United States of America v. Candy Jenkins

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0361P (6th Cir.)
File Name: 03a0361p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CANDY JENKINS,
Defendant-Appellant.
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No. 02-5573
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 01-10057—James D. Todd, Chief District Judge.
Argued: September 10, 2003
Decided and Filed: October 9, 2003
Before: MOORE and GILMAN, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ARGUED: M. Dianne Smothers, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
2 United States v. Jenkins No. 02-5573
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Victor L. Ivy, ASSISTANT UNITED STATES
ATTORNEY, Jackson, Tennessee, for Appellee.
ON BRIEF: M. Dianne Smothers, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Victor L. Ivy, ASSISTANT UNITED STATES
ATTORNEY, Jackson, Tennessee, for Appellee.
_________________
OPINION
_________________
RICHARD MILLS, District Judge. Candy Jenkins was
indicted and charged with one count of possession with the
intent to distribute fifty (50) grams or more of cocaine base
(“crack”) in violation of 21 U.S.C. § 841(a)(1).
Jenkins pleaded not guilty, was tried by a jury, and found
guilty.
On April 17, 2002, the district court sentenced her to 121
months of imprisonment, to be followed by five years of
supervised release.
On appeal, Jenkins challenges her conviction upon three
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
mail package labels from packages which had been delivered
to her home prior to her arrest; (2) because the district court
erred in admitting, pursuant to Federal Rule of Evidence
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
charged in the Indictment.

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No. 02-5573 United States v. Jenkins 3
1The return address listed on the express mail package was 3559
Alicia, Altadena, California, 91001 . It was later d etermined that this
address was a house that had been vacant for two years.
As for her sentence, Jenkins contends that the district court
erred: (1) in denying her a reduction, pursuant to U.S.S.G.
§ 3B1.2, in her base offense level for being a minimal or
minor participant; and (2) in denying her request to apply the
safety-valve provision of U.S.S.G. § 5C1.2 and 18 U.S.C.
§ 3553(f)(1) - (5) to her sentence.
For the reasons set forth below, we REVERSE Jenkins’
conviction and REMAND with instructions to dismiss the
Indictment.
I. BACKGROUND
On August 7, 2001, Mark Cooley, a supervisor at the
United States Post Office in Union City, Tennessee, contacted
United States Postal Inspector Bradley Kramer regarding a
suspicious express mail package which was addressed to 813
College Street, Union City, Tennessee.1 This address
belonged to Candy Jenkins. Cooley contacted Kramer
because he believed that the express mail package contained
illegal drugs. Cooley informed Kramer that he believed that
previous express mail packages delivered to this address also
contained illegal drugs. Kramer instructed Cooley to deliver
the package, to keep a log of all future express mail packages
sent to this address, and to telephone him again about any
further suspicious express mail packages which were sent to
this address.
On August 11, 2001, Cooley telephoned Kramer and
informed him that another suspicious express mail package
had been sent to 813 College Street, Union City, Tennessee.
Kramer instructed Cooley to again deliver the package to that
address. This package had the same return address as the
August 7, 2001, package.
4 United States v. Jenkins No. 02-5573
On August 29, 2001, Andy Gibson, a sergeant with the
Union City Police Department, telephoned Kramer in order to
discuss the two express mail packages which had been sent to
813 College Street, Union City, Tennessee. Kramer told
Gibson that he was maintaining a file (as was the Union City
Post Office) on the packages which were being sent to that
address and that, when the next package was sent to that
address, he would come to Union City in order to inspect the
package and decide what to do next.
On September 25, 2001, Cooley contacted Kramer
regarding another express mail package for the 813 College
Street address. Kramer instructed Cooley to hold this
package (which listed the same return address as the other
express mail packages) for investigation. Kramer then went
to Union City and examined the package. Kramer described
the package as being “[l]ike one of those poly bags” rather
than a cardboard envelope. Based upon the weights of the
express mail packages, Kramer initially thought that the
packages (including the present one) contained marijuana.
However, based upon his experience, training, and further
inspection of the current package, Kramer concluded that the
package contained crack cocaine.
Accordingly, Gibson and K-9 officer Tac Simmons, along
with his drug dog, CiCi, met Kramer at the Union City Post
Office. Upon inspection, CiCi alerted on the package by
making a pawing motion on it, thereby indicating the
presence of drugs inside. Thereafter, Gibson telephoned other
officers at the Union City Police Department and made
arrangements to conduct a controlled delivery of the package.
Later that same day, Roger Burrus, an employee of the
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
answered the door and signed for the package. Burrus gave
the package to Jenkins and left, and Jenkins returned inside
the residence.

