In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2360
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K EITH C OLLINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 80—Matthew F. Kennelly, Judge.
A RGUED A PRIL 1, 2010—D ECIDED M AY 10, 2010
BeforeEASTERBROOK, Chief Judge, and BAUER and
HAMILTON, Circuit Judges.
H AMILTON, Circuit Judge. A jury convicted appellant
Keith Collins of possessing crack cocaine with intent to
distribute it and of conspiring to do the same. Collins
argues that the district court erroneously denied his
motion to suppress the evidence against him, that evi-
dence of his gun ownership and certain cocaine sales
should not have been admitted against him at trial, and
2 No. 09-2360
that the district court should have granted a mistrial.
Also, when Collins was sentenced, the district court quite
reasonably believed that it could not consider the
disparity between the sentencing guidelines for crack
cocaine and powder cocaine when imposing sentence.
The parties agree that the Supreme Court’s decision in
Kimbrough v. United States, 552 U.S. 85 (2007), requires a
remand for resentencing. We affirm Collins’ convictions
but remand his case to the district court for resen-
tencing under Kimbrough.
The Facts
Based on information that Collins was involved in
cocaine distribution, the United States Drug Enforce-
ment Agency and Chicago Police Department began
surveillance of Collins and his alleged co-conspirator
Gregory McNeal. During that surveillance on January 24,
2003, DEA Special Agent William Warren radioed that
he had observed Collins leave McNeal’s residence and
place a large plastic bag of what he thought was crack
cocaine inside a black Ford Mustang driven by Collins’
girlfriend Rokesha Johnson. The officers promptly arrested
Collins and searched the Mustang, discovering a bag
containing 673 grams of crack cocaine behind the driver’s
seat. A search of Collins revealed another small bag of
crack cocaine. Upon questioning by Agent Warren,
Collins confessed that he and McNeal had conspired to
process and distribute crack cocaine over the past
several months, and he admitted placing the cocaine in
the Mustang. Collins also stated that he was delivering
No. 09-2360 3
the smaller bag of cocaine for sale to a nearby customer.
Collins was indicted for possessing more than 50 grams
of crack cocaine with intent to distribute and with con-
spiracy to do the same, with the conspiracy alleged to
have occurred between approximately August 2002 and
the day of Collins’ arrest.
Before trial, Collins moved to suppress the evidence
seized in the course of his arrest. At the hearing on that
motion, Agent Warren testified that he had set up surveil-
lance in an unmarked car approximately 50 yards south
of the home where McNeal cooked the crack cocaine. To
aid in his surveillance, Warren used a pair of binoculars
and a camera with a telephoto lens. Warren was in
regular contact with other law enforcement officers
via radio, but he was the only individual with an unob-
structed (but distant) view of Collins at the critical mo-
ments.
Warren testified that on the day in question, he
observed Collins leave McNeal’s house carrying a large
brown paper bag. Collins walked to the passenger side
of the Mustang, opened the passenger door, and pulled a
clear plastic bag from inside the paper bag. Warren testi-
fied that, despite his distance from Collins, he recognized
the substance inside the bag as crack cocaine. Collins then
leaned into the passenger compartment of Johnson’s
Mustang, placed the plastic bag inside, closed the door,
and walked away. According to Warren, Collins was at
the Mustang for approximately a minute, and the bag
of cocaine was visible for only a few seconds.
Warren took photographs of these events as they oc-
curred, but he did not take any photograph showing
4 No. 09-2360
Collins holding the plastic bag of cocaine. His photo-
graphs show Collins approaching the Mustang with a
large paper bag, leaning inside the Mustang, and then
walking away with the paper bag. Chicago police officer
Andrew Marquez, who was aiding in the surveillance
that day, corroborated Warren’s statements, however,
testifying that Warren had radioed seeing Collins place
a bag of cocaine into the Mustang. The defendants did
not offer any conflicting testimony in the suppression
hearing. The district court found Agent Warren’s
account of events credible and denied Collins’ motion.
The case against Collins then proceeded to trial. Collins
and McNeal were tried jointly, but because Collins’
confession had implicated McNeal, the case was tried
before two juries simultaneously. During the trial, one
jury sometimes needed to be excused from the court-
room during the presentation of evidence inadmissible
against the defendant whose case it was considering.
During the government’s case-in-chief, the bag of crack
cocaine was admitted into evidence, and Agent Warren
testified regarding the events surrounding Collins’ arrest
and confession. Warren also testified that firearms and
ammunition were recovered from Collins’ residence.
