In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3879
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ORENZO T AVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 08 CR 102—William T. Lawrence, Judge.
A RGUED S EPTEMBER 21, 2010—D ECIDED N OVEMBER 15, 2010
Before B AUER, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Based on information pro-
vided 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
2 No. 09-3879
testimony, the evidence was insufficient to sustain his
conviction. We affirm.
Background
In early 2008, a confidential informant advised law
enforcement that Tavarez was selling methamphetamine.
To help corroborate this information and build a crim-
inal case against Tavarez, the informant was asked to
make two controlled drug buys at Tavarez’s apartment
while under police surveillance. Prior to each con-
trolled buy, a law enforcement officer searched the infor-
mant and her car to make sure she was not hiding
any guns, money, or drugs of her own. Each time, the
informant entered Tavarez’s apartment building, spent
a short time inside, then returned with a quantity of
methamphetamine. No money changed hands during
the first buy; the informant was instructed to pay for
the drugs during the second buy and a follow-up visit
using $6,000 in cash provided by law enforcement.
Tavarez was charged with two counts of distributing
50 grams or more of methamphetamine in violation of
21 U.S.C. § 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 prob-
lematic, 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
No. 09-3879 3
be enough, however, for a jury to convict Tavarez on
both counts of the indictment. Tavarez now appeals.
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 govern-
ment’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 discre-
tion. 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, how-
ever, 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), citing United States v.
Brock, 417 F.3d 692, 699 (7th Cir. 2005). Before the
accused in a criminal case would be entitled to the in-
struction, 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
4 No. 09-3879
power to produce. United States v. Mahone, 537 F.2d 922,
926-27 (7th Cir. 1976).1
The first element was satisfied here. Only the confiden-
tial informant actually observed what happened during
the controlled buys. Her testimony regarding those ob-
servations certainly would have been relevant. Cf.
Mahone, 537 F.2d 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.
See, e.g., United States v. Easley, 977 F.2d 283, 286 (7th Cir.
1
We have often described the first element as requiring that
the witness have been able to “elucidate” an issue at trial. E.g.,
United States v. Christ, 513 F.3d 762, 773 (7th Cir. 2008). The
verb has stuck during the more than one hundred years since
the Supreme Court first used it in this context. See Graves v.
United States, 150 U.S. 118, 121 (1893) (reversing criminal
conviction where government had commented on defendant’s
supposed failure to bring his wife to court so she could be
identified by government witnesses).
No. 09-3879 5
1992) (“The rule is that a defendant is not entitled to
a ‘missing witness’ instruction where a government
witness is equally unavailable to the opposing parties.”);
United States v. Pizarro, 717 F.2d 336, 346 (7th Cir. 1983)
(noting that missing witness instruction is inappropriate
if the witness was physically unavailable to both par-
ties). 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), citing United States v. Bramble, 680
F.2d 590 (9th Cir. 1982), among other cases; see also
United States v. Addo, 989 F.2d 238, 242 (7th Cir. 1993)
(rejecting assertion that “a witness who is unavailable to
either party is deemed in the control of one party . . .
simply because the witness has a bias towards that
party”). That is true even when, as was the case here, the
government never provided the informant’s contact
information to the defense. See Pizarro, 717 F.2d at 343,
346 (upholding denial of missing witness instruction
where informant’s absence was not caused by govern-
ment misconduct, even though government had refused
to disclose that witness’s contact information).
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.
6 No. 09-3879
Sufficiency of the Evidence
Tavarez argues that the evidence presented at trial
was insufficient to allow a jury to convict him beyond
a reasonable doubt. This argument is also based on the
confidential informant’s absence at trial. None of
the witnesses actually saw Tavarez physically deliver
methamphetamine to the confidential informant. They
only saw the informant enter the apartment and return
some time later with methamphetamine. Further compli-
cating matters, Tavarez points out, is the fact that he
was not the only person who lived in the apartment.
He shared it with his girlfriend.
Tavarez preserved this argument by moving for a
judgment of acquittal at the close of the prosecution’s
case, so our review is de novo. United States v. Dalhouse,
534 F.3d 803, 807 (7th Cir. 2008); United States v. Meadows,
91 F.3d 851, 854 (7th Cir. 1996). An appellant who chal-
lenges the sufficiency of the evidence underlying his
conviction must show that no reasonable jury could
have found his guilt beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 324 (1979). All reason-
able inferences from the evidence are to be drawn in the
government’s favor. United States v. Gardner, 238 F.3d
878, 879 (7th Cir. 2001). We will neither reweigh the
evidence nor second-guess the jury’s credibility deter-
minations. Id. It is irrelevant whether we ourselves
would have voted to convict on the evidence pre-
sented—we have no authority to usurp the jury’s
function as finder of fact, particularly where we
base our review on the proverbially cold record. The
No. 09-3879 7
appellant’s burden is a heavy one, but not an impos-
sible one.2
We conclude that the jury could reasonably reach its
guilty verdict on the circumstantial evidence presented
here. The informant was seen going into Tavarez’s apart-
ment building for each controlled buy. A surveillance
video introduced at trial showed the informant entering
the building with Tavarez before the second controlled
buy. Although it is undisputed that Tavarez shared his
apartment with his girlfriend, nothing in the transcript
indicates whether his girlfriend was or was not present
in the apartment during either of the controlled buys.
When law enforcement searched Tavarez’s apartment,
they discovered most of the buy money ($4,200) inside
some men’s suit jackets hanging in the master bedroom
closet. Most important, Tavarez’s fingerprint was found
on one of the bags of drugs the confidential informant
provided to law enforcement. From this evidence, it was
reasonable to find beyond a reasonable doubt that the
2
We have often said that a defendant arguing insufficiency of
the evidence faces a “nearly insurmountable” burden. E.g.,
United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010). The
phrase should not be understood as implying that an appel-
late court will unthinkingly affirm a conviction on even the
weakest of evidence. The standard of review makes it dif-
ficult for a convicted defendant to prevail on this ground. But
that difficulty only emphasizes how important it is for a
reviewing court to review the entire trial record to ensure
that the record taken as a whole could justify a finding of guilt
beyond a reasonable doubt.
8 No. 09-3879
informant purchased methamphetamine from Tavarez
as instructed, that Tavarez had left his fingerprint on the
bag of drugs during the course of that sale, and that
Tavarez had hidden the buy money in his own clothing
for safekeeping.
The case against Tavarez was not overwhelming. We
can imagine innocent explanations for the fingerprint
and the buy money in the men’s clothing. But the ability
to imagine an innocent explanation is not equivalent
to harboring reasonable doubt. This circumstantial evi-
dence was not so weak as to preclude a guilty verdict.
A FFIRMED.
11-15-10