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No. 02-5573 United States v. Jenkins 5
2Gibson knew Jenkins from prior contacts with her.
At some point later, Jenkins exited her house, and Kramer
and Gibson approached her. The two identified themselves
as law enforcement officers and advised Jenkins of her
constitutional rights.2 Kramer and Gibson asked for Jenkins’
consent to search her house, and she consented. Several law
enforcement officers then went inside Jenkins’ house and
found the express mail package unopened and sitting on a
chair in the living room. The officers asked Jenkins what she
knew about the package, and she told them that she was
receiving it for Sarah Johnson who was out of town. When
the officers asked her who that person was, Jenkins replied
that she really did not know Sarah Johnson very well.
After the law enforcement officers opened the package, and
after they verified that it contained narcotics, Jenkins asked
Kramer and Gibson if she could speak with them in private.
Once the three had reached a back bedroom, Gibson asked
Jenkins, “Candy, what are you doing here? What is this?”
Jenkins replied, “What do you think it is?” Gibson
responded, “I know what it is. It’s a delivery of drugs, illegal
drugs, and I’m very surprised that you are the one that it’s
being delivered to.” Jenkins stated, “Yeah.” Jenkins also
advised Kramer and Gibson that her explanation of receiving
the package for Sarah Johnson was not true; rather, Jenkins
said that Carla “Rabbit” Johnson had contacted her to see if
she would start accepting packages through the mail and that
an individual known as Brian Ingram (a/k/a Brian Byars)
would pick up the packages and give her $50.00 per package.
Jenkins denied having knowledge of the contents of the
package and estimated that she had received two packages per
month from May until the present.
The law enforcement officers then placed Jenkins under
arrest and transported her to the Obion County Jail. At the
jail, Jenkins executed a Rights Waiver and gave the following
written statement:
6 United States v. Jenkins No. 02-5573
Probably in May 2001 Carla “Rabbit” Johnson called me
and asked if I could get a package at my house through
the U.S. Mail. She said it would be addressed to me.
Packages started to be delivered probably in May, and I
signed for them. In May, maybe one, two packages. In
June, two packages, maybe every two to three weeks.
Two in July. Two in August. Two in September. The
second one is when the police came to my house. The
only person who came and got the packages from me was
Brian Ingram. He paid me fifty dollars for each U.S.
Mail delivery to my apartment. He never said what was
in them. I never asked, what was in them. I’ve known
Brian maybe for twenty years, he is my friend. On
9/25/01, he came to my apartment two times and asked
did the package come yet. I said no. I signed for the
package. Brian drove up. I saw him, and he drove off,
and the police came. I have never opened them. These
were for Brian.
During the trial, the Government sought to introduce the
mailing labels from the express mail packages which had
previously been delivered to Jenkins’ address. Jenkins
objected to the labels’ admission on two grounds: (1) the
Government could not offer any proof as to what was inside
of the packages and (2) the Government could not lay a
proper foundation for the labels’ admission. The Government
responded that it could establish that these records were kept
in the regular course of business at the Union City Post Office
and were, therefore, admissible under the business records
exception to the hearsay rule. The Government asserted that
it could lay a proper foundation for the labels’ admission
through Kramer’s testimony. The district court admitted the
labels into evidence pursuant to the business records
exception to the hearsay rule codified at Federal Rule of
Evidence Rule 803(6).
In addition to offering testimony regarding the mailing
labels, Kramer testified about the conversation which he had
with Jenkins in her bedroom on September 25, 2001.

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No. 02-5573 United States v. Jenkins 7
Specifically, Kramer told the jury that Jenkins had admitted
to him that she had smoked crack cocaine in the past and that
she was a current crack cocaine user. Jenkins denied,
however, that Ingram was the source of her crack cocaine;
rather, she stated that she obtained her crack cocaine from
some guy down the street, although she did not want to reveal
who that person was.
Jenkins objected to Kramer’s testimony that she had
admitted to him that she had smoked crack cocaine in the past
and that she was a current crack cocaine user. Jenkins argued
that this testimony constituted a prior bad act which was only
offered to establish her character and propensity to commit
the charged crime, and therefore, the evidence was
inadmissible pursuant to Federal Rule of Evidence 404(b).
The district court, however, found that Kramer’s testimony
was admissible under Rule 404(b) because the Government
had offered Kramer’s testimony in order to establish Jenkins’
knowledge that the express mail package contained crack
cocaine, not in order to establish her character and propensity
to commit the charged offense. The district court gave a
limiting instruction to the jurors which cautioned them that
the evidence was admissible only “to the extent that you may
determine it might be relevant to the issue of knowledge” as
to what was in the packages.
On January 15, 2001, the jury found Jenkins guilty of
possession with the intent to distribute fifty (50) or more
grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) as
charged in the one count Indictment.
