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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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