Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 80-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Hamilton, Circuit Judge.
Before EASTERBROOK, Chief Judge, and BAUER and HAMILTON, Circuit Judges.
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 evidence of his gun ownership and certain cocaine sales should not have been admitted against him at trial, and 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 resentencing under Kimbrough.
Based on information that Collins was involved in cocaine distribution, the United States Drug Enforcement 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 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 conspiracy 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 unobstructed (but distant) view of Collins at the critical moments.
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 testified 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 occurred, but he did not take any photograph showing Collins holding the plastic bag of cocaine. His photographs 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 courtroom 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 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 concluded, 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 responded 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 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 ...