On April 17, 2002, the district court conducted Jenkins’
sentencing hearing. At the hearing, the Government called
Gibson, who read the written statement which Jenkins had
given to the officers at the Obion County Jail after her arrest
and called United States Probation Officer Mark Escue who
offered testimony regarding Jenkins’ relevant conduct (i.e.,
the other express mail packages which she had received) and
8 United States v. Jenkins No. 02-5573
regarding Jenkins’ lack of acceptance of responsibility for her
crime (i.e., his belief that Jenkins had not given truthful
information regarding her participation in the crime and,
therefore, did not qualify for U.S.S.G. § 5C1.2's safety valve
provision).
After considering the arguments and evidence, the district
court sustained Jenkins’ objection to the amount of drugs for
which she was being held responsible as relevant conduct in
her Presentence Report. Specifically, the district judge held
that, although he personally believed that the other express
mail packages sent to Jenkins contained crack cocaine, there
was no evidence to substantiate his belief, and there was no
evidence regarding the quantity of drugs contained within
those packages. Accordingly, the district court held Jenkins
accountable only for the amount of drugs found in the express
mail package delivered to her house on September 25, 2001,
(i.e., 96.7 grams) and, thus, reduced her base offense level
from 36 to 32.
However, the district court denied Jenkins’ request that she
receive a two-level reduction in her base offense level,
pursuant to U.S.S.G. §3C1.2, for being a minimal or minor
participant. In denying her request, the district court stated:
Now, it’s true that perhaps the receiver of the package is
somewhat less culpable than the shipper of the package,
but they’re both necessary to make a package shipment
work.
If this had occurred one time, perhaps the defendant
might have a better argument; but this occurred
repeatedly over some months, and it’s clear that the
defendant was an active participant. So the defendant’s
request for a reduction in that regard is denied.
Finally, because the district court found Jenkins’ adjusted
offense level to be 32 and her criminal history category to be
I, yielding a sentencing guideline range of 121 to 151 months

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No. 02-5573 United States v. Jenkins 9
of imprisonment, the Court held that Jenkins’ request to be
sentenced pursuant to the safety valve provision of U.S.S.G.
§ 5C1.2 had become moot:
That makes the argument for the safety valve moot
because a level 32 and a criminal history of I creates a
sentencing range of 121 to 151, the minium of which is
still above the ten-year mandatory minimum. So the
safety valve provision becomes moot.
The district court went on to state:
But in the event it were not moot, the court would
conclude that the defendant does not qualify for the
safety valve because she has not truthfully admitted her
responsibility for this conduct.
Accordingly, the district court sentenced Jenkins to 121
months of imprisonment, to be followed by a five year term
of supervised release, for her conviction. On April 22, 2001,
Jenkins filed a timely notice of appeal challenging her
conviction and sentence.
II. ANALYSIS
A. MAILING LABELS
Jenkins argues that the district court erred in admitting into
evidence during the trial the mailing labels from the other
express mail packages which she received at her home.
Jenkins asserts that the labels constitute excludable hearsay
for which no exception applies. Contrary to the district
court’s finding, Jenkins contends that the Government did not
lay a proper foundation for the admission of the labels and
claims that it did not establish that the business records
exception to the hearsay rule applied because Kramer was not
an “otherwise qualified witness” under Rule 803(6).
Although Kramer testified that he was familiar with the fact
that the Union City Post Office gave him the records which
10 United States v. Jenkins No. 02-5573
he had requested, Jenkins claims that Kramer never indicated
that he had an understanding about the record keeping system
at the Union City Post Office. Without this knowledge,
Jenkins claims that Kramer is neither a custodian nor an
otherwise qualified witness as required by Rule 803(6).
The Government argues that Kramer qualifies under Rule
803(6) as an other qualified witness, and thus, the district
court correctly admitted the labels pursuant to the business
records exception to the hearsay rule. The Government
asserts that it is clear from Kramer’s testimony that he was
aware of the record keeping procedures of the United States
Postal Service. Moreover, Kramer testified that he was
familiar with these business records based upon his training
and experience. Finally, the Government notes that it was
Kramer who instructed Cooley to maintain the very records
in question and advised him on how to maintain the records.
In any event, the Government argues that, if the district court
erred in admitting this evidence, the admission constitutes
harmless error which does not require reversal.
