USA v. Clarence Hendrix, 05-3644.   A jury convicted defendant Clarence Hendrix one count of distributing at least fifty grams of crack cocaine.  The district court sentenced Hendrix to 240 months of imprisonment, a mandatory minimum based on his prior felony drug conviction. 

The conviction arose out of a drug transaction with a confidential informant. Hendrix appeals, arguing among other things, that he was entitled to a missing witness jury instruction after the confidential informant failed to testify. 

Specifically, Hendrix argues that he was entitled to a new trial or a missing witness instruction because the government failed to call confidential informant Gee as a witness. The government anticipated calling Gee and represented this to the court and the jury, but elected not to do so after Gee initially balked at testifying and the government learned of his recent heroin use.  Hendrix seems to argue that these circumstances and the government’s breach of an alleged promise that Gee would testify are so unusual that the "interest of justice" requires a new trial. Fed. R. Crim. P. 33(a).

The district court denied Hendrix’s motion for a new trial.  The Seventh Circuit states that if is understandable that the defense would prefer to cross- examine C/I Gee.  All of this, however, could have been accomplished by Hendrix’s attorney on direct examination. Similarly, the defense had the opportunity to address Hendrix’s contention that the recorded references to "the same thing" did not refer to drugs by eliciting this from Gee as a defense witness.  In short, Gee was in the courthouse and available to speak with and testify for the defense. While the defense was understandably wary of presenting Gee as its witness, he was present and waiting in the event they chose to call him.

Hendrix further pursues Gee’s failure to testify by suggesting that he should have received the benefit of a missing witness instruction.  A missing witness instruction is warranted if "the absent witness was peculiarly within the government’s power to produce; and [if] the testimony would have elucidated issues in the case and would not merely have been cumulative."  U.S. v. Brock, 417 F.3d 692 (7th Circuit 2005)

In this case, Gee was available for the defense to call, and was therefore not "peculiarly within the government’s power to produce." Id. Thus the defense did not meet the requirements for a missing witness instruction. Id.

In conclusion, the Seventh Circuit discerns no error, plain or otherwise, under these circumstances.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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