United States v. Jenkins

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 18, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-30429
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AVERY V. JENKINS, SR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-168-ALL-R
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Avery V. Jenkins, Sr., appeals his convictions of bank
robbery using a dangerous weapon and discharge of a firearm
during a crime of violence. Jenkins argues that the district
court should have excluded a gun recovered from the residence of
Jenkins’s wife and testimony regarding the discovery of the gun
under FED. R. EVID. 403 because such evidence misled the jury.
“Relevant evidence is inherently prejudicial; but it is only
unfair prejudice, substantially outweighing probative value,”

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No. 04-30429
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that permits exclusion under Rule 403. United States v. Pace,
10 F.3d 1106, 1115-16 (5th Cir. 1993). Rule 403 “is not
designed to permit the court to ‘even out’ the weight of the
evidence, to mitigate a crime, or to make a contest where there
is little or none.” United States v. McRae, 593 F.2d 700, 707
(5th Cir. 1979).
Because the probative value of the challenged evidence was
not substantially outweighed by the dangers addressed by Rule
403, we have determined that the district court did not abuse its
discretion in admitting the evidence. See Pace, 10 F.3d at 1115-
16; FED. R. EVID. 403. We have also determined that any error, if
it occurred, was harmless. See United States v. Howell, 664 F.2d
101, 105-06 (5th Cir. 1981).
AFFIRMED.

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