“In reviewing a trial court’s evidentiary determinations, this
court reviews de novo the court’s conclusions of law and
reviews for clear error the court’s factual determinations that
underpin its legal conclusions.” United States v. Salgado, 250
F.3d 438, 451 (6th Cir. 2001)(citing United States v. Reed,
167 F.3d 984, 987 (6th Cir. 1999).
As this Court has explained:
A business record must satisfy four requirements in order
to be admissible under Rule 803(6):
(1) it must have been made in the course of a regularly
conducted business activity; (2) it must have been kept
in the regular course of that business; (3) the regular
practice of that business must have been to have made
the memorandum; and (4) the memorandum must have
been made by a person with knowledge of the

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No. 02-5573 United States v. Jenkins 11
transaction or from information transmitted by a
person with knowledge.
United States v. Weinstock, 153 F.3d 272, 276 (6th Cir.
1998) (quoting Redken Laboratories, Inc. v. Levin, 843
F.2d 226, 229 (6th Cir.), cert. denied, 488 U.S. 852, 109
S. Ct. 137, 102 L. Ed.2d 110 (1988)). This information
must be presented through “the testimony of the
custodian or other qualified witness[.]” Fed. R. Evid.
803(6). Business records meeting these criteria are
admissible “unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness.” Id.
“Rule 803(6) does not require that the custodian
personally gather, input, and compile the information
memorialized in a business record.” Weinstock, 153 F.3d
at 276. The custodian of the records need not be in
control of or have individual knowledge of the particular
corporate records, but need only be familiar with the
company’s recordkeeping practices. Id. (citing In re
Custodian of Records of Variety Distrib., Inc., 927 F.2d
244, 248 (6th Cir. 1991)). Likewise, “[t]o be an ‘other
qualified witness,’ it is not necessary that the person
laying the foundation for the introduction of the business
record have personal knowledge of their preparation.”
Dyno Construction Co. v. McWane, Inc., 198 F.3d 567,
575-76 (6th Cir. 1999).
Salgado, 250 F.3d at 451-52.
In the instant case, the district court correctly found that
Kramer was an “otherwise qualified witness” under Rule
803(6). Kramer testified that he was familiar with these
labels through his training and experience and that he
commonly dealt with these records. Moreover, Kramer
testified that he had instructed Cooley (i.e., the individual
from whom he had requested the production of these labels)
on how to maintain these labels. Finally, Kramer testified
12 United States v. Jenkins No. 02-5573
that he was maintaining a file on the suspicious express mail
packages which were being sent to Jenkins’ address which
was similar to the file which was being kept at the Union City
Post Office.
In order to be considered to be an “otherwise qualified
witness” under Rule 803(6), “[a]ll that is required of the
witness is that he or she is familiar with the record keeping
procedures of the organization.”Dyno Constr. Co. v. McWane,
Inc., 198 F.3d 567, 576 (6th Cir. 1999). Kramer testified that
he was familiar with the Union City Post Office’s record
keeping procedures with regard to the express mail package
labels, and therefore, the district court did not abuse its
discretion in admitting the labels pursuant to Rule 803(6).
B. PRIOR BAD ACTS
Jenkins next argues that the district court erred in admitting
evidence, pursuant to Federal Rule of Evidence 404(b), that
she had previously smoked and was a current user of crack
cocaine. Jenkins asserts that the only evidence offered that
she had smoked crack cocaine in the past was offered through
the testimony of Kramer, and her admission to him was made
in reference to the fact that she told Kramer that she obtained
her crack cocaine from someone other than Ingram. Jenkins
contends that no logical inference can be drawn from her
statements to Kramer that she in any way acknowledged that
she knew that Ingram was a crack cocaine dealer and,
therefore, that she could have reasonably known that the
packages which she received on his behalf contained crack
cocaine. In short, Jenkins asserts that the Government failed
to prove that the evidence of her personal use of crack cocaine
was probative of a material issue other than her character and
propensity to commit the charged crime, and therefore, the
district court erred in admitting this evidence.
The Government argues that the district court did not err in
admitting this evidence. The Government asserts that,
because possession with the intent to distribute a controlled

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No. 02-5573 United States v. Jenkins 13
substance is a specific intent crime, it was permitted to offer
other acts evidence under Rule 404(b) in order to establish
Jenkins’ intent to commit the charged offense. Here, the
Government claims that the district court correctly admitted
the prior bad acts evidence because it was probative of
Jenkins’ knowledge of the contents of the express mail
packages and that the district court mitigated any unfair
prejudicial effect which the evidence might have had against
her by giving a limiting instruction to the jury informing it of
the extent to which it should, if at all, consider this evidence.
“This court reviews a district court’s evidentiary
determinations under Fed. R. Evid. 404(b) for abuse of
discretion. A district court is considered to have abused its
discretion when this court is left with the definite and firm
conviction that the district court committed a clear error of
judgment in the conclusion it reached upon a weighing of the
relevant factors.” United States v. Copeland, 321 F.3d 582,
595 (6th Cir. 2003)(internal citations and quotations omitted).
