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No error in refusal to tender 'missing witness' instruction

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The 7th Circuit Court of Appeals affirmed a man’s drug convictions, finding the District Court didn’t err by refusing to give the jury a requested “missing witness” instruction.

Lorenzo Tavarez was charged with two counts of distributing 50 grams or more of methamphetamine following two controlled drug buys at his apartment by a confidential informant. Before his trial, the CI disappeared and couldn’t be located by the prosecution or defense. She was the only person who had seen exactly what happened during the controlled buys leaving the government with only circumstantial evidence against Tavarez.

He requested the District Court give the jury the “missing witness” instruction, telling the jury that it could infer from the CI’s absence that the informant would have provided information unfavorable to the government’s case. The District Court declined.

Judge David Hamilton noted in United States of America v. Lorenzo Tavarez, No. 09-3879, that the missing witness instruction is disfavored in the 7th Circuit, but the District court had discretion to give it in unusual circumstances. Tavarez showed that even if called, the informant would have been able to provide relevant, noncumulative testimony on an issue in the case. But he couldn’t show that the CI was peculiarly in the other party’s power to produce. Neither the prosecution nor defense could locate the CI.

“And a witness’s status as a confidential informant does not necessarily give rise to a sufficient relationship with the government so as to render her unavailable to the defense,” wrote Judge Hamilton.

Tavarez couldn’t show the CI was available only to the government, so the District Court did not err in refusing the missing witness instruction.

The 7th Circuit also found a jury could have reasonably reached its guilty verdict based on the circumstantial evidence presented at trial. Most importantly, Tavarez’s fingerprint was found on one of the bags of drugs the CI provided to law enforcement.

"The case against Tavarez was not overwhelming. We can imagine innocent explanations for the fingerprint and the buy money in the men’s clothing,” wrote the judge. “But the ability to imagine an innocent explanation is not equivalent to harboring reasonable doubt. This circumstantial evidence was not so weak as to preclude a guilty verdict.”
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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