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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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