Federal Rule of Evidence 404(b) provides, in relevant part:
“Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident . . . .” Id. This Court has established a three-step
process for determining the admissibility of other acts
evidence under Rule 404(b). First, the district court must
decide whether there is sufficient evidence that the other act
in question actually occurred. Second, if so, the district court
must decide whether the evidence of the other act is probative
of a material issue other than character. Third, if the evidence
is probative of a material issue other than character, the
district court must decide whether the probative value of the
evidence is substantially outweighed by its potential
prejudicial effect. United States v. Haywood, 280 F.3d 715,
719-20 (6th Cir. 2002).
14 United States v. Jenkins No. 02-5573
In the present case, there is no doubt that the bad act
occurred; Jenkins freely admitted that she used crack cocaine.
Thus, the first step in the Rule 404(b) analysis is satisfied.
However, the Court finds that the second and third steps of
the analysis are not satisfied in this case, and therefore, the
district court abused its discretion in allowing the
Government to introduce evidence at trial of Jenkins’ prior
crack cocaine usage.
“Evidence of other acts is probative of a material issue
other than character if (1) the evidence is offered for an
admissible purpose, (2) the purpose for which the evidence is
offered is material or ‘in issue,’ and (3) the evidence is
probative with regard to the purpose for which it is offered.”
Id. at 720 (citing United States v. Johnson, 27 F.3d 1186,
1190-91 (6th Cir. 1994). Here, the Government asserts that
it introduced evidence of Jenkins’ past crack cocaine usage in
order to establish her knowledge that the express mail
packages which she was receiving on Ingram’s behalf
contained crack cocaine. Because Rule 404(b) explicitly
includes “knowledge” as a proper purpose for which other
acts evidence may be admitted, we find that the evidence was
offered for an admissible purpose.
Furthermore, we find that Jenkins’ knowledge as to the
contents of the express mail package was “in issue” during
the trial. “[P]rior bad acts are not admissible to prove
defendant’s knowledge unless defendant places his mental
state at issue or his knowledge of the [narcotics are] not
inferable from proof of possession itself.” United States v.
Jobson, 102 F.3d 214, 221 (6th Cir. 1996); see United States
v. Lash, 937 F.2d 1077, 1087 (6th Cir. 1991)(holding that
“[t]he district court had broad discretion to admit evidence of
crimes other than those charged or wrongful acts, pursuant to
Fed. R. Evid. 404(b), if those other crimes or acts are relevant
to intent or knowledge which are elements of the crime
charged.”).

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No. 02-5573 United States v. Jenkins 15
The Indictment returned against Jenkins charged her with
knowingly possessing, with the intent to distribute, fifty
grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a). Her defense at trial was that she did not know–and
the Government had failed to prove otherwise–that the
express mail package contained crack cocaine. Thus, Jenkins’
knowledge was “in issue” during her trial.
However, we do not believe that the Government’s
evidence regarding Jenkins’ prior crack cocaine usage is
probative of her knowledge as to the contents of the express
mail package, which would, in turn, establish her intentional
participation in the distribution of crack cocaine. This Court
has held that “‘acts related to the personal use of a controlled
substance are of a wholly different order than acts involving
the distribution of a controlled substance. One activity
involves the personal abuse of narcotics, the other the
implementation of a commercial activity for profit.’”
Haywood, 280 F.3d at 721 (quoting United States v. Ono, 918
F.2d 1462, 1465 (9th Cir. 1990). Thus, Jenkins’ admission
that she is a crack cocaine user does not ipso facto lead to the
conclusion that she was involved in the distribution of crack
cocaine.
Although the Government cites several cases in its brief in
support of its position that the district court correctly admitted
the other acts evidence, those cases are distinguishable in that
the pertinent other acts involved in those cases dealt with drug
distribution, not personal use as is the case here. See, e.g.,
United States v. Myers, 123 F.3d 350, 363 (6th Cir.
1997)(admitting the testimony of four different witnesses
concerning prior drug transactions with the defendant in order
to show his intent to distribute); United States v. Clemis, 11
F.3d 597, 601 (6th Cir. 1993)(admitting evidence of a prior
drug transaction identical to the transaction for which the
defendant was indicted in order to show his knowledge and
involvement in the drug conspiracy); Johnson, 27 F.3d at
1191 (admitting evidence of the defendant’s past drug sales
in order to show his intent to distribute cocaine); United
16 United States v. Jenkins No. 02-5573
States v. Feinman, 930 F.2d 495, 499 (6th Cir.
1991)(admitting testimony that the defendant was involved in
prior transportation of marijuana with the same participants
and the same mode of operation as charged in the indictment).
