                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              SEPT 12, 2006
                               No. 05-16598                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 04-00083-CR-J-20-HTS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DAVID BOSTON,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                            (September 12, 2006)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Appellant David Boston (“Boston”) appeals his conviction after a jury found
him guilty of conspiring to pass and utter counterfeit checks in violation of 18

U.S.C. §§ 371, 514. His co-conspirator, Glenda Boston (“Glenda”) pled guilty to

the conspiracy charge. On appeal, Boston first contends that he should have been

able to comment on Glenda’s failure to testify for the government, and the district

court should not have told the jury to disregard his comment regarding her failure

to testify, but rather, should have given a missing witness instruction, allowing the

jury to infer that her testimony would have been unfavorable to the government.

Boston also challenges the district court’s reduction in his time for closing

argument and contends that he was denied his Fifth Amendment right to a fair trial

when the district court reduced his attorney’s time for closing argument for each

extra witness he presented. He also argues that the district court’s alleged bias

against him deprived him of a fair trial. We address each argument in turn.

                                          I.

      We review “jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party” and “[s]o long as

the instructions accurately reflect the law, the trial judge is given wide discretion as

to the style and wording employed in the instructions.” United States v. Zlatogur,

271 F.3d 1025, 1029 (11th Cir. 2001) (citation omitted). We review “a district

court's refusal to give a jury instruction requested by the defense for abuse of



                                           2
discretion.” United States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006). For

the denial of a requested jury instruction to be reversible error a defendant must

show that the instruction: “(1) was a correct statement of the law; (2) was not

adequately covered in the instructions given to the jury; (3) concerned an issue so

substantive that its omission impaired the accused's ability to present a defense;

and (4) dealt with an issue properly before the jury.” Id. (citation omitted).

      “[I]f a party has it peculiarly within his power to produce witnesses whose

testimony would elucidate the transaction, the fact that he does not do it creates the

presumption that the testimony, if produced, would be unfavorable.” Graves

v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 41 (1893). “When a witness is

peculiarly within the control of one party, and that witness’ testimony would

elucidate facts in issue, an instruction is appropriate regarding the permissible

inference which the jury may draw from the party’s failure to call the witness.”

United States v. Nahoom, 791 F.2d 841, 846 (11th Cir. 1986). However, to receive

a “missing witness instruction,” the requesting party must demonstrate: “the

potential witness’ unavailability in a physical or practical sense; and . . . [that] the

potential testimony [would be] relevant and noncumulative.” Jones v. Otis

Elevator Co., 861 F.2d 655, 659 (11th Cir. 1988). An inference from a party’s

failure to call a witness equally available to both parties is impermissible. United



                                            3
States v. Chapman, 435 F.2d 1245, 1247 (5th Cir. 1971). A party who may or

may not invoke the Fifth Amendment is equally available to either party. Id. at

1247-48.

      A witness’s unavailability is not determined solely from physical presence

or accessibility to subpoena, but rather, will turn on the witness’s relationship to

the nonproducing party. Jones, 861 F.2d at 659. A witness is unavailable in the

practical sense when the relationship is such that it creates a bias or hostility

against the opposing party. Id. at 659-60 (noting that because of employee’s

economic interests, employer-employee relationship created practical

unavailability).

      The district court is not required to give the missing witness instruction to

the jury if the witness would testify against the interests of the defendant. United

States v. Link, 921 F.2d 1523, 1529 (11th Cir. 1991).

      We conclude from the record that Boston did not meet his burden of

showing that the missing witness instruction should have been given. First, he did

not show how Glenda was “peculiarly within the control” of the government and

unavailable to him. Notably, Glenda’s plea agreement did not contain a

cooperation agreement, so there was no indication that she was helping the

government with its case against Boston such that the relationship between her and



                                            4
the government – the nonproducing party – would create bias or hostility against

him. See Jones, 861 F.2d at 659. That Glenda pled guilty, alone, does not indicate

that she was “peculiarly” within control of the government as she still retained her

Fifth Amendment privilege. See United States v. Kuku, 129 F.3d 1435, 1437-38

(11th Cir. 1997) (codefendant who had entered guilty plea but had not yet been

sentenced could properly invoke his Fifth Amendment privilege against

self-incrimination at defendant’s trial).

      Further, nothing in the record indicates that Boston made any attempt to

locate and subpoena Glenda or call her as a witness. Indeed, she was not on any of

his witness lists, and he never indicated during trial that he intended to call her. It

is further not known whether Glenda would have invoked her Fifth Amendment

privilege if called, and thus, she was equally available to both Boston and the

government. See Chapman, 435 F.2d at 1247-48.

      We also conclude from the record that Boston failed to meet his burden of

showing that the missing witness instruction should have been given because he

did not show how Glenda’s testimony would have been favorable to him. Indeed,

testimony at trial indicated that Glenda’s testimony, if any, would likely be

unfavorable to Boston, as certain witnesses testified that they saw her make checks

and received checks from her. Further, in her plea agreement, she identified



                                            5
Boston as one of her co-conspirators. As Glenda would likely have testified

against the interests of Boston, the district court was not required to give the

missing witness instruction to the jury. See Link, 921 F.2d at 1529; see also United

States v. Perez-Tosta, 36 F.3d 1552, 1556 n.2 (11th Cir. 1994) (district court did

not err in failing to give missing witness instruction for government’s failure to call

only agent with direct view of defendant’s house because other testimony at trial

indicated that his testimony would likely be unfavorable to defendant).

