 560 F.3d 754, 768 (8th Cir. 2009) (“By allowing
the jury to convict based on possession of a firearm merely ‘in relation to’ the drug
conspiracy, instead of in furtherance of that conspiracy, the instructions likely affected the
verdict . . . .”); cf. McKee, 506 F.3d at 231-32 (“If we presume, as we must, that the jury
followed the court’s instructions, we must conclude that there is a real possibility that the
jury relied upon the uncharged examples of conduct to convict the Defendants, just as the
court instructed.”); United States v. Dobson, 419 F.3d 231, 240 (3d Cir. 2005)
(acknowledging that the government had presented evidence which the jury could have
determined satisfied the knowledge element of the offense charged in the indictment, but
that this alone “does not preclude a finding of prejudice for purposes of plain error”).
Therefore, having concluded that there was clear and obvious error which, under
the circumstances of this case, affected Jenkins’s substantial rights, we will exercise our
discretion and vacate Jenkins’s conviction on Count Three. See McKee, 506 F.3d at 232
(concluding that the constructive amendment prejudiced the defendants and that
“[l]eaving this error uncorrected would seriously affect the fairness and integrity of the
proceeding”); Syme, 276 F.3d at 155-56 (same); see also United States v. Hunter, 558
F.3d 495, 502-03 (6th Cir. 2009) (concluding that “the district court erroneously informed
the jury that [the defendant] was charged with possession of a firearm ‘during and in
relation to’ a drug trafficking crime, and mixed in this lower standard of participation in
its instructions,” which, under plain error review, warranted reversal).

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B.
Jenkins raises a variety of other arguments on appeal, which we conclude are all
meritless.
Initially, Jenkins attacks the sufficiency of the evidence as to his convictions for
conspiring to commit carjacking and conspiring to commit armed bank robbery. In
reviewing his challenges, we “must consider the evidence in the light most favorable to
the government and affirm the judgment if there is substantial evidence from which any
rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Frorup,
963 F.2d 41, 42 (3d Cir. 1992). Having examined the evidence pertaining to each count
under this “highly deferential” standard, United States v. Hodge, 321 F.3d 429, 439 (3d
Cir. 2003) (internal quotation marks omitted), we conclude that, contrary to Jenkins’s
contention, a rational juror could find that Jenkins had the requisite intent for conspiracy
to commit carjacking. We further conclude that a jury could find that he entered into an
agreement to rob a bank with the requisite intent and took overt acts in furtherance of that
agreement as required for conspiracy to commit armed bank robbery. See United States v.
Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (“The elements of conspiracy . . . can be proven
entirely by circumstantial evidence.”); United States v. Lopez, 271 F.3d 472, 486-87 (3d
Cir. 2001) (concluding that the evidence was sufficient to establish the intent element of
carjacking where the defendants assaulted the victim in her residence and the vehicle was
outside); United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (“It is not for us to

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Jenkins concedes that we review this issue for plain error due to his failure to2
object in the District Court. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.
2001).
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weigh the evidence or to determine the credibility of the witnesses.” (internal quotation
marks omitted)).
Next, Jenkins asserts that the District Court plainly erred in answering several
questions that the jury had with respect to the elements of conspiracy to commit
carjacking. According to Jenkins, the District Court incorrectly advised the jury that it2
was not required to consider the elements of carjacking when determining whether there
was a conspiracy to commit that offense. We disagree. In addition to fully setting forth
the elements of conspiracy and the substantive offense of carjacking in its charge to the
jury, the District Court responded to the jury’s questions by accurately stating that
carjacking and conspiracy to commit carjacking are “separate crime[s],” (App. 402), and
that a defendant does not “have to accomplish the elements of the substantive crime . . . to
be guilty of conspiracy to commit that crime if that is what [he] intended to do,” (App.
410). See, e.g., United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (indicating that
a jury may convict on a conspiracy charge “whether or not the substantive crime ensues”
(internal quotation marks omitted)); Salinas v. United States, 522 U.S. 52, 63, 65 (1997)
(stating that a “conspirator must intend to further an endeavor which, if completed, would
satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt
the goal of furthering or facilitating the criminal endeavor” and that a “conspiracy may