Likewise, the Court disagrees with the Government’s
theory that Jenkins’ responses to the questions posited by
Kramer are probative of her knowledge of the contents of the
express mail package(s). At trial, Kramer offered the
following testimony regarding a conversation which he and
Gibson had with Jenkins regarding her crack cocaine usage:
Q. And what did she tell you?
A. She did admit to us that she did smoke crack
cocaine, was a current user of crack cocaine.
Q. And did she say anything about whether or not this
Brian was a source of her crack cocaine?
A. We asked her that, and she said no. She got it from
some guy down the street and didn’t want to reveal
who that was.
Thus, contrary to the Government’s assertion, Jenkins’
response to Kramer’s questioning did not establish her
knowledge of the contents of the express mail package.
Jenkins did not acknowledge that she knew that Ingram was
a drug dealer; in fact, her response does not even suggest nor
could one reasonably infer that she knew him to be involved
in the distribution of crack cocaine. Accordingly, we find that
the district court abused its discretion in admitting into
evidence at trial Jenkins’ admission that she used crack
cocaine because the evidence was not probative of a material
issue at trial other than her character and propensity to
commit the charged offense.
We also find that the district court abused its discretion in
admitting into evidence at trial Jenkins’ admission that she

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No. 02-5573 United States v. Jenkins 17
used crack cocaine in the past because the probative value of
this evidence is substantially outweighed by the danger of
unfair prejudice. Fed. R. Evid. 403; see Haywood, 280 F.3d
at 723 (holding that “[p]robative ‘other acts’ evidence is
nevertheless inadmissible if the value of the evidence is
substantially outweighed by its potential prejudicial effect.”).
We reach this conclusion for three reasons.
First, as was the case in Haywood, the admission by the
district court of the fact that Jenkins had previously possessed
crack cocaine for personal use
“unquestionably [had] a powerful and prejudicial
impact.” Johnson, 27 F.3d at 1193. By “branding”
[Jenkins] as a criminal possessing crack cocaine, this
evidence had “the natural tendency to elicit the jury’s
opprobrium for [Jenkins].” United States v. Spikes, 158
F.3d 913, 929 (6th Cir. 1998). The evidence further
invited the jury to conclude that [Jenkins] “is a bad
person . . . and that if [s]he ‘did it [once] [s]he probably
did it again.’” Johnson, 27 F.3d at 1193.
Haywood, 280 F.3d at 723.
Second, as will be discussed infra, the evidence proffered
against Jenkins by the Government was weak, especially the
evidence presented regarding her alleged knowledge that the
express mail packages sent to her contained crack cocaine. In
fact, the only real evidence offered by the Government in
order to establish her knowledge came from the contested
Rule 404(b) evidence.
Third, given the substantial prejudice caused by the
admission of this other acts evidence, we do not believe that
the district court’s limiting instruction was a sufficient
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
18 United States v. Jenkins No. 02-5573
3W e will discuss, infra, whether the district court’s improper
evidentiary ruling requires us to reverse Jenkins’ conviction.
resulting from the needless admission of such evidence.” Id.
at 724.
For these reasons, we conclude that the district court abused
its discretion in admitting into evidence the fact that Jenkins’
had previously smoked crack cocaine.3
C. SUFFICIENCY OF THE EVIDENCE
Finally, Jenkins argues that the Government failed to
present sufficient evidence with which a reasonable jury
could have found her to be guilty of the charged offense.
Specifically, Jenkins asserts that the Government failed to
present substantial evidence that she was aware that the
express mail package which was sent to her home contained
crack cocaine. As stated supra, Jenkins contends that her
statement to Kramer (i.e., that she obtained her crack cocaine
from someone other than Ingram) was not probative on the
issue of whether she was aware that he was a crack cocaine
dealer and, thus, that the packages which she was receiving
on his behalf contained crack cocaine. Jenkins claims that the
fact that she received money in exchange for receiving an
unopened box at her residence is an insufficient basis upon
which to find her guilty of possession with the intent to
distribute crack cocaine. At most, Jenkins argues that the
Government showed that she may have thought that the
express mail packages contained something illegal, but it did
not prove that she knew that the packages contained cocaine
base.
The Government argues that it presented sufficient
evidence at trial in order to support Jenkins’ conviction. The
Government asserts that, during the trial, it offered evidence
that Jenkins received express mail packages at her home for
which she signed, and in return, Ingram paid her $50.00 per

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No. 02-5573 United States v. Jenkins 19
package. In addition, Jenkins lied to law enforcement officers
regarding the intended recipient of the package and, then,
recanted. When asked by Gibson about the package, Jenkins
responded, “What do you think it is?” Gibson responded, “I
know what it is. It is a delivery of drugs, illegal drugs. And
I am very surprised that you are the one that it is being
delivered to.” Jenkins replied, “Yeah.”
