United States v. Kitchen

858 F. Supp. 782, 1994 U.S. Dist. LEXIS 10405, 1994 WL 393818
CourtDistrict Court, N.D. Illinois
DecidedJuly 25, 1994
DocketNo. 89 Cr 908
StatusPublished
Cited by2 cases

This text of 858 F. Supp. 782 (United States v. Kitchen) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kitchen, 858 F. Supp. 782, 1994 U.S. Dist. LEXIS 10405, 1994 WL 393818 (N.D. Ill. 1994).

Opinion

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge, Sitting by Designation.

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 33.1 Fed.R.Crim.P. 33 provides:

[784]*784The court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice.... A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.

See Federal Rules of Criminal Procedure Rule 38. In evaluating a motion under Fed. R.Crim.P. 33 to set aside a verdict on the basis of newly discovered evidence, “[cjourts 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.2” Second, the defendant argues [785]*785that 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 “[b]ecause 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 t]he 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. Tray-lor “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. “[T]he 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.

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Related

Isiah Kitchen v. United States
227 F.3d 1014 (Seventh Circuit, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
858 F. Supp. 782, 1994 U.S. Dist. LEXIS 10405, 1994 WL 393818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kitchen-ilnd-1994.