United States Court of Appeals
For the First Circuit
No. 02-1060
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN PEREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Michael J. Iacopino and Brennan, Caron, Lenehan & Iacopino on
brief for appellant.
Thomas P. Colantuono, United States Attorney, and Mark E.
Howard, Assistant United States Attorney, on brief for appellee.
August 7, 2002
SELYA, Circuit Judge. This appeal raises an interesting
question about a defendant's entitlement to a "missing witness"
instruction with respect to a confidential informant (CI) whose
testimony the government elected not to present at trial. We
uphold the district court's refusal to give the requested
instruction, and, consequently, affirm the judgment of conviction.
This case has its roots in an investigation that targeted
two suspected drug dealers, "Tony" and "Taboo." The lead
investigator was Trooper Paul Hardcastle, a member of the New
Jersey State Police, working undercover in New Hampshire. On
January 11 — all dates are in the year 2000 — Hardcastle met the CI
at a parking lot in Salem, New Hampshire. He entered a number on
his cellular telephone and then handed the telephone to the CI with
instructions to arrange a purchase of crack cocaine. The CI
obliged. The number that Hardcastle called was listed to the
residence of defendant-appellant Juan Perez.
Shortly thereafter, the appellant arrived in the parking
lot behind the wheel of a motor vehicle. Hardcastle and the CI
approached the car and gave the appellant $300. A passenger in the
car, later identified as Manuel Guillen, then handed twenty packets
of crack cocaine to Hardcastle.1
1
The government's evidence at trial indicated that Perez and
Guillen were "Tony" and "Taboo."
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On January 19, Hardcastle and the CI initiated a second
transaction in much the same manner. The appellant again arrived
at the parking lot in response to the CI's call. When Hardcastle
asked the appellant for larger quantities of crack cocaine, the
appellant directed him to a second vehicle, occupied by José
Antonio Garcia. This vehicle was registered to the appellant.
Hardcastle planned the coup de grace to occur on March 8.
He provided "buy money" to the CI, who proceeded to the same
parking lot under the watchful eyes of a police surveillance team.
The CI purchased crack cocaine from one Dione Bare. Hardcastle
then recognized Garcia in the rear seat of another vehicle in the
parking lot. The police arrested the occupants of that vehicle
(namely, Garcia, Guillen, and the appellant).
The grand jury indicted the appellant on one count of
conspiracy to possess controlled substances with intent to
distribute and four counts of distribution on specific dates. See
21 U.S.C. §§ 841(a)(1), 846. The government later dropped one of
the distribution counts. At the ensuing trial, Hardcastle was the
only witness to identify the appellant as a first-hand participant
in the January 11 and January 19 transactions. The appellant
challenged this identification evidence, contending that Hardcastle
had made a mistake. The CI was not called to testify.
At the close of the evidence, the appellant's request for
a missing witness instruction relating to the CI was denied. The
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judge charged the jury, and the appellant properly preserved his
rights. See Fed. R. Crim. P. 30. The jurors found the appellant
guilty on the four remaining counts. The district court imposed a
ten-year incarcerative sentence. This appeal followed.
In this venue, the appellant assigns error to the trial
court's refusal to give the sought-after missing witness
instruction. He argues that the CI's testimony was essential to a
fair determination of the central issue in the case: the identity
of the person with whom Hardcastle dealt on January 11 and January
19. We reject this argument.
The rationale behind a missing witness instruction is
that upon "the failure of a party to produce available evidence
that would help decide an issue," the jury may infer "that the
evidence would [have been] unfavorable to the party to whom it is
available or whom it would ordinarily be expected to favor."
United States v. St. Michael's Credit Union, 880 F.2d 579, 597 (1st
Cir. 1989) (citation omitted); accord United States v. Ariza-
Ibarra, 651 F.2d 2, 15-16 (1st Cir. 1981). If other conditions are
met, a missing witness instruction is proper when a witness is
either actually unavailable to the party seeking the instruction or
so obviously partial to the other side that the witness is deemed
to be legally unavailable. See United States v. Spinosa, 982 F.2d
620, 632 (1st Cir. 1992). Thus, as a preliminary requirement to
the consideration of a missing witness instruction, a criminal
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defendant must demonstrate that the uncalled witness is either
"favorably disposed" to testify on behalf of the government by
virtue of status or relationship or "peculiarly available" to the
government. United States v. DeLuca, 137 F.3d 24, 38 (1st Cir.
1998). Once past that point, the court must consider the
explanation (if any) for the witness's absence and whether the
witness, if called, would be likely to provide relevant, non-
cumulative testimony. United States v. Lewis, 40 F.3d 1325, 1336
(1st Cir. 1994). The decision to grant or deny such an instruction
in a specific case is reviewed for abuse of discretion. DeLuca,
137 F.3d at 38; Lewis, 40 F.3d at 1336.
Here, the appellant asseverates that the trial court
abused its discretion in refusing to give a missing witness
instruction vis-à-vis the CI. This asseveration lacks force.
