United States v. Rios
2011 U.S. App. LEXIS 5848
| 5th Cir. | 2011Background
- Rios was convicted of conspiring to transport illegal aliens and aiding and abetting their transportation; the district court denied a missing witness instruction.
- Mendoza-Cortez offered a guilty plea three days before trial but would not admit conspiracy with Rios; district court did not accept his initial plea before trial.
- On trial day, Mendoza pleaded guilty again and stated he would not testify; Rios's counsel indicated he did not anticipate needing Mendoza.
- Testimony at trial showed Mendoza guided aliens through south Texas; Mendoza testified inconsistently about conspiracy and relationships.
- Rios argued Mendoza was a '500 pound gorilla' and the jury should be instructed to infer government absence of Mendoza's testimony; the court denied the instruction.
- Jury convicted Rios on all counts and the district court sentenced him to 27 months in prison, with concurrent terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the missing witness instruction was reversible error | Mendoza was peculiarly within government's control and testifying would illuminate conspiracy facts. | Mendoza’s invocation of the Fifth Amendment or non-testimony warranted an inference against the government and the court should instruct accordingly. | No reversible error; instruction not required |
Key Cases Cited
- United States v. Santos, 589 F.3d 759 (5th Cir. 2009) (jury instructions; standard of review for asserting error)
- United States v. Olivares, 19 F.3d 15 (5th Cir. 1994) (unpublished; missing witness framework)
- United States v. Davis, 487 F.2d 112 (5th Cir. 1973) (unfavorable inference from missing witness)
- United States v. Black, 497 F.2d 1039 (5th Cir. 1974) (availability of witness and missing witness issue)
- United States v. Myerson, 18 F.3d 153 (2d Cir. 1994) (immunity not automatic missing witness)
- United States v. St. Michael's Credit Union, 880 F.2d 579 (1st Cir. 1989) (immunity not necessary for missing witness instruction)
- United States v. Flomenhoft, 714 F.2d 708 (7th Cir. 1983) (prosecutorial discretion regarding immunity; missing witness)
- United States v. Simmons, 663 F.2d 107 (D.C. Cir. 1979) (fifth amendment witness and missing witness inference)
- United States v. Jennings, 724 F.2d 436 (5th Cir. 1984) (testimony and cumulative evidence considerations)