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USA v. Keith Collins, 09-2360.

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 should have granted a mistrial.

During deliberations, 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 Mustang 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.

IV. Motion for Mistrial

The district court acted reasonably by denying the motion for a mistrial. Generally, a mistrial is appropriate 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).  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 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.

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 discussed 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 compartment. 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 does not apply when a district court fails to provide admitted evidence to the jury in an evenhanded manner. See United States v. Salerno, 108 F.3d 730, 745 (7th Cir. 1997).

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 question. 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 photographs. The excluded map was a government exhibit, and for obvious reasons, the government introduced no evidence calling that map into question. Thus, the questions 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.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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