Pursuant to a plea agreement, Johnson testified against
Collins, stating that she had dated Collins from
June 2002 to the time of his arrest and that she had seen
him sell cocaine approximately every other day during
that time. Johnson explained that on the day of Collins’
arrest, he had asked her to drive to McNeal’s residence.
When she arrived there, Collins came to the passenger
No. 09-2360 5
side of her Mustang with a brown paper bag, opened the
passenger door, and placed a bag of crack cocaine in the
back passenger compartment. Johnson also testified that
Collins kept a gun under his mattress at home and that
he had used a gun to shoot at a rat in an alley. Collins
rested without calling any witnesses or presenting
any evidence.
Because Collins and McNeal were tried jointly but to
different juries, two sets of closing arguments were
given, one to each jury. The closing arguments in Collins’
case were first. His jury then began its deliberations
while closing arguments were made to McNeal’s jury.
Before the closing arguments in McNeal’s case con-
cluded, Collins’ jury sent a note to the judge asking to
see a copy of a police report, if it had been admitted
into evidence, and requesting a list of the exhibits that
were admitted into evidence. The district judge re-
sponded that the report had not been admitted into
evidence and that an exhibit list would be provided
once McNeal’s closing arguments had concluded. A short
time later, before the promised exhibit list was made
available, Collins’ jury informed the court that it had
reached its verdict.
Around this time, Collins’ counsel realized that some
exhibits that had been admitted into evidence—a map
and photographs of a car similar to Johnson’s Mus-
tang—had not been provided to the Collins jury for use
during its deliberations. The defense had used these
exhibits to challenge Warren’s credibility, arguing that they
showed that Warren had significantly understated the
6 No. 09-2360
distance from which he had conducted his surveillance
and that Collins could not have simply leaned inside
the two-door Mustang without moving the passenger-
side seat out of the way. Collins moved for a mistrial.
The court denied the motion, noting that the jury
knew how to request any exhibits it wished to review
and that the jury was aware that a list of exhibits would
be provided later that day. The court then received
the jury’s verdict, which found Collins guilty on
all charges.
Collins later filed a post-trial motion renewing his
motion to suppress in light of the evidence presented
at trial and again requesting a new trial because not
all of the admitted evidence was made available to the
jury. The court denied the motion.
At sentencing, the district court determined that the
applicable crack cocaine Guidelines range for Collins’
offense was 188 to 235 months. The court also observed
that the range was much higher than it would have
been if Collins had been charged with conspiracy to
distribute the same amount of powder cocaine. Collins
argued that the court could take this sentencing
disparity into account when determining a reasonable
sentence. The district judge disagreed: “I don’t believe
it’s really an open issue in this circuit . . . for me to take
that disparity into account in imposing a sentence. The
Seventh Circuit has essentially said that since Booker . . . .”
(This statement at the time of Collins’ sentencing in
late 2005 anticipated our decision in United States v.
Miller, 450 F.3d 270, 275-76 (7th Cir. 2006), which barred
No. 09-2360 7
district courts from mitigating the 100-to-1 powder-to-
crack ratio because that ratio in the Guidelines reflected
Congressional policy. The Supreme Court’s decision in
Kimbrough v. United States, 552 U.S. 85, 108 (2007), abro-
gated that holding in Miller and held that sentencing
courts are not obliged to follow the 100-to-1 ratio when
imposing sentences in crack cocaine cases.) Accordingly,
the district court declined to take the Guidelines
disparity into account and sentenced Collins to a below-
Guidelines sentence of 144 months in prison. Collins
now appeals his conviction and sentence.1
Analysis
I. The Motion to Suppress
Collins first argues that the district court erred by
denying his motion to suppress and by crediting Agent
Warren’s testimony. Warren was the only law enforce-
ment officer who claimed to have seen Collins with the
incriminating bag of cocaine, so probable cause for Collins’
arrest (and the suspicion for the stop of Johnson’s Mus-
tang) depended on Warren’s credibility. To challenge
Warren’s credibility, Collins points out, among other
1
Most cases with Kimbrough issues have been resolved long
before now, but this appeal is actually Collins’ second direct
appeal from his conviction. This second appeal was allowed
after Collins prevailed on his post-conviction claim that his
first appellate counsel provided only ineffective assistance.
See United States v. Collins, 510 F.3d 697 (7th Cir. 2007).
8 No. 09-2360
things, that none of the photographs actually show him
with the plastic bag of cocaine, and he argues that
Warren was too far away to recognize the substance in
the bag. The government argues that Warren’s use of
binoculars and a camera with a telephoto lens enabled
him to observe the rather large bag of cocaine even at a
distance, and that Warren’s failure to photograph
Collins with the cocaine was explained by the camera’s
slow mechanism and the fact that he was juggling the
camera, the binoculars, and two radios.
