U.S. Court of Appeals for the Eighth Circuit, 1973

United States v. Albert Ray Kitchen

U.S. Court of Appeals for the Eighth Circuit · Decided June 27, 1973 · Gibson, Lay, Ross

480 F.2d 1222; 1973 U.S. App. LEXIS 9153 (Federal Reporter, Second Series)

Counsel

David P. Murrin, Minneapolis, Minn., for appellant., J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Cases that cite this one

7 later published cases cite this decision.

James Turner, Jr. v. Donald W. Wyrick, Warden (8th Cir. 1979)
United States v. Albert Ray Kitchen (8th Cir. 1973)
Turner v. Wyrick (District Court, E.D. Missouri 1978)
United States v. Oliver Webster (8th Cir. 1974)
Walter Floyd Little v. United States (8th Cir. 1974)
People v. Gower (Appellate Division of the Supreme Court of New York 1974)
United States v. James G. Barnes (8th Cir. 1973)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

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.

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