USA v. Lorenzo Tavarez, 09-3879.
Based on information provided by a confidential informant, appellant Lorenzo Tavarez was arrested and charged with two counts of distributing methamphetamine. Despite the informant's unexplained absence at trial, a jury convicted Tavarez on all charges.
Tavarez now argues that the district court erred by refusing to give the jury a requested "missing witness" instruction and that, without the informant's testimony, the evidence was insufficient to sustain his conviction.
In early 2008, a confidential informant advised law enforcement that Tavarez was selling methamphetamine. To help corroborate this information and build a criminal case against Tavarez, the informant was asked to make two controlled drug buys at Tavarez's apartment while under police surveillance.
Tavarez was charged with two counts of distributing 50 grams or more of methamphetamine in violation of 21 U.S.C. ยง 841(a)(1) and (b)(1)(A)(viii). Before he could be tried, the confidential informant disappeared without a trace. Attempts by both the prosecution and the defense to locate her were unsuccessful.
This was problematic, of course; only the informant had seen exactly what had occurred during the controlled buys, leaving the government with only circumstantial evidence against Tavarez. This circumstantial evidence proved to be enough, however, for a jury to convict Tavarez on both counts of the indictment.
Missing Witness Instruction
Tavarez first argues that the district court erred by refusing to give the jury what is known as a "missing witness" instruction.
Tavarez requested that the court give this instruction telling the jury that it could infer from the informant's absence that the informant would have provided information unfavorable to the government's case. The district court declined to provide this instruction, reasoning that the informant was equally unavailable to both the prosecution and the defense.
Generally, our review of a decision whether or not to give a particular jury instruction is for an abuse of discretion. United States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005). The district court declined to give the missing witness instruction because it concluded that such an instruction was inappropriate as a matter of law, however, so our review is de novo. Id.
The missing witness instruction is disfavored in this circuit, but a district court has discretion to give it in unusual circumstances. See United States v. DiSantis, 565 F.3d 354, 364 (7th Cir. 2009).
Before the accused in a criminal case would be entitled to the instruction, he would need to show (1) that if called, the witness would have been able to provide relevant, non-cumulative testimony on an issue in the case; and (2) that the witness was peculiarly in the other party's power to produce. United States v. Mahone, 537 F.2d 922, 926-27 (7th Cir. 1976).
The first element was satisfied here. Only the confidential informant actually observed what happened during the controlled buys. Her testimony regarding those observations certainly would have been relevant. Id. at 927 (noting that a missing witness instruction is inappropriate if the witness's testimony is either cumulative or irrelevant).
The second element, however, simply cannot be met when a confidential informant disappears and cannot be located by either party.
A witness is peculiarly within a party's power to produce if she either (1) is physically available to only that party; or (2) has such a relation-ship with one party as to effectively make her unavailable to the opposing party, regardless of actual physical availability. Id. at 926.
Here the informant was physically unavailable to both the government and Tavarez-both parties tried and failed to locate her.
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. See United States v. Rollins, 862 F.2d 1282, 1298 (7th Cir. 1988). That is true even when, as was the case here, the government never provided the informant's contact information to the defense. United States v. Pizarro,717 F.2d 336, 346 (7th Cir. 1983).
Tavarez failed to show that the confidential informant was available only to the government. The district court therefore did not err by refusing the missing witness instruction.
AFFIRMED.
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