Furthermore, the Government offered: (1) Jenkins written
statement which she made at the Obion County Jail after her
arrest, (2) her admission that she was a crack cocaine user,
and (3) her statement that she obtained her crack cocaine from
someone other than Ingram. Viewing the evidence in a light
most favorable to it, the Government contends that a
reasonable jury could find Jenkins to be guilty, beyond a
reasonable doubt, of the charged offense.
This Court has held:
In determining whether the evidence supporting [the
defendant’s] conviction is sufficient, we must ask
“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Humphrey,
279 F.3d 372, 378 (6th Cir. 2002)(quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.2d
560 (1979)). We “view both circumstantial and direct
evidence in a light most favorable to the prosecution,”
id., and “we draw all available inferences and resolve all
issues of credibility in favor of the [factfinder’s] verdict,”
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
192 (2001), and cert. denied, 534 U.S. 936, 122 S. Ct.
306, 151 L. Ed.2d 228 (2001).
United States v. Wade, 318 F. 3d 698, 701 (6th Cir. 2003).
“‘A defendant claiming insufficiency of the evidence bears a
very heavy burden. . . . Circumstantial evidence alone is
20 United States v. Jenkins No. 02-5573
sufficient to sustain a conviction and such evidence need not
remove every reasonable hypothesis except that of guilt.’”
United States v. Stines, 313 F.3d 912, 919 (6th Cir.
2002)(quoting United States v. Warwick, 167 F.3d 965, 971
(6th Cir. 1999).
In the case sub judice, we find that, even when taking all of
the evidence in a light most favorable to the Government, the
Government did not present sufficient evidence at trial with
which a reasonable jury could have found Jenkins to be guilty
beyond a reasonable doubt of the charged offense. As noted
supra, the Indictment returned against Jenkins charged her
with knowingly and intentionally possessing, with the intent
to distribute, at least fifty grams of crack cocaine in violation
of 21 U.S.C. § 841(a)(1), and therefore, the district court
properly charged the jury that it must find, beyond a
reasonable doubt, that Jenkins knew that the contents of the
express mail package was cocaine base. See United States v.
Harris, 293 F.3d 970, 974 (6th Cir 2002)(listing the essential
elements which must be established in order to sustain a
conviction under 21 U.S.C. § 841(a)(1)).
Despite the jury’s finding to the contrary, we do not believe
that the Government presented sufficient evidence on this
element. In order to establish this element, the Government
relied principally upon the testimony of Kramer, who testified
that Jenkins had admitted that she was a crack user and that
she obtained her crack from someone other than Ingram, and
upon the testimony of Gibson, who testified about his
conversation with Jenkins regarding her receipt of the express
mail packages.
We have already concluded that the district court abused its
discretion in allowing Kramer to offer testimony regarding
Jenkins’ prior crack cocaine usage, and
we will presume that the district court’s error was
reversible unless we can say, “with fair assurance, after
pondering all that happened without stripping the

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No. 02-5573 United States v. Jenkins 21
erroneous action from the whole, that the judgment was
not substantially swayed by the error. . . .” Kotteakos v.
United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L.
Ed. 1557 (1946). Whether the jury was “substantially
swayed” by the improper admission of evidence of other
acts in a criminal trial generally depends on whether the
properly admissible evidence of the defendant’s guilt was
overwhelming.
Haywood, 280 F.3d at 724. Here, there was a clear absence
of evidence (let alone overwhelming evidence) establishing
Jenkins’ knowledge as to the contents of the express mail
packages. As such, the Court finds that, not only did the
district court abuse its discretion, it committed reversible
error in admitting evidence of Jenkins’ prior crack cocaine
usage.
The Government also points to Gibson’s testimony in order
to establish Jenkins’ alleged knowledge that the express mail
packages contained crack cocaine. At trial, Gibson testified
that he had the following colloquy with Jenkins at her home
on the day of her arrest:
Q. All right. And what happened when you and
Investigator – or Inspector Kramer went to the rear
bedroom with Ms. Jenkins?
A. Well, of course, she had been advised of her
constitutional rights not to make any statement once
the search warrant was presented and served. And
then she signed the consent to search. And once
myself and Inspector Kramer were in the back, I just
plainly asked her. I said, “Candy, what are you
doing here? What is this?”
And she said something like, “What do you think it
is?”
22 United States v. Jenkins No. 02-5573
And I said, “I know what it is. It’s delivery of
drugs, illegal drugs. And I’m very surprised you’re
the one it’s being delivered to.”