We review a district court’s factual determinations on
a motion to suppress for clear error. United States v.
Burnside, 588 F.3d 511, 516-17 (7th Cir. 2009), citing United
States v. Mosby, 541 F.3d 764, 767 (7th Cir. 2008). Particular
deference is given to credibility determinations, which
will not be disturbed unless “completely without founda-
tion.” United States v. Salyers, 160 F.3d 1152, 1162 (7th
Cir. 1998), citing United States v. Ferguson, 35 F.3d 327, 333
(7th Cir. 1994). Finding the facts can be very difficult in
cases like this, and appellate courts add little to the
task, even if the trial court has credited testimony
that might seem improbable at first. Unless the trial court
has credited testimony that is contrary to the laws of
nature or so internally inconsistent or implausible on
its face that no reasonable factfinder would credit it, we
defer to the trial court’s finding. See United States v.
Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990).
We cannot conclude that the district court’s credibility
assessment completely lacked foundation. Our review
of the proverbial cold record indicates that some aspects
No. 09-2360 9
of Warren’s testimony seem unlikely, such as his ap-
parent ability to identify crack cocaine at a great dis-
tance. Yet his uncontradicted testimony did not rise
to the level of impossibility. Although Warren observed
the crack cocaine at a substantial distance, his vision
was aided by binoculars or his camera’s telephoto lens.
Furthermore, much of Warren’s story was corroborated
by his photographs, as well as the testimony provided
by Johnson and Officer Marquez.
The record shows that the district judge fully under-
stood the issue and gave close attention to the evidence.
Taken as a whole, the record reveals a difficult question
of credibility that the district judge ultimately resolved
in the government’s favor. Collins and the other defen-
dant offered no evidence contradicting Agent Warren’s
testimony. There are at least two plausible interpreta-
tions of the record, and the district court’s choice of the
interpretation Collins disfavors did not amount to clear
error. See Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985) (“Where there are two permissible views of
the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”); United States v. Sainz-
Preciado, 566 F.3d 708, 713 (7th Cir. 2009), quoting United
States v. Hatten-Lubick, 525 F.3d 575, 580 (7th Cir. 2008).
II. Evidence of Firearm Possession
Collins objects to the government’s introduction of
evidence that he possessed and used (for the mundane
purpose of shooting at a rat in an alley) two handguns
and ammunition. Collins argues that this evidence was
10 No. 09-2360
unfairly prejudicial and should have been excluded
under Federal Rule of Evidence 403.
Under Rule 403, relevant evidence may be excluded if
it is so unfairly prejudicial that it will cause the jury to
decide the case on an improper basis rather than on the
evidence. See United States v. Pulido, 69 F.3d 192, 201
(7th Cir. 1995), quoting United States v. Vretta, 790 F.2d
651, 655 (7th Cir. 1986). Because Collins did not object to
this evidence at trial, we review only for plain error. We
could reverse only if exclusion of the evidence “probably
would have resulted in an acquittal.” United States v.
Rangel, 350 F.3d 648, 650 (7th Cir. 2003), citing United States
v. Krankel, 164 F.3d 1046, 1052 (7th Cir. 1998). Plain
error review poses a particular challenge for Collins’
Rule 403 argument because he must show that the
evidence was so “obviously and egregiously prejudicial”
that the trial court should have excluded it even with-
out any request from the defense. See United States v.
LeShore, 543 F.3d 935, 939 (7th Cir. 2008).
Collins cannot overcome the obstacle posed by the plain-
error standard of review. The evidence regarding his
possession of guns and ammunition was only slightly
prejudicial, if at all. The trial testimony indicated only
that Collins owned guns, one of which he had used to
shoot at a rat. Furthermore, Collins’ counsel elicited
testimony on cross-examination indicating that Collins
possessed the guns legally. Millions of Americans law-
fully possess and use firearms, and they have a constitu-
tional right to do so. See District of Columbia v. Heller, 128
S. Ct. 2783, 2799 (2008). This testimony was relevant, see,
e.g., United States v. Rhodes, 229 F.3d 659, 661 (7th Cir. 2000),
No. 09-2360 11
citing United States v. Wyatt, 102 F.3d 241, 248 (7th Cir.