Federal courts long have recognized that the government,
in the due performance of its law enforcement functions, must rely
to some extent on informants. But tattling on criminals is risky
business, and confidentiality sometimes is a matter of life or
death. Identifying an informant (as, say, by calling him to the
witness stand) not only may expose that person to harm but also may
be seen as a breach of trust by others (making them reluctant to
cooperate with the government in future cases). It is, therefore,
widely acknowledged that the government has a "privilege to
withhold from disclosure the identity of persons who furnish
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information of violations of law to officers charged with
enforcement of that law." Roviaro v. United States, 353 U.S. 53,
59 (1957).
To be sure, this privilege is qualified, not absolute.
There are circumstances in which the interests of justice require
that the privilege yield in order to preserve the accused's right
to a fair trial. See id. at 60-61. But the privilege serves
important ends, and the law places the burden squarely on the party
seeking disclosure (typically, the defendant) to demonstrate that
knowledge of the identity of a confidential informant is vital to
the proper preparation and presentation of his case. See, e.g.,
Lewis, 40 F.3d at 1335; United States v. Giry, 818 F.2d 120, 130
(1st Cir. 1987).
This inquiry defies mechanical solutions: in determining
whether the privilege must give way, the trial court must consider
the particular circumstances of each case, balancing the accused's
right to prepare and present his defense against the public
interest in acquiring needed information and the informant's stake
in confidentiality. United States v. Robinson, 144 F.3d 104, 106
(1st Cir. 1998). The battle over entitlement to the privilege
typically is fought out in motion practice and other pretrial
proceedings (including evidentiary hearings, where warranted).
E.g., id. at 105-06; United States v. Bibbey, 735 F.2d 619, 621
(1st Cir. 1984). In recognition of the seminal case on the
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informant's privilege, pretrial evidentiary hearings devoted to
this issue have come to be known as "Roviaro hearings."
In the instant case, the appellant eschewed the filing of
a motion for disclosure of the CI's identity. He likewise chose
not to ask the trial court to convene a Roviaro hearing. Instead,
he attempted an end run around the safeguards that attend the
qualified privilege: he waited until both sides had rested and
then, despite having made no effort to obtain the informant's
identity in the usual manner, implored the court to instruct the
jurors that they could draw an adverse inference from the
government's failure to offer the CI's testimony. Under these
circumstances, we agree with the district court that the appellant
was not entitled to such an instruction.
The appellant argues that there is no strict requirement
that he file a motion requesting disclosure of an informant's
identity. That may be so, but it is beside the pertinent point.
If a defendant moves for disclosure, and loses, then he is not
entitled to a missing witness instruction. A defendant who elects
not to contest the matter at all hardly can be more advantaged. In
all events, a negative inference is unwarranted as a matter of
logic. The fact that the government chose to withhold the identity
of its informant does not, in and of itself, justify an adverse
inference, for "there is no basis for concluding that the
government's decision not to reveal the identity of its
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confidential informant was the result of any consideration other
than its concern for the informant's safety and anonymity." United
States v. Martinez, 922 F.2d 914, 925 (1st Cir. 1991).
The sockdolager is that to grant the appellant the
instruction that he seeks would undermine the Roviaro privilege —
and without good reason. At whatever stage of the proceedings the
question arises, the accused has the burden to show that something
special about his case suffices to override both the public
interest in encouraging the flow of information to law enforcement
agencies and the source's private interest in his or her own
safety. See Martinez, 922 F.2d at 920-21; United States v. Hemmer,
729 F.2d 10, 15 (1st Cir. 1984). A defendant cannot evade this
responsibility by the simple expedient of lying low until both
sides have rested, and then attempting to treat the informant as a
person whose identity ought to have been revealed.
Viewed in this light, the appellant's argument
necessarily fails. After all, he did not make the showing required
to overcome the Roviaro privilege (indeed, he did not even attempt
to make it). Since an inference unfavorable to the government
cannot arise simply because the government decides not to call a
confidential informant to testify, the district court did not abuse
its discretion in refusing to give the requested jury instruction.
If more were needed — and we do not think that it is — we
remark that the appellant was permitted, in his summation, to argue
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that the jury should draw a negative inference from the
government's failure to bring forward the CI. Defense counsel
hammered this point home, the prosecutor did not object, and the
court gave no curative instruction. This is reminiscent of the
situation in Martinez, in which we wrote:
We note here counsel was permitted, without
objection by the government or instruction by
the court, to argue to the jury that it should
draw a negative inference from the
government's failure to produce its
confidential informant. Particularly under
these circumstances, we have found that any
claim that the denial of a "missing witness"
instruction was detrimental to the defense is
significantly undercut.
922 F.2d at 925 (citation omitted); see also Ariza-Ibarra, 651 F.2d
at 16 n.22 (explaining that the fact that the defendants argued,
without objection or contrary instruction by the court, that the
jury should draw a negative inference from the government's failure
to call a witness "materially undercuts [their] argument that the
denial of a missing witness instruction deprived them of an
inference favorable to the defense"). So it is here.
We need go no further.2 We hold that where, as here, a
criminal defendant does not attempt to pierce the Roviaro
privilege, a missing witness instruction as to a confidential
2
The district court offered a salmagundi of other reasons for
denying the missing witness instruction (e.g., that the appellant's
counsel was engaging in "gamesmanship" and that, in all events, the
CI's testimony would have been cumulative). We need not reach
these issues.
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informant is improper. For that reason, the district court did not
abuse its discretion in denying the appellant's request for such an
instruction.
Affirmed.
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