895 F.2d 406 (7th Cir. 1990), 88-2953, United States v. Andrews

Docket Nº:88-2953.
Citation:895 F.2d 406
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph Mark ANDREWS, Defendant-Appellant.
Case Date:February 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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895 F.2d 406 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Joseph Mark ANDREWS, Defendant-Appellant.

No. 88-2953.

United States Court of Appeals, Seventh Circuit

February 8, 1990

Argued Oct. 27, 1989.

As Amended Feb. 14, 1990.

Thomas M. Durkin, John N. Gallo (argued), Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Sheldon Nagelberg, Chicago, Ill., for defendant-appellant.

Before EASTERBROOK and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Joseph Mark Andrews, the defendant-appellant, appeals from the district court's entry of final judgment on the jury verdict finding him guilty of possession with intent

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to distribute 698.7 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). 1 On appeal, Andrews claims that the district court committed reversible error in failing to declare a mistrial over the defendant's objection. In addition, Andrews argues that his attorney's conduct was ineffective and deprived him of a fair trial because his attorney failed to maintain his motion for a mistrial over his client's own objection. 2 For the reasons discussed below, we affirm Andrews' conviction.


On March 21, 1988, soon after exiting from a train at Chicago's Union station, Joseph Mark Andrews was stopped by Officer Richard Boyle of the Chicago Police Department and Special Agent James Reed of the Drug Enforcement Administration (DEA). When asked for identification, Andrews produced a card identifying himself as "Joseph Mark." His one-way ticket, however, paid for in cash, was issued under the name "W. Johnson." After obtaining consent from Andrews, a search of the blue, nylon duffel bag he was carrying revealed its contents to include four packages containing a white powder. A subsequent analysis of the powder by DEA forensic chemist Ronald Wagenhoffer indicated that the packages contained 698.7 grams of nearly pure cocaine. Andrews was arrested and given his Miranda warnings. Through a custodial interrogation by DEA agent Norbert Kukstra, Andrews maintained his ignorance of the bag's illicit contents and indicated only that it must have been placed in his bag by a woman of Spanish descent.

Since Andrews' motion to quash his arrest and suppress the evidence of the cocaine found in his bag was denied by the district court, the government's case in chief was made out by the testimony of Officer Boyle, Agents Reed, Kuksta, and Wagenhoffer, and by the introduction of the seized cocaine. The defendant did not testify or present any witnesses or evidence. After listening to closing arguments and after being instructed by the district court, on June 7, 1988 at approximately 1:30 p.m. the jury retired to deliberate its verdict.

At 3:00 p.m., Judge Leinenweber summoned the government and defense counsel and read a disturbing note he received from the jury foreman which queried;

Should we have the police investigative report of the case? We do have it and one of us has looked at it.

This report, which the government revealed was inadvertently placed by Officer Boyle in the duffel bag, was a clearly inadmissible DEA investigative report which not only detailed the statements made by Andrews in connection with his arrest...

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