USA v. Michael Wright No. 12-3425
Michael Wright was convicted of cocaine distribution and sentenced to 150 months’ imprisonment. At trial, the informant did not testify, but the government presented evidence of conversations in which Wright, in response to the informant’s inquiries, admitted to stocking up drugs for sale.
On appeal, Wright argues that the district court should have told the jury that it could draw an adverse inference against the government because it did not call the informant to the stand. But the primary purpose of the missing witness instruction is to address situations where the defendant was unfairly deprived of the opportunity to elicit favorable testimony, and here, Wright fails to show that the informant would have given such helpful testimony in the first place.
Missing Witness Instruction Was Not Required Because Wright Did Not Want the CI to Testify
Wright argues that the first prong was satisfied because the CI was the only individual other than Wright that witnessed the March 3 transaction. But he fails to make any non-speculative showing that the CI’s testimony would have actually been helpful to him.
“[The defendant] must show that the witness was under the power of the government and that the missing witness'[s] testimony would have been helpful, that is, both relevant and non-duplicative.”; see United States v. Villegas, 655 F.3d 662, 671 (7th Cir. 2011).
The primary purpose of the instruction is to address situations where a defendant is unfairly deprived of the opportunity to elicit favorable testimony (whether because the witness was physically unavailable or—asWright argues in this case—”pragmatically” unavailable, United States v. Foster, 701 F.3d 1142, 1155 (7th Cir. 2012) .
If no favorable testimony is out there, then a missing witness instruction serves no legitimate purpose—at least Wright fails to identify one in this case. All that is left, as the district court correctly said, is gamesmanship. The district court’s denial of the instruction for these reasons was not an abuse of discretion.
For the above-stated reasons, we AFFIRM Wright’s conviction.
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