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United States v. Kitchen

June 7, 1995

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

ISIAH KITCHEN,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 89 CR 908--Allen Sharp, Chief Judge. *fn*

Before CUMMINGS, CUDAHY and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED FEBRUARY 16, 1995

DECIDED JUNE 7, 1995

Isiah Kitchen was associated with the El Rukn street gang. For activities arising out of that association, a grand jury charged Kitchen with the possession of cocaine with intent to distribute and with the possession of firearms by a felon. A jury convicted Kitchen of both offenses. Kitchen appeals, suggesting that the evidence is insufficient to support either conviction. We accept the jury verdict as to the conviction for the possession of the firearm. We believe, however, that the evidence was insufficient to support the conviction for the possession of cocaine. We therefore affirm in part and reverse in part.

I.

The police arrested Isiah Kitchen as part of an undercover narcotics operation. In March, 1989, undercover agents posing as drug dealers apprehended him during the course of a sale--also termed a "reverse buy"--of cocaine. Later that day, federal agents recovered two firearms from the house that Kitchen shared with his girlfriend. These events form the basis for Kitchen's convictions.

The specifics of the reverse buy are largely undisputed. The government engineered the setup by contacting Lawrence Griffin, a long-time acquaintance of Kitchen and an associate of the El Rukn street gang. Griffin was, at that time, incarcerated at the Cook County Jail. Griffin and Kitchen had several discussions over a three-month period. A number of these discussions proved to be fruitless, ultimately failing to result in a scheduled transaction. Griffin and Kitchen stayed in touch, however, with Kitchen able to page Griffin (actually federal agents) at a number Griffin had provided. Finally, Griffin and Kitchen agreed to a sale. Griffin told Kitchen that he would be released from prison soon, and that at that time, he would be able to deal narcotics. After further negotiations, Kitchen agreed to purchase two kilograms of cocaine from Griffin. The parties decided to transact the deal the next day for a total price of $28,000. Kitchen was to bring $14,000 to the deal, with Griffin "fronting" him the remainder of the cocaine for payment at a later date.

The next day, authorities removed Griffin from prison for the purpose of conducting the transaction. Griffin telephoned Kitchen. The two men agreed to meet at Montrose Harbor at 3:00 p.m. that afternoon. At the scheduled time, Griffin traveled to the Harbor with Special Agent Michael Casali, who was posing as a drug trafficker. Griffin and Casali waited for Kitchen to arrive. Kitchen arrived with an individual named Kenneth Dowdell and parked his car behind the undercover vehicle. Griffin and Casali entered Kitchen's vehicle. At that point, Kitchen and Dowdell produced $14,000 in cash in a series of envelopes. Kitchen left the cash with Dowdell and accompanied Casali to the location of the cocaine in order to "check the merchandise." Griffin and Dowdell stayed with the cash in Kitchen's vehicle. Another special agent, Eduardo Fernandez (Fernandez), was waiting at a different location with two kilograms of cocaine in the trunk of his car.

Casali and Kitchen pulled up to the right of Fernandez's car. The three men then met at the rear of that car, where Fernandez had popped the hatchback. A white garbage bag containing two kilograms of cocaine sat in the trunk. One of the agents opened the bag to reveal two packages of cocaine. The parties dispute exactly what happened next. Kitchen contends that he never touched the cocaine. The government suggests that Kitchen picked up one of the kilograms of cocaine for "two or three seconds." All agree that Kitchen made a comment expressing concern about the drug's purity--that he was worried about "slabs" (apparently one of the most desirable forms of cocaine). At that point, Casali and Fernandez placed Kitchen under arrest.

Following the arrest, agents served a search warrant on Mary Williams's residence in Chicago. The search uncovered a fully loaded .357 magnum revolver and a .9 millimeter semiautomatic handgun. Both weapons were found in a bedroom on the first floor of the residence. The .357 magnum was discovered in the bed area, leaning up against the back of the headboard. The .9 millimeter was recovered from a dresser drawer along with an additional magazine of ammunition.

In the same bedroom, agents found both men's and women's clothing, shoes and toiletries. They also found miscellaneous papers and invoices bearing the name "Ike Kitchen." Among these papers were some containing hand-written numerical figures like those on papers seized from Dowdell at the scene of the arrest. In addition, agents located a gold bracelet with Kitchen's El Rukn nickname lying on the dresser.

Whether Kitchen actually lived with Williams is the subject of some dispute. Kitchen claims to have been residing with his mother in Robbins, Illinois. He denies living with Williams and suggests that he only stayed overnight with her occasionally. The government points to evidence of Kitchen's presence at Williams's house. Kitchen apparently gave Williams's telephone number to Griffin, and was observed at Williams's address on a number of occasions. In ...


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