United States v. Albert Ray Kitchen

Eighth Circuit

United States v. Albert Ray Kitchen

480 F.2d 1222, 1973 U.S. App. LEXIS 9153

CourtCourt of Appeals for the Eighth Circuit

DecidedJune 27, 1973

Docket73-1094

StatusPublished

Cited by7 cases

This text of 480 F.2d 1222 (United States v. Albert Ray Kitchen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Albert Ray Kitchen, 480 F.2d 1222, 1973 U.S. App. LEXIS 9153 (8th Cir. 1973).

Pincite

Opinion

ORDER

This cause having been briefed and argued and submitted to this court on its merits on June 12, 1973, is hereby remanded to the trial court for an evidentiary hearing consistent with United States v. Pollard, 8 Cir., 479 F.2d 310, order filed May 18, 1973.

The record demonstrates that the government at a pretrial proceeding assured both the court and defendant that the informant, Sammy Floyd, would be available to testify at trial. The record shows that Floyd did not appear at trial and the trial court excused the government from producing informant on the government’s statement that Floyd’s whereabouts were unknown at the time of trial. The record demonstrates that Floyd may have possessed material knowledge relating to the defendant’s participation in the charge of his distributing cocaine on September 24, 1971.

Therefore in accordance with Pollard, we remand the cause

“ ‘to the trial court for the [limited] purpose of holding a further hearing at which the government shall be given the opportunity of proving if such be the case, that it was genuinely unable through reasonable efforts to produce [Floyd] and also, if such be the case, that the government did not take steps to see to it that [Floyd] would be or become unavailable as a witness. The burden of proving these things should be on the government.’ ”

• The court upon remand may hear such evidence as it deems necessary and proper, and then shall certify its findings to this court.

Free access — add to your briefcase to read the full text and ask questions with AI

ORDER

This cause having been briefed and argued and submitted to this court on its merits on June 12, 1973, is hereby remanded to the trial court for an evidentiary hearing consistent with United States v. Pollard, 8 Cir., 479 F.2d 310, order filed May 18, 1973.

The record demonstrates that the government at a pretrial proceeding assured both the court and defendant that the informant, Sammy Floyd, would be available to testify at trial. The record shows that Floyd did not appear at trial and the trial court excused the government from producing informant on the government’s statement that Floyd’s whereabouts were unknown at the time of trial. The record demonstrates that Floyd may have possessed material knowledge relating to the defendant’s participation in the charge of his distributing cocaine on September 24, 1971.

Therefore in accordance with Pollard, we remand the cause

“ ‘to the trial court for the [limited] purpose of holding a further hearing at which the government shall be given the opportunity of proving if such be the case, that it was genuinely unable through reasonable efforts to produce [Floyd] and also, if such be the case, that the government did not take steps to see to it that [Floyd] would be or become unavailable as a witness. The burden of proving these things should be on the government.’ ”

• The court upon remand may hear such evidence as it deems necessary and proper, and then shall certify its findings to this court.

Cite This Page — Counsel Stack

Bluebook (online)

480 F.2d 1222, 1973 U.S. App. LEXIS 9153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-albert-ray-kitchen-ca8-1973.

Opinion

Related

Cite This Page — Counsel Stack