The opinion of the court was delivered by: Herndon, District Judge
Before the Court is defendant James E. Rollins, Jr.'s Motion for New Trial (Doc. 450),*fn1 filed pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33, to which the Government has filed its opposing Response (Doc. 454).
Rollins, Jr. was found guilty by a jury as to Counts 1 and 5 (Docs. 414 & 417) of the Indictment (Doc. 1). Count 1 charged Rollins, Jr. with conspiracy to knowingly and intentionally manufacture, distribute, and possess with intent to distribute cocaine and a mixture or substance containing cocaine base, in the form of, or commonly known as "crack" cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A) and 21 U.S.C. § 846. Count 5 charged him with knowingly and intentionally distributing five hundred grams or more of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B).
Regarding the jury's finding of "guilty" as to Count 1, the Special Verdict found Rollins, Jr. guilty of conspiring to distribute 500 grams or more but less than 5 kilograms of a mixture or substance containing cocaine base (Doc. 415). However, in a separate Special Verdict also regarding Count 1, the jury did not find Rollins, Jr. guilty of conspiracy to distribute 5 grams or more of a mixture or substance containing cocaine base, in the form of, or commonly known as, "crack" cocaine (Doc. 416). As to Count 5, the Special Verdict found Rollins, Jr. guilty of knowingly and intentionally distributing 500 grams or more of a mixture or substance containing cocaine (Doc. 418). Rollins, Jr. now awaits sentencing for his conviction, as well as resolution of this post trial motion.
Under FEDERAL RULE OF CRIMINAL PROCEDURE 33, a defendant may move for a new trial. Upon review, the Court "may vacate any judgment and grant a new trial if the interest of justice so requires." FED.R.CRIM. P. 33(a). If the basis for seeking a new trial is not due to new evidence, then the Court must determine if a new trial is warranted because there exists a "reasonable possibility that a trial error had a prejudicial effect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)). A new trial may also be warranted where a "trial errors or omissions have jeopardized the defendant's substantial rights." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989) (citing United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989)). Such a determination is completely within the Court's sound discretion . Id. (citing United States v. Nero, 733 F.2d 1197, 1202 (7th Cir. 1984)). However, the Court should be mindful that the power bestowed by Rule 33 to grant a new trial should only be done in the "most 'extreme cases.'" United States v. Linwood, 142 F.3d 418, 422 (7th Cir.1998) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir.1990)).
According to Rollins, Jr., justice requires that a new trial be granted because "errors committed in connection with the trial of this case and the evidence admitted during the course thereof," denied him a fair trial (Doc. 450, p. 1). This Rule 33 Motion is made pursuant to five separate grounds, each to be addressed herein.
Rollins, Jr. first states that the Court erred by denying his Amended Motion to Sever Trial (Doc. 262), made pursuant to FEDERAL RULES OF CRIMINAL PROCEDURE 8 and 14. Specifically, Rollins, Jr. asserts that statements made by co-defendant Rollins, Sr. (his father) were introduced as evidence during the trial and served to implicate him. Further, because his father was a co-defendant, Rollins, Jr. was unable to confront Rollins, Sr. as a "witness," thereby violating Rollins, Jr.'s right to due process (Doc. 450, pp. 1-2, citing Bruton v. United States, 391 U.S. 123 (1978)). Rollins, Jr. also believes that by not severing his trial from his co-defendants, it was impossible for the jury to "compartmentalize the evidence" as it related to each co-defendant and it therefore could not make independent determinations of guilt. Instead, Rollins, Jr. advocates that the jury essentially applied a "guilt by association," line of reasoning, which a severance of trials could have avoided. Additionally, Rollins, Jr. states that had his trial been severed, he would have been able to call his co-defendants as witnesses to offer "critical exculpatory evidence and testimony" on his behalf. However, due to their privilege against self-incrimination, Rollins, Jr. was prevented from calling them as witnesses (Doc. 450, pp. 1-2).
In response, the Government contends that the "implicating" statement of Rollins, Sr., introduced as evidence during trial, does not present a problem under Bruton; the statement, which was actually Rollins, Sr.'s post-arrest statement, was "thoroughly redacted" so as to not reveal Rollins, Jr.'s identity. Moreover, the Government notes that a limiting instruction was given to the jury, cautioning that the statement was only to be considered against Rollins, Sr. Therefore, the Government asserts there would be no need for Rollins, Jr. to confront Rollins, Sr. on cross-examination concerning the post-arrest statement. As to Rollins, Jr.'s assertion of the jury's inability to make independent determinations of guilt, the Government states that the law presumes otherwise (Doc. 454, p. 2, citing United States v. Williams, 858 F.2d 1218, 1225 (7th Cir. 1988)). In support, the Government points to the fact that the verdicts for each of the five co-defendants in this case were "very individualized." Lastly, in opposition of Rollins, Jr.'s belief that his co-defendants may have given exculpatory testimony, the Government points to his failure to cite exemplars from the record or give any other detailed explanation in support of his blanket assertion. In other words, the Government argues Rollins, Jr. did not meet the standard warranting a severance of trial -- he has not shown actual prejudice. It is not enough to merely opine that a separate trial would have presented him with better odds at an acquittal (Doc. 454, p. 3, citing United States v. Lopez, 6 F.3d 1281, 1285 (7th Cir. 1993)).
Regarding Rollins, Jr.'s argument that a new trial is warranted because the Court erred in failing to sever his trial from his co-defendants, the Court agrees with the Government. As stated in the Court's December 18, 2006 Order (Doc. 267) denying Rollins, Jr.'s Amended Motion to Sever, the co-defendants were properly joined pursuant to Rule 8. Therefore, Rollins, Jr. needed to show how joinder would be prejudicial to him, as joint trials are generally favored (Doc. 267, p. 3). The Court noted that the law places a "heavy burden" upon a defendant to show prejudice. Rollins, Jr. was required to "demonstrate that he . . . would be unable to obtain a fair trial without a severance" (Id. at 4, citing Lopez, 6 F.3d at 1285).
Rollins, Jr.'s arguments regarding failure of the jury to make independent determinations of guilt and the possibility of co-defendants offering exculpatory testimony merely rehash arguments he made in his Amended Motion to Sever (Doc. 267). In his Motion, Rollins, Jr. offered nothing but conclusory statements of this exculpatory testimony his co-defendants would offer if his trial was severed. The Court previously found this argument to be, at best, "entirely speculative" and completely devoid of evidentiary support (Id. at 5, citing United States v. Studley, 892 F.2d 518, 525 (7th Cir. 1989)(A severance cannot be granted on the basis of a vague, unsupported assertion that a co[-]defendant would testify ...