      Thus, since Boston did not establish the requisite predicate for the missing

witness instruction, the district court did not err in telling the jury to disregard

Boston’s comment and its instructions did not misstate the law. Since the missing

witness inference was not properly before the jury, we conclude that the district

court did not abuse its discretion in denying Boston’s requested instruction. See

Dulcio, 441 F.3d at 1275.

                                            II.

      While the district court “has an obligation to insure a fair trial,” see United

States v. Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000), it also “has broad

discretion in the management of the trial,” and we will not reverse on the court’s

management rulings “absent a clear showing of abuse.” United States v. Hilliard,

752 F.2d 578, 582 (11th Cir. 1985). In this respect, a district court’s instructions to



                                            6
counsel concerning closing arguments “will be reversed only if counsel is

prevented from making all legal arguments supported by the facts.” United States

v. Hall, 77 F.3d 398, 400 (11th Cir. 1996). Furthermore, the period of time to be

allotted for a defendant’s closing argument is within the sound discretion of the

district court. United States v. Carter, 760 F.2d 1568, 1581 (11th Cir. 1985). If a

closing argument is unreasonably curtailed, reversal may be warranted. United

States v. Bernes, 602 F.2d 716, 722 (5th Cir. 1979). A defendant, however, has a

duty to exercise due diligence in procuring the attendance of witnesses. See United

States v. Darby, 744 F.2d 1508, 1522 (11th Cir. 1984) (in the context of requesting

a continuance).

       Under the Fifth Amendment, a criminal defendant is only entitled to a fair

trial, not a perfect one. U.S. Const. amend. V; United States v. Ramirez, 426 F.3d

1344, 1353 (11th Cir. 2005).1 To amount to reversible error on the basis of bias, a

judge’s remarks must demonstrate such pervasive bias and unfairness that they

prejudice one of the parties in the case. United States v. Ramirez-Chilel, 289 F.3d

744, 750 n.6 (11th Cir. 2002).

       Here, we conclude from the record that the district court did not abuse its


       1
          It is noted that Boston did not raise a constitutional challenge below. However, under
either a de novo or plain error standard of review, Boston’s claim fails as the district court did not
abuse its discretion in limiting Boston’s time for closing argument or otherwise demonstrate bias
against him.

                                                  7
discretion in limiting Boston’s time for closing argument. Indeed, it is clear from

the record that Boston did not exercise due diligence in securing the attendance of

witnesses Detective Smith or Kendell Brown. The court, based on indications

from Boston on Wednesday, had informed the jury that the trial would be done by

Thursday or Friday at the latest. However, on Thursday, Boston had only one

witness ready to testify, and had not secured Smith’s presence. In fact, Boston had

served Smith with the subpoena only the day before he was supposed to testify,

knowing he had to travel from West Palm Beach to Jacksonville. Boston also

indicated that he would not call Brown, but did call her unexpectedly on Friday

morning and, as explanation, said that he had been unable to locate her, even

though she had lived and worked at the same places for several months and her

acquaintances knew this. She also indicated that she had been contacted about

being a witness in the case only the day before. Boston told the court that he had

looked for Brown for three weeks, but he knew since November 2004 that the case

was going to trial and Brown had been on all of his witness lists. He also never

previously indicated to the court any problems in securing Brown’s presence.

Given Boston’s lack of diligence in procuring witnesses, it cannot be said that the

district court’s reducing his time for closing argument by only 14 minutes, or

approximately 25 percent, was an abuse of discretion. See Bernes, 602 F.2d at



                                          8
722; Hodge v. United States, 271 F.2d 52 (5th Cir. 1959)2 (party’s request for 40

minutes for closing argument and district court’s allowance of 30 minutes was not

an abuse of discretion).

       Furthermore, Boston was not prevented, during his closing argument, from

making all legal arguments supported by the facts. He addressed the conspiracy

count and brought out areas of doubt based on the evidence produced at trial and

the witnesses’ credibility. Neither below nor on appeal does he point to any

specific legal arguments that he was not allowed to make. Hall, 77 F.3d at 400;

see also United States v. Gray, 105 F.3d 956, 965 (5th Cir. 1997) (where appellant

pointed to no precise information that he was unable to provide the jury because of

the court’s limitation on closing argument, he failed to show that the district court

abused its discretion) (persuasive authority).

       The record as a whole also does not demonstrate that the district court was

partial or unconstitutionally deprived Boston of a fair trial. The record

demonstrates that the district court was generally patient with Boston’s failure to

produce witnesses and made other arrangements when necessary. The district

court offered to issue warrants for absent witnesses under subpoena, tried to find a


       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October
1, 1981.


                                                9
flight for Smith, allowed both parties the opportunity to contact him, allowed the

trial to go on longer than anticipated based on Boston’s problems in securing

Smith, and allowed Boston to present the testimony of unexpected witnesses. Any

comments by the district court expressing displeasure, impatience or annoyance

with Boston were made outside the presence of the jury, and thus, did not prejudice

him. In sum, we hold that the district court did not abuse its discretion in limiting

Boston’s time for closing argument, did not demonstrate bias towards Boston, and

did not otherwise deprive him of a fair trial. Accordingly, we affirm Boston’s

conviction.

      AFFIRMED.




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