In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3879

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LORENZO TAVAREZ,

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.

ARGUED SEPTEMBER 21, 2010—DECIDED NOVEMBER 15, 2010

Before BAUER, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. 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
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 criminal case against Tavarez, the informant was asked to

make two controlled drug buys at Tavarez’s apartment

while under police surveillance. Prior to each controlled buy, a law enforcement officer searched the informant 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 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
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 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), 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 instruction, he would need to show (1) that if called, the

witness would have been able to provide relevant, noncumulative testimony on an issue in the case; and

(2) that the witness was peculiarly in the other party’s
4 No. 09-3879

We have often described the first element as requiring that 1

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).

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 confidential informant actually observed what happened during

the controlled buys. Her testimony regarding those observations 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 relationship 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.
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 parties). 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 government 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 complicating 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 challenges 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 reasonable 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 determinations. Id. It is irrelevant whether we ourselves

would have voted to convict on the evidence presented—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

We have often said that a defendant arguing insufficiency of 2

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 appellate court will unthinkingly affirm a conviction on even the

weakest of evidence. The standard of review makes it difficult 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.

appellant’s burden is a heavy one, but not an impossible 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 apartment 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
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 evidence was not so weak as to preclude a guilty verdict.

AFFIRMED.

11-15-10