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UNITED STATES EX REL. CHI FENG SU v. CASEY

May 10, 1990

UNITED STATES OF AMERICA ex rel. CHI FENG SU, Petitioner,
v.
ROBERT F. CASEY, et al., Respondents


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE.

 Dr. Chi Feng Su ("Su") filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. section 2254 on June 5, 1989. The respondents *fn1" have answered the petition and Su's motion for judgment on the pleadings is now before the Court. The Court grants both the petition for writ of habeas corpus and the motion for judgment on the pleadings for the reasons set forth below. *fn1"

 I. PROCEDURAL HISTORY

 Su was indicted on 55 counts of unlawful delivery of a controlled substance in the Circuit Court of Kane County. Each count of the indictment charged delivery of a controlled substance to one of four undercover police officers. Counts 1 through 20 charged deliveries made to Agent Louise Gore. Counts 21 through 35 charged deliveries to Agent Joseph Benigno. Counts 36 through 40 charged deliveries made to Agent John Satriano. Finally, Counts 41 through 55 charged that Su made deliveries to each of the agents named above, as well as Agent Louise Jones. Each count of the indictment represented a separate delivery on either a date different from the dates indicated in the other counts or to a different agent, such that each count represented a separate delivery of a controlled substance. The State elected to prosecute Su on only counts 41 through 55 of the indictment, but introduced evidence as to all counts of the indictment "to establish Petitioner's motive, intent, method of operation and common scheme." (State's Brief, p.2) Following a bench trial in the Circuit Court of Kane County, Judge Nickels acquitted Su on all fifteen counts.

 The State then decided to prosecute Su on Counts 1 through 40 of the indictment. Su moved to dismiss the remaining counts of the indictment, but that motion was denied by Judge Nickels. Su appealed the denial of his motion to dismiss to the Illinois Appellate Court for the Second District, raising the following issues:

 
(1) Whether prosecution of the remaining counts of the indictment was barred by the doctrine of collateral estoppel.
 
(2) Whether prosecution of the remaining counts of the indictment would violate the constitutional or statutory prohibitions against double jeopardy.
 
(3) Whether compulsory joinder as provided in sections 3-3(b) and 3-4(b)(1) of the Illinois Criminal Code of 1961 barred prosecution of the remaining counts. Ill.Rev.Stat. ch. 38, para. 3-3(b) and 3-4(b)(1).

 The Illinois Appellate Court affirmed Judge Nickels' decision on March 30, 1989. Su then petitioned the Illinois Supreme Court for leave to appeal. The Illinois Supreme Court denied Su's petition on October 5, 1989.

 Su's petition for a writ of habeas corpus sets forth two grounds for relief, as follows:

 
1) The threatened second prosecution is barred by the doctrine of collateral estoppel.
 
2) The threatened second prosecution is barred by double jeopardy. *fn2"

 The relief requested in the petition is that this Court enjoin the criminal proceedings against Su in the ...


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