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July 25, 1994



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. On December 10, 1992, the defendant, Isiah Kitchen, was found guilty by a jury trial of Counts 56 and 62 of Indictment No. 89 CR 908. Count 56 charged the defendant with possession of 2006 grams of a mixture containing cocaine, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count 62 charged the defendant with possession of two firearms, having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

 The defendant filed a motion pursuant to Federal Rule of Criminal Procedure Rule 33. *fn1" Fed.R.Crim.P. 33 provides:

 See Federal Rules of Criminal Procedure Rule 33. In evaluating a motion under Fed.R.Crim.P. 33 to set aside a verdict on the basis of newly discovered evidence, "courts exercise great caution . . . because of the importance accorded to repose, regularity of decision-making, and conservation of judicial resources." United States v. Young, 20 F.3d 758 (7th Cir. 1994) (citing United States v. Kamel, 965 F.2d 484, 490 (7th Cir. 1992)). In evaluating a Fed.R.Crim.P. 33 motion, the Seventh Circuit "has established a four-part test a defendant must satisfy to establish his right to a new trial." Id. "Specifically, the defendant must show that the evidence upon which he relies: (1) came to his knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a new trial." Id. (quoting Jarrett v. United States, 822 F.2d 1438, 1445 (7th Cir. 1987)).

 In moving for a new trial under Fed.R.Crim.P. 33, the defendant raises two claims in his motion. First, the defendant asserts that witness Lawrence Griffin received unauthorized payments in the form of witness fees that constituted "undisclosed benefits." *fn2" Second, the defendant argues that government caused the arrest of a potential defense witness Mary Williams, which eventually prevented Mary Williams from testifying on behalf of the defendant.

 On the first claim, the government argues that "because more than seven days have passed since the jury's verdict in this case, the only new-trial motion under Fed.R.Crim.P. 33 now open to defendant is a motion for a new trial based on the ground of newly discovered evidence." See Government's Response to Defendant's Motion to Reconsider Post-Trial Motions Based on Newly Discovered Evidence. Specifically, the government argues that the defendant's "first contention--that witness Griffin received unauthorized payments constituting benefits undisclosed to the defense at trial--is not based upon newly discovered evidence." Id.

 On this issue, the government maintains that "'newly discovered evidence' is evidence that 'came to the defendant's knowledge only after trial.'" Id. (quoting United States v. Leibowitz 857 F.2d 373, 380 (7th Cir. 1988)). To assert this claim, the government explains, the defendant relies on three sources of information and the sources do not meet this definition of newly discovered evidence. The government argues that the FBI 302's, the schedule and postponement procedures in the trial dates, and Mr. Griffin's witness-fee vouchers all fail to meet the definition insofar as the "first and third items were tendered to the defendant at trial on December 10, 1992 and the other item, Kitchen's trial schedule, obviously was known to [the defendant] and his counsel before trial." Id.

 Although this court is inclined to agree with the government on whether this evidence qualifies as newly discovered evidence, this court finds that an evaluation centered upon the question of whether the evidence would lead to an acquittal in a new trial is dispositive.

 In United States v. Young, supra, a jury convicted the defendant Young of "conspiracy to possess with intent to distribute cocaine and of attempted possession with intent to distribute one kilogram of cocaine, violations of 21 U.S.C. §§ 841(a)(1) and 846." Id. At the trial, the jury heard the testimony of a indicted coconspirator named Traylor. Traylor "withdrew his plea of not guilty and pled guilty to the conspiracy count of the indictment." Id. "As part of his plea agreement, Traylor agreed to cooperate with the government and testify against Young." Id.

 Prior to defendant Young's trial, "the government conducted a computer search of both the National Crime Information Center and the Illinois CCH databases for any criminal history of Traylor." Id. Additionally, the government checked with the FBI and local law enforcement authorities and questioned Traylor about this issue. "The inquiry revealed only a 1990 misdemeanor shoplifting charge. . . ." Id. "The government disclosed Traylor's plea agreement and the results of its criminal history searches to [the defendant] before trial." Id.

 Subsequent to the conviction, through the efforts of the U.S. Probation Office, the government discovered that Traylor had a criminal record in the state of Mississippi. The government informed the defendant of this discovery and the defendant filed for a new trial under Fed.R.Crim.P. 33. The defendant's "primary argument on appeal is that he should have been granted a new trial because of the late discovery of Traylor's Mississippi criminal record." Id.

 Initially, in evaluating this claim, the Seventh Circuit reviewed the language of Fed.R.Crim.P. 33 and the four-part test requisite to Fed.R.Crim.P. 33 motions. In evaluating this claim, the Young court, speaking through Judge Eschbach, revisited the findings of the district court:

The district court focused on whether Young satisfied the third and fourth prongs of the test. With regard to the materiality of the new evidence and the probability of acquittal, the district court found:
The evidence against Young in this case was not limited to Traylor's testimony. The purchase of cocaine from an undercover DEA agent was on videotape and showed Young's active involvement in the transaction. There was also testimony from the DEA agent. Moreover, defense counsel was able to impeach Traylor based on his admitted involvement in the drug transaction and his self-interest in getting a reduced sentence by testifying against Young. Even assuming that Traylor could have been impeached on the basis of the grand larceny conviction and one or two additional Mississippi convictions, that would only be cumulative impeachment evidence. It ...

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