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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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