1996), and it was not so prejudicial as to have met the
plain-error standard. The government did not use this
evidence in an unfair manner, such as to show that
Collins was a danger to the community, though it
pointed out that guns are tools of the drug trafficking
trade. See Anderson v. Sternes, 243 F.3d 1049, 1055 (7th
Cir. 2001) (concluding that a court would be “hard
pressed” to find unfair prejudice where, “in discussing
the weapons during trial and in closing argument, the
government focused only on its theory about the
relevance of the weapons; the government did not
argue that Anderson was a bad person because he kept
guns”). The admission of this evidence against Collins
was not so prejudicial as to constitute plain error.
III. Evidence of Crack Cocaine Sales
Collins also objects to Johnson’s testimony that, during
the course of their relationship, she observed him sell
crack cocaine on numerous occasions. Collins initially
objected to this testimony on the grounds of a lack of
foundation and the difficulty of cross-examining Johnson.
On appeal, Collins raises a new objection that this testi-
mony constituted evidence of prior bad acts made inad-
missible by Federal Rule of Evidence 404(b).2 As a result
2
In passing, Collins’ brief makes a perfunctory mention of the
need for Rule 403 analysis of this evidence, but he did not
develop that argument. As we have said numerous times,
(continued...)
12 No. 09-2360
of defendant’s shift in the argument, our review is for
plain error. United States v. Wynn, 845 F.2d 1439, 1442
(7th Cir. 1988), citing United States v. Laughlin, 772 F.2d
1382, 1392 (7th Cir. 1985).
Collins has not shown plain error. First, the bulk of the
cocaine sales that Johnson described—those that took
place between August 2002 and the time of Collins’
arrest—occurred during the time frame of the charged
conspiracy and are not “prior bad acts” as that term is
understood. Cf. United States v. Macedo, 406 F.3d 778, 792
(7th Cir. 2005) (applying Rule 404(b) analysis to evi-
dence of drug sales made nine years before charged
offense). Rather, these sales were evidence of the very
drug distribution conspiracy with which Collins was
charged. Rule 404(b) did not apply. E.g., United States
v. Alviar, 573 F.3d 526, 538 (7th Cir. 2009) (“When evi-
dence is embraced by the conspiracy in the indictment,
the court need not resort to Rule 404(b) analysis.”);
United States v. Watts, 535 F.3d 650, 659-60 (7th Cir. 2008)
(rejecting defendant’s Rule 404(b) challenge to evidence
of defendant’s acts in furtherance of conspiracy as border-
ing on frivolous). Johnson’s testimony about these sales
was properly permitted.
Johnson’s testimony about drug sales during her rela-
tionship with Collins also included cocaine sales in
June and July of 2002, shortly before the first specific
2
(...continued)
undeveloped arguments are deemed waived on appeal.
E.g., United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).
No. 09-2360 13
date of the charged conspiracy. Even if these sales might
have been subject to Rule 404(b) analysis, and even if their
admission might have been plainly erroneous (which
we doubt), we could not conclude that this testimony
prejudiced Collins. The evidence of Collins’ guilt—the
crack cocaine itself, Agent Warren’s testimony, Johnson’s
testimony corroborating Warren’s testimony and im-
plicating Collins in the conspiracy, and Collins’ own
confession—was overwhelming. As a result, even if this
portion of Johnson’s testimony might have been admitted
in error, it was merely cumulative. Its exclusion would
not have made an acquittal probable. See Rangel, 350 F.3d
at 650.
As a final note, in the course of his Rule 404(b) argument,
Collins complains that nothing explicitly connected any
of these drug sales with the charged conspiracy. Even if
we were to construe this as an argument that Johnson’s
testimony lacked a proper foundation, we note that “no
rule of evidence requires a ‘foundation’ ” and that the
rules of evidence generally make all relevant evidence
admissible. A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d
630, 637-38 (7th Cir. 2001). This evidence of Collins’ active
crack cocaine distribution during and just before the
time of the alleged conspiracy was relevant to show his
involvement in the conspiracy. It is theoretically possible
that Collins’ sales observed by Johnson were entirely
separate from his admitted conspiracy with McNeal, but
that theoretical possibility did not prohibit admission of
this evidence.
14 No. 09-2360
IV. Motion for Mistrial
Collins argues that the district court erred when it
denied his motion for a mistrial after it was discovered
that the map and photographs of a Mustang resembling
Johnson’s car were not provided to the jury during its
deliberations. Without every defense exhibit readily
available to the jury, Collins contends, the jury was
unable to consider properly his arguments challenging
Agent Warren’s credibility. We review the denial of Col-
lins’ motion for an abuse of discretion. United States v.
Magana, 118 F.3d 1173, 1183 (7th Cir. 1997), citing United
States v. Best, 939 F.2d 425, 429, 431 (7th Cir. 1991)
(en banc).
