United States v. Michael Wright, 722 F.3d 1064

Michael Wright was recorded on Feb 26 responding to a confidential informant (CI) that he was “stocked up” on cocaine; CI wore a wire.
On March 3 the CI used marked bills to buy 192 grams of cocaine from Wright; police found additional marked bills and large quantities of cocaine in Wright’s apartment.
Wright was charged with distribution and possession with intent to distribute 500+ grams of cocaine and convicted; sentenced to 150 months.
Before trial the government announced it would not call the CI; it played the Feb 26 recording and an agent identified the voices.
Wright moved to exclude the CI’s recorded statements under the Sixth Amendment Confrontation Clause and requested a missing-witness jury instruction; both requests were denied.
District court instructed the jury that the CI’s statements were admitted only to provide context for Wright’s statements and not for their truth.

Issue	Plaintiff's Argument (Wright)	Defendant's Argument (Government)	Held
Whether admitting CI’s out-of-court statements without CI testimony violated the Sixth Amendment Confrontation Clause	CI’s recorded statements were testimonial and their admission without live testimony violated Wright’s confrontation right	CI’s statements were non-testimonial or, at minimum, were admitted only as context for Wright’s own admissions and thus permissible; jury was instructed accordingly	Court held no Confrontation Clause violation because CI’s statements were primarily contextual (questions/inquiries) used to make Wright’s admissions intelligible; instruction further supported admissibility
Whether the district court abused discretion by refusing a missing-witness jury instruction	Wright argued the CI was the only other witness to the March 3 transaction and the jury may infer the CI would have given helpful testimony if called	Government contended the CI would not have provided favorable, noncumulative testimony and the instruction was thus unwarranted	Court held no abuse of discretion: Wright failed to show the CI would have provided relevant, noncumulative favorable testimony; denial appropriate to prevent gamesmanship

United States v. Foster, 701 F.3d 1142 (7th Cir.) (admission of CI statements permissible when used to provide context for defendant’s admissions)
United States v. Gaytan, 649 F.3d 573 (7th Cir.) (CI statements admissible to show their effect on the listener, not for truth)
United States v. Walker, 673 F.3d 649 (7th Cir.) (CI statements admissible to make defendant’s recorded statements intelligible)
United States v. Nettles, 476 F.3d 508 (7th Cir.) (caution against admitting contextual statements that are actually offered for their truth)
United States v. Gorman, 613 F.3d 711 (7th Cir.) (limits on admitting interwoven evidence under Rule 404(b))
United States v. James, 487 F.3d 518 (7th Cir.) (approving instructing jury about limited use of informant statements)
United States v. Van Sach, 458 F.3d 694 (7th Cir.) (same)
United States v. Tavarez, 626 F.3d 902 (7th Cir.) (standards for missing-witness instruction: relevance, noncumulation, and witness peculiarly within other party’s control)
United States v. Cochran, 955 F.2d 1116 (7th Cir.) (defendant must show missing witness would have been helpful and nonduplicative)
United States v. Villegas, 655 F.3d 662 (7th Cir.) (missing-witness instruction can be barred where defense seeks to avoid harmful testimony yet obtain adverse inference)
United States v. Spinosa, 982 F.2d 620 (1st Cir.) (noting courts need not grant missing-witness instruction when defense seeks dual benefit of avoiding testimony while seeking negative inference)