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October 18, 2005.


The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


Keith Collins and Gregory McNeal were charged with conspiracy to distribute, and to possess with intent to distribute, more than fifty grams of "cocaine base (commonly known as `crack cocaine')," as well as possession of more than fifty grams of that substance with intent to distribute. McNeal was also charged with possession of a weapon in relation to a narcotics crime, as well as unlawful possession of a weapon by a felon. Prior to trial, after holding an evidentiary hearing, the Court denied both defendants' motions to suppress the narcotics and other evidence on the ground that it had been obtained as the result of an unlawful seizure.

Shortly before trial, the government moved to sever the trials of the two defendants on the grounds that it wished to introduce against each defendant an inculpatory statement by that defendant that also implicated the other defendant. The defendants agreed to the motion for severance.

  Before trial, after extensive discussion, both defendants and the government agreed to a procedure under which a single trial of both defendants would be held, with a separate jury empaneled to hear each defendant's case. The trial was held in this District's ceremonial courtroom, which has two jury boxes. Each jury was advised that separate juries were being empaneled to ensure that each defendant received separate consideration of his case. Each jury was excused when opening statements and closing arguments on the other defendant's case were being presented (this resulted in the government giving separate opening statements and closing arguments for each defendant), and was also excused when evidence admissible only against the other defendant was admitted.

  Both defendants were convicted on all counts. Each has moved for a judgment of acquittal or for a new trial. Each has also raised a sentencing-related issue that intertwines, to some extent, with the issues raised in their post-trial motions.

  A. Motions for judgment of acquittal or new trial

  1. Issue specific to defendant Collins

  The closing arguments on Collins' case were delivered prior to the closing arguments on McNeal's case. Many of the exhibits offered by the government had been admitted against both defendants. During his closing argument, Collins' attorney made use of certain of the exhibits, including defense exhibits. The jury began its deliberations on Collins' case while closing arguments were presented to the jury in McNeal's case. The exhibits were not immediately sent back to the Collins jury, as the government intended to make use of a number of its exhibits during the McNeal closing arguments, and the Court wanted to provide the jury a complete set of the exhibits all at once, rather than sending them back piecemeal.

  Soon after it began its deliberations, the Collins jury requested a list of the exhibits. At the time, the exhibits were being used in the McNeal closing arguments, so the Court determined they would be made available to the Collins jury as soon as those arguments concluded. However, before the exhibits could be provided, the Collins jury advised that it had reached a verdict.

  Collins now objects that "[t]he procedure implemented in the double-jury trial deprived [him] of his right to due process by preventing him from presenting a full defense. Had Collins received a single jury trial, the jury would have received the exhibits and the guidance from the trial judge it requested." Collins Mem. at 3. This argument is without merit. Collins knowingly and voluntarily agreed to the double-jury procedure and thus waived the right to argue that the procedure violated due process. Collins may challenge the propriety of the jury's return of a verdict without having the trial exhibits, but his challenge is not evaluated any differently than it would be if he had been tried alone, without a co-defendant.

  When the jury retired to deliberate, Collins did not request that the jury be advised not to begin its deliberations until the exhibits were provided. Nor, when the jury requested the exhibit list, did Collins ask that the jury be told to put its deliberations on hold until the list and/or the exhibits could be provided. Under the circumstances, Collins has forfeited any objection to the jury's continuation of its deliberations, or to its return of a verdict, without having the exhibits in-hand. In any event, even after asking for the exhibit list, the jury was entitled to change its mind and return a verdict before it had the list or the exhibits. See United States v. Pickard, 278 F. Supp. 2d 1217, 1236 (D. Kan. 2003). Collins is not entitled to a new trial on this basis.

  2. Issues common to Collins and McNeal

  Both defendants make a number of conclusory assertions of error. For the most part, these arguments are so undeveloped that they are deemed forfeited and thus do not entitle either defendant to a new trial. See, e.g., United States v. Andreas, 150 F.3d 766, 769-70 (7th Cir. 1998). These include Collins' contentions that he was entitled to due process of law and did not receive a fair and impartial trial, and McNeal's boilerplate arguments that the Court erred in overruling unidentified objections to the jury instructions and in failing to give unidentified instructions, in denying unnamed oral motions before and during trial, and in overruling unspecified evidentiary objections.

  Both defendants argue that the Court should reverse its earlier ruling denying their motions to suppress evidence. McNeal identifies no new evidence that would warrant reconsideration; his motion is denied. Collins says that the trial testimony of co-defendant Rokesha Johnson, who testified as a government witness, establishes that evidence the Court relied upon in denying the pretrial motion to suppress was untrue. The Court disagrees; Johnson's testimony that a particular officer approached her after her vehicle was stopped and asked where a particular item was is not necessarily inconsistent with the officer's testimony at the pretrial hearing that he looked inside the vehicle and ...

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