The district court acted reasonably by denying the
motion for a mistrial. Generally, a mistrial is appro-
priate when an event during trial has a real likelihood
of preventing a jury from evaluating the evidence fairly
and accurately, so that the defendant has been deprived
of a fair trial. See, e.g., United States v. Curry, 538 F.3d
718, 727 (7th Cir. 2008), citing United States v. Danford, 435
F.3d 682, 686 (7th Cir.2006). When deciding whether a
mistrial is warranted because admitted evidence was
not provided to the jury, “a new trial is required if there
is a reasonable possibility that a party is prejudiced by
the district court’s failure to provide certain exhibits to
the jury, even if the exhibits are properly admitted.”
Deicher v. City of Evansville, 545 F.3d 537, 543 (7th Cir. 2008).
It is possible, of course, to imagine some circumstances
in which even the inadvertent omission of certain
evidence from the jury room could plausibly have such
No. 09-2360 15
an effect. Based on the facts of this case, however, we
are confident that the omission of these exhibits did
not prejudice Collins by impeding the jury’s ability to
consider fairly and accurately the information contained
in them.
Absent some special circumstance, a failure to make an
exhibit available to a jury during deliberations is no
cause for a mistrial, particularly when the trial was short
and the information is such that it “should be fresh in
the jurors’ minds.” Deicher, 545 F.3d at 545, citing United
States v. Guy, 924 F.2d 702, 708 (7th Cir. 1991). Collins’ trial
was relatively short, making it unlikely that the jury
had forgotten over time that these particular exhibits
had been admitted at trial. Collins’ counsel had dis-
cussed the exhibits during closing arguments, which had
served to refresh the jurors’ memories earlier that same
day. And it is not as if the missing exhibits contained
information that the jury could not readily recall without
the aid of the exhibits themselves. The map was used to
argue that Agent Warren’s testimony was unreliable
because he had actually observed Collins from a greater
distance than he had described. The pictures were used
to argue that Warren’s account of events was incomplete
(and therefore unreliable) because he never mentioned
that Collins had moved the Mustang’s front passenger
seat to place the cocaine in the car’s rear passenger com-
partment. The absence of either exhibit from the jury
room did not prevent the jury from considering these
common sense arguments so as to deny Collins a fair trial.
The general rule stated in Deicher and Guy does not
apply when a district court fails to provide admitted
16 No. 09-2360
evidence to the jury in an evenhanded manner. See
United States v. Salerno, 108 F.3d 730, 745 (7th Cir. 1997);
United States v. Hofer, 995 F.2d 746, 749 (7th Cir. 1993);
United States v. Samples, 713 F.2d 298, 303 (7th Cir. 1983).
The cases Collins cites only reflect this exception. In
Deicher, for example, the judge had provided the jury
with information supporting the defendant’s theory
but had refused to allow the jury to review an exhibit
that supported the plaintiff’s contrary theory. 545 F.3d
at 544. Similarly, in United States v. Garza, the district
court had allowed the jury to review a letter admitted
into evidence regarding the terms of a plea agreement
but had refused to permit the jury to review seven
defense exhibits calling that letter’s accuracy into ques-
tion. 574 F.2d 298, 300 (5th Cir. 1978). Here, however,
there is no concern that the evidence provided to the
jury reflected only the government’s theory of the case.
No evidence was admitted to contradict the photo-
graphs. The excluded map was a government exhibit, and
for obvious reasons, the government introduced no
evidence calling that map into question. Thus, the ques-
tions of fairness and balance in Garza and Deicher are
simply not present in this case. The district court did not
abuse its discretion by denying Collins’ motion for a
mistrial.
V. Sentencing
Finally, the parties agree that resentencing is necessary
because the district court believed that it could not take
into account the disparity between the Sentencing Guide-
No. 09-2360 17
lines advisory ranges for powder and crack cocaine
when determining Collins’ sentence. Legal developments
after Collins’ sentencing revealed that the district court
erred, not through any fault of its own, but by following
or anticipating this court’s decisions before the Supreme
Court’s decision in Kimbrough authorized district courts
to consider the disparity when exercising their discretion
under 18 U.S.C. § 3553(a). See 552 U.S. at 108. Because
Collins raised the sentencing disparity at sentencing,
and because we cannot determine with any certainty
whether the district court would have sentenced Collins
differently if it had been aware of its discretion under
Kimbrough, a remand for resentencing is warranted. See
United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008)
(remanding crack cocaine sentence for reconsidera-
tion under Kimbrough).
We A FFIRM Collins’ convictions and R EMAND his case
to the district court for resentencing.
5-10-10