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Jenkins also makes passing reference to the Government inadvertently playing a3
brief portion of a videotape which featured him in a prison jumpsuit, contending that this
compounded the District Court’s alleged error of admitting the guilty plea evidence. But
the District Court determined that this image was momentary and that the jury was not
focusing on it, and given Jenkins’s failure to expound upon this argument, we will not
disturb the District Court’s conclusion. Cf., e.g., Anderson v. Sec’y for the Dep’t of Corr.,
462 F.3d 1319, 1329 (11th Cir. 2006).
While Jenkins’s brief is rather unclear as to his position regarding our standard of4
review, at oral argument, Jenkins’s counsel appeared to concede that this issue was not
properly preserved. In any event, to the extent that Jenkins still claims that he preserved
this argument in his motion in limine, a review of that motion shows that Jenkins made a
sweeping argument seeking to exclude all references to the home invasion incident, but
made no argument with respect to Rule 410. See, e.g., United States v. Smith, 452 F.3d
323, 330-31 (4th Cir. 2006) (stating that the defendant’s motion in limine, which made
general requests to the trial court, lacked “the required specificity” to preserve the
argument on appeal and thus plain-error review was appropriate).
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exist even if a conspirator does not agree to commit or facilitate each and every part of
the substantive offense”); Pinkerton v. United States, 328 U.S. 640, 643 (1946) (“[T]he
commission of the substantive offense and a conspiracy to commit it are separate and
distinct offenses.”). The District Court also invited the jury to send another note if it had
additional questions on this issue, which the jury did not do. Thus, we discern no error,
let alone plain error, in the District Court’s answers.
Jenkins also argues that the District Court committed reversible error by permitting
the admission of evidence relating to his state court guilty plea, which had subsequently
been withdrawn by the state prosecution, asserting that Federal Rule of Evidence 410
disallows the admission of such evidence. Jenkins did not move to exclude this evidence3
in his pretrial motion in limine or at trial and, as a result, we review for plain error.4

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Evidence of a guilty plea which is later withdrawn is typically inadmissible. Fed. R. Evid.
410(1). That said, it is not clear whether the Rule applies in circumstances such as those
presented here, where the defendant fails to fulfill his end of the plea bargain and the state
withdraws it in response. See 2 Weinstein’s Federal Evidence § 410.09 [7] (2d ed. 1997)
(collecting case law); see also United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007)
(stating that to constitute plain error, the error must be “clear or obvious under current
law”). In addition, not only were Jenkins’s admissions with respect to the guilty plea
consistent with other independently admissible evidence, but Jenkins relied on this
evidence as part of his defense at trial, which undermines his attempt to show any
prejudice resulting from its admission. See, e.g., United States v. Colletti, 984 F.2d 1339,
1344 (3d Cir. 1992) (noting that the alleged error “could readily have been corrected” and
that “[t]here is room for an inference that, in the context of the trial, the incident was not
nearly as significant as the present argument would suggest”); United States v. Valencia-
Lucena, 925 F.2d 506, 514 (1st Cir. 1991) (stating that the plain error doctrine “should
not be used to provide a second bite at the apple for a defendant whose deliberate trial
strategy has failed”). Under these circumstances, the District Court did not commit
reversible error in permitting the admission of this evidence.
Jenkins further contends that the District Court erred when it denied in part his
motion in limine, allowing the Government to introduce evidence of the home invasion
and vehicle theft incident at his second retrial. More specifically, he contends that