And she said, “Yeah.”
* * *
And I asked her if she knew what was in the
packaging. She said, “I didn’t.”
We believe that Jenkins’ responses to Gibson’s questions
were, at best, ambiguous; merely responding to a question
with a question and then later using the word, “Yeah” in
response to an assertion of fact does not constitute a sufficient
basis upon which the jury could glean Jenkins’ knowledge,
especially in light of the fact that Jenkins denied having
knowledge of the content of the express mail package
immediately after saying, “Yeah.”
Nevertheless, the Government’s argument does have some
support factually and from case law. It is true that Jenkins
received $50.00 per package from Ingram just for allowing
the express mail packages to be delivered to her home and
that Jenkins falsely told the law enforcement officers that the
express mail package at issue was for “Sarah Johnson.”
Moreover, in United States v. Calhoun, 49 F.3d 231 (6th Cir.
1995), this Court affirmed a conviction despite the
defendant’s denials as to her knowledge of the contents of a
package where she signed a false name when receiving a
package containing a kilogram of cocaine which she admitted
was for her live-in boyfriend, where she admitted that she
knew that her boyfriend sold drugs, and where she admitted
that her boyfriend’s drug money paid for the furniture in their
apartment. Id. at 233-34.
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

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No. 02-5573 United States v. Jenkins 23
denied knowing that Ingram was a drug dealer. Moreover,
the Government did not present any evidence with which to
conclude that Jenkins had an intimate relationship with
Ingram from which the jury could reasonably infer that she
knew that Ingram dealt drugs; on the other hand, the
defendant in Calhoun knew that the recipient of the package
(i.e., her live-in boyfriend) was a drug dealer. Finally, the
police did not find any other objects in Jenkins’ apartment
associated with criminal conduct, and she signed her own
name when receiving the express mail package. In contrast,
the defendant’s apartment in Calhoun was furnished by the
proceeds of her boyfriend’s drug trafficking, and she signed
a false name when receiving the package containing a
kilogram of cocaine.
Furthermore, although it is true that one’s suspicions might
be raised at the prospect of receiving $50.00 merely in
exchange for receiving a package at one’s home, mere
suspicion cannot sustain a verdict of guilt beyond a
reasonable doubt. See United States v. Pena, 983 F.2d 71, 72-
73 (6th Cir. 1993)(holding that even though a passenger in a
car carrying seventeen kilograms of cocaine suspected that
something illegal was going on, that suspicion did not prove
that she actually knew or intended to aid the driver in the
distribution of cocaine); see also United States v. Craig, 522
F.2d 29, 31-32 (6th Cir. 1975)(holding that “[i]t would be
highly conjectural and speculative indeed to conclude from
these facts [where the defendant drove a friend who was
carrying a closed box to an apartment for a drug sale, waited
for him, fled from the scene when law enforcement agents
arrived, abandoned his truck and shotgun, and eluded police
officers for two years] that Craig had knowledge of the
presence of drugs in the closed box . . . .”); see also United
States v. Hayter Oil Co., Inc. of Greenville, Tennessee, 51
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.’”).
24 United States v. Jenkins No. 02-5573
In sum, the express mail package recovered from Jenkins
on the day of her arrest was unopened. She consistently
denied having knowledge of the contents of the express mail
package, and even the law enforcement officials who
inspected the express mail package initially thought that it
contained marijuana, not crack cocaine. Kramer’s testimony
regarding Jenkins’ prior bad acts was inadmissible. And,
Gibson’s testimony, standing alone, regarding his
conversation with Jenkins as to the contents of the express
mail package is an insufficient basis upon which to ground a
conclusion that Jenkins knew that the express mail package
sent to her home contained crack cocaine and, therefore, that
she intentionally became involved in its distribution. In order
to sustain a conviction, the Government had to present
evidence that Jenkins knew that the express mail package
contained cocaine base (as opposed to some other illegal
substance or contraband), and the Government failed to
present sufficient evidence with which to establish Jenkins’
knowledge and her intent to distribute crack cocaine.
Accordingly, the Court finds that the Government failed to
present sufficient evidence with which a reasonable jury
could find Jenkins to be guilty beyond a reasonable doubt of
the charged offense. As such, Jenkins’ conviction is reversed.
D. SENTENCE
Because we reverse Jenkins’ conviction, we need not
address her argument that the district court erred in denying
her a two-level reduction, pursuant to U.S.S.G. § 3B1.2, in
her base offense level for being a minimal or minor
participant or her argument that the district court erred in
failing to sentence her pursuant to U.S.S.G. § 5C1.2 and
U.S.C. § 3553(f)’s safety-valve provisions.

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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.

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