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UNITED STATES v. KITCHEN

February 22, 1993

UNITED STATES OF AMERICA
v.
ISIAH KITCHEN



The opinion of the court was delivered by: ALLEN SHARP

 The undersigned Judge was responsible for the trial of this defendant in Chicago, Illinois during seven trial days between December 1 and 10, 1992. That trial resulted in a jury verdict on Counts 56 and 62 of guilty. The defendant has filed post-trial motions and the United States Attorney has responded to the same. Such are now ripe for ruling.

 This defendant was ably represented by an experienced and highly professional criminal defense lawyer who was appointed to defend him. That lawyer's performance in the eyes of this court fully complies with the mandates for effective counsel under the Sixth Amendment of the Constitution of the United States, as explicated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This court has had the advantage of a full transcript of the proceedings of this trial and is able to examine the contentions and arguments that are made against the backdrop of the record in this case.

 By explicit agreement, this defendant and the United States Attorney agreed with the court to a procedure whereby 16 jurors would be seated with the government having eight peremptory challenges and the defendant having 12 peremptory challenges. Under that procedure, 16 jurors were initially seated, including three who were of the same race as this defendant. In no remote way did the United States Attorney violate any of the values in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). During the course of the trial for various reasons readily apparent in the record, it was necessary to excuse a total of four jurors, the last of whom was excused by explicit agreement and the other three were excused without objection by the defendant.

 It needs to be said that both the defendant and the United States of American failed to use all of the peremptory challenges that were available to them. It also needs to be said that most of the issues that are now raised on behalf of this defendant are not ones that were specifically preserved by specific objections during the course of this trial. It is also readily apparent that this defense lawyer knows exactly how to make specific objections and preserve arguable reversible error when he wants to. He did not do so with reference to the selection of the jury. He did not do so with regard to any contentions regarding publicity.

 In paragraph 12 of his post-trial motion filed January 11, 1993, the defendant now complains with reference to the procedures adopted in excusing Juror Klepper and Juror Edenton. This court excused both of them in the interest of great caution, particularly Edenton, who wanted to stay. No objection to this excusal or any mistrial motion was made by the defendant. He did, however, want all of the jurors to be questioned on what they may have heard Mr. Klepper say about his wife's concerns for his safety. This court determined that it could not fairly make additional inquiry of the entire jury without doing more harm than good to this defendant. Honoring the defendant's request would have spread the fear of Mr. Klepper's wife to the entire jury unnecessarily. The whole well would have been poisoned. This court remains convinced that its decision on this matter worked to the advantage of the defendant.

 This court is all too familiar with Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961), and was personally acquainted over many years with both the lawyer and the judicial participants in that judicial drama. This court is also well aware of the values involved in Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966), and Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965). None of the circumstances in this case with reference to publicity in any way come even close to being in tension with the constitutional values that are involved in the Irvin-Estes-Sheppard line of decisions. In addition to not making any specific record and objection with regard to the newspaper publicity referred to, it also needs to be emphasized that unlike those three cases, none of the publicity here was in any way directly and explicitly related to this defendant. In fact, as far as this court knows from the record, there was no mention whatsoever of this defendant's name in any of the publicity. What was mentioned often and in a highly negative fashion was the name of the assistant United States attorney who was prosecuting this case. It is not an overstatement on the basis of what is on the record in this case to say that Mr. Hogan was being severely trashed in the Chicago media, both in print and on television. However, none of the stories that this court is aware of in the record mentioned in any way this defendant or this trial. It takes more than that to make a constitutionally unfair trial based upon publicity. It is not beyond reality, given the nature of the publicity, that indeed the publicity may well have enured to the benefit of this defendant by creating image, credibility and integrity problems for this federal prosecutor. In any event, the court is absolutely convinced that with regard to the jury selection and publicity issues, nothing relevant was preserved and even it had been, there is no basis to undermine the decision and verdict in this case.

 This defendant, represented by highly competent counsel, made a decision to take the stand and testify. If memory serves, this court admonished counsel of the decision by Judge, now Justice, Stevens in Ledford v. United States, 525 F.2d 84 (7th Cir. 1975). This court is well aware of the values of Ledford since it was its obligation to retry the case on remand. This court drew a tight line on the federal prosecutor's ability to impeach this defendant by prior criminal offenses. The record will support such a conclusion.

 This jury along with this Judge had an opportunity to see and hear this defendant's testimony and to weigh his credibility and believability. To the extent that this verdict is based upon a rejection of the basic believability and credibility of this defendant, this court would have arrived at precisely the same conclusion had it been sitting without a jury. The determination of credibility is at the very heart of the jury's function under the Sixth Amendment of the Constitution of the United States. When this defendant's testimony is weighed and considered along with all of the other testimony in the case, there is a firm factual foundation for both verdicts in this case. The key element that was argued as to both charges was the element of possession: in one case, the possession of a firearm and in the other case, a possession of a controlled substance. The evidence as to those elements of possession as to those two charges is clearly sufficient given the inference in favor of those verdicts which prevail at the end of all of the case. Under Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979), and its more recent progeny, Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir. 1990); Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir. 1987), cert. denied, 485 U.S. 967, 99 L. Ed. 2d 438, 108 S. Ct. 1239 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir. 1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867, 98 L. Ed. 2d 142, 108 S. Ct. 190 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 98 L. Ed. 2d 256, 108 S. Ct. 296 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 U.S. 843, 108 S. Ct. 133, 98 L. Ed. 2d 90 (1987), a rational trier of fact, in this case a 12-person jury, could well have determined beyond a reasonable doubt that this defendant was guilty of both of the offenses with which he was charged and upon which he went to trial.

 There can be no doubt that so-called "reverse buy" controlled substance cases are honored in this circuit. United States v. Sanders, 979 F.2d 87 (7th Cir. 1992); United States v. Aguilar, 948 F.2d 392 (7th Cir. 1991), and United States v. Ramos, 932 F.2d 611 (7th Cir. 1991). The factual setting of each of these cases has close parallels in this record. Also, Ramos, Cea, and Sanders raise sentencing issues that may arise here. To be sure, there are conspiracy issues there that are not present here as a result of rulings made by this court adverse to the prosecution.

 This court does not conceive that the Assistant United States Attorney intentionally placed perjured testimony before the jury in this case as prohibited in United States v. Kaufmann, 783 F.2d 708 (7th Cir. 1986), nor in violation of Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). See also Ross v. Heyne, 638 F.2d 979 (1980).


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