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because the second retrial involved only the charges of conspiracy to commit armed bank
robbery and the related firearm offense, the District Court should have excluded this
evidence under Federal Rules of Evidence 404 and 403. “We review the District Court’s
decision to exclude or admit evidence for an abuse of discretion, but we have plenary
review of the District Court’s interpretation of the Federal Rules of Evidence.” United
States v. Gilmore, 553 F.3d 266, 271 (3d Cir. 2009).
To the extent that Rule 404 applies here, Jenkins’s argument fails. Cf. United
States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002) (discussing intrinsic evidence and Rule
404(b)). While “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith,” such evidence may
“be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). As we have explained, to be admissible “(1) the evidence must have a proper
purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value
must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the
jury to consider the evidence only for the limited purpose for which it is admitted.”
United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston v. United
States, 485 U.S. 681, 691-92 (1988)). Each of these factors is met in this case. We agree
with the District Court that the evidence had a proper purpose and was relevant. See
United States v. Vega, 285 F.3d 256, 261 & n.1 (3d Cir. 2002) (stating that “prior bad act

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evidence may be admitted for the purpose of demonstrating [a defendant’s] knowledge of
a conspiracy and relationship with one of its members,” as well as “for the purpose of
demonstrating that [a defendant] had the opportunity and/or intent to participate in [that]
conspiracy”); see also United States v. Balter, 91 F.3d 427, 437 (3d Cir. 1996) (“Trial
court rulings under Rule 404(b) . . . may be reversed only when they are clearly contrary
to reason and not justified by the evidence.” (internal quotation marks omitted)). We also
agree with the District Court that the danger of unfair prejudice did not substantially
outweigh the probative value of the evidence under Rule 403. See, e.g., Sampson, 980
F.2d at 889 (stating that the Rule 403 “determination lies within the broad discretion of
the trial court”); see also United States v. Kemp, 500 F.3d 257, 297 (3d Cir. 2007)
(explaining that where the contested evidence is highly probative, a defendant “faces a
high hurdle in showing that the danger of unfair prejudice substantially outweighed the
probative value”); Cross, 308 F.3d at 324 (“Rule 404(b) evidence is especially probative
when the charged offense involves a conspiracy.”). And Jenkins does not identify, nor do
we discern, any specific deficiencies in the District Court’s limiting instruction with
respect to this evidence.
Finally, Jenkins contends that his convictions for Counts One and Four, the two
conspiracy charges, violate the Double Jeopardy Clause because the evidence showed
only one agreement. We review for plain error, as Jenkins failed to raise this argument at
any point in the District Court proceedings. See United States v. Miller, 527 F.3d 54, 60

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(3d Cir. 2008). While we acknowledge a certain amount of overlap in the evidence, we
nevertheless agree with the Government that Jenkins has failed to carry his burden of
demonstrating plain error; for instance, the object of each conspiracy was separate and
distinct, the defendants’ plan to rob the bank was not dependent on obtaining a vehicle
through a carjacking, and the defendants made a calculated decision to carjack a vehicle
only after seeking various other means of obtaining a vehicle, all of which undermine
Jenkins’s claim that there was only one agreement. See United States v. Becker, 892 F.2d
265, 268-69 (3d Cir. 1989) (indicating that “[j]ust because the time periods of the two
conspiracies overlapped does not indicate that only one conspiracy existed,” nor is “some
overlap between the personnel in the two conspiracies . . . indicative of only one
conspiracy,” and explaining that evidence of different objectives weighs in favor of
finding two agreements existed); see also United States v. Smith, 82 F.3d 1261, 1267,
1269-70 (3d Cir. 1996) (noting the importance of evaluating whether there are different
objectives and whether the activities are “interdependent or mutually supportive”); cf.
United States v. Smith, 424 F.3d 992, 1002-03 (9th Cir. 2005) (stating that even if there
was a double jeopardy violation, it was not so clear or obvious such that the district court
should have recognized it without objection). Given the totality of the circumstances, we
reject Jenkins’s argument.

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III.
For the foregoing reasons, we will vacate Jenkins’s conviction on Count Three and
remand to the District Court for further proceedings, but will affirm the judgment in all
other respects.

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