United States v. Isiah Kitchen
57 F.3d 516, 1995 WL 338551 (1995)
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Rule of Law:
Momentary physical handling of contraband for inspection during an incomplete transaction is insufficient to establish the dominion and control required for legal possession. However, constructive possession of a firearm can be established by showing it was seized at the defendant's residence, even if that residence is shared with others.
Facts:
- Isiah Kitchen, an associate of the El Rukn street gang, negotiated over a three-month period with an incarcerated government informant, Lawrence Griffin, to purchase two kilograms of cocaine.
- Kitchen agreed to buy the cocaine for $28,000, bringing $14,000 in cash to the deal, with the remainder to be 'fronted' to him.
- Kitchen and an associate, Kenneth Dowdell, met Griffin and an undercover agent, Michael Casali, at a prearranged location.
- Kitchen and Dowdell produced $14,000 in cash, which remained with Dowdell while Kitchen went with Agent Casali to inspect the cocaine in a separate vehicle.
- At the second car, an agent displayed two kilograms of cocaine in the trunk.
- Kitchen briefly picked up one of the kilograms for 'two or three seconds' and made a comment expressing concern about its quality.
- Following Kitchen's arrest at the scene, federal agents executed a search warrant on the residence of his girlfriend, Mary Williams.
- The search uncovered two firearms in a bedroom containing men's clothing, papers with Kitchen's name, and a bracelet bearing his El Rukn nickname.
Procedural Posture:
- A federal grand jury charged Isiah Kitchen with possession of cocaine with intent to distribute and possession of firearms by a felon.
- The case was tried before a jury in a federal district court, which is the court of first instance.
- The jury returned a verdict convicting Kitchen on both counts.
- Kitchen, as the appellant, appealed his convictions to the United States Court of Appeals for the Seventh Circuit, arguing the evidence was insufficient to support either conviction.
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Issue:
Does a defendant's momentary physical handling of contraband for two to three seconds during an inspection, as part of an incomplete 'reverse buy' drug transaction, constitute sufficient evidence to establish legal 'possession' under 21 U.S.C. § 841(a)(1)?
Opinions:
Majority - Cudahy, Circuit Judge
No, a defendant's momentary physical handling of contraband for inspection during an incomplete drug transaction does not, without more, constitute legal possession. On the firearm conviction, the evidence was sufficient for a finding of constructive possession. On the cocaine charge, the evidence was insufficient. The court reasoned that possession, whether actual or constructive, requires that the defendant have dominion and control over the object. Here, the drug transaction was incomplete; money had not changed hands, and Kitchen had not verbally assented to the deal or taken any unequivocal action to accept delivery, such as placing the drugs in a bag or vehicle. His brief handling of the cocaine was consistent only with inspection by a prospective buyer, not an exercise of control. The court distinguished this from attempted possession, noting that Kitchen's intent to purchase, while clear, is not a substitute for the element of control required for a possession conviction. In contrast, the evidence for the firearm conviction was sufficient because numerous personal items established Kitchen's residence at the house where the guns were found, supporting a finding of constructive possession, which can be joint and does not require physical presence at the time of seizure.
Analysis:
This decision significantly clarifies the legal line between actual possession and attempted possession, particularly within the context of government-orchestrated 'reverse buy' operations. The court establishes that mere physical contact with contraband is not a per se act of possession; there must be an accompanying 'unequivocal act' demonstrating the defendant's acceptance of control. This ruling raises the evidentiary burden for the prosecution in such cases, requiring proof of more than just a defendant's inspection of illicit goods. It provides a crucial defense for individuals who may have been exploring a potential transaction but had not yet committed to it, thereby preventing the crime of attempt from being improperly elevated to the completed offense of possession.
