The opinion of the court was delivered by: BERNARD A. FRIEDMAN
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL OR JUDGMENT OF ACQUITTAL
On April 8, 1992, a jury found defendant guilty of being a felon in possession of a handgun in violation of 18 U.S.C. § 922(g). This matter is presently before the court on defendant's motion for a new trial or a judgment of acquittal pursuant to Fed. R. Crim. P. 29 and 33.
Defendant was arrested on October 9, 1991, on 67th Place between Blackstone and Dorchester Avenues in the Woodlawn neighborhood of Chicago, Illinois. While riding a bicycle southbound from 66th Place, defendant passed an unmarked police car with two uniformed officers inside. The officers called to defendant, but he continued riding, turning westbound against traffic onto 67th Place. The officers turned their car around and pursued defendant.
While defendant was riding on 67th Place, he set off a car alarm. Defendant testified that he pushed off of the car, while the officers testified that the alarm was set off when he threw down a handgun that bounced off of the hood of the car.
Defendant testified that he was wearing a Starter brand jacket with pockets so small he had to make a fist in order to fit his hands into them, and that it would be impossible for him to hold a gun in the pocket. Defendant further testified that the jacket was not returned to him after he turned it over to Cook County Jail personnel.
Don Kim, owner of the store where defendant bought the Starter jacket, testified that all of the jackets he sold had a sports team logo. Defendant testified that his jacket had no team logo. Burton Bradley, the vice-president of the Starter company, brought a sample jacket with him to court. The government demonstrated that the handgun fit in the jacket with the smallest pockets.
Defendant has moved for a new trial or for judgment of acquittal on the grounds that he has been deprived of his right to an impartial jury, the court's denial of juror challenges for cause was improper, certain evidence should not have been admitted, and the government failed to prove defendant guilty beyond a reasonable doubt.
A. Racial Composition of the Jury and Panel
Defendant, who is African-American, asserts that he has been deprived of his right to be tried by an impartial jury. This contention is based on the fact that the 40-member jury panel contained only two African-Americans. Defendant has submitted statistics showing that certain communities within the Northern District of Illinois are 14.9% African-American,
and argues that a panel that is only 5% African-American does not represent a fair cross section of the community.
Defendant argues that whites, especially from the suburbs, are incapable of understanding African-American experiences or culture, and that therefore the jury in this case was not fair and impartial. However, the only constitutional requirement is that a jury be fair, not representative. "The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)." Holland v. Illinois, 493 U.S. 474, 480, 107 L. Ed. 2d 905, 110 S. ...