In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3766

United States of America,

Plaintiff-Appellee,

v.

Trampas Austin,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-40068-JPG--J. Phil Gilbert, Chief Judge.

Argued May 10, 2000--Decided June 15, 2000



  Before Easterbrook, Ripple, and Rovner,
Circuit Judges.

  Easterbrook, Circuit Judge. An indictment
charged 14 persons with manufacturing and
distributing methamphetamine. Twelve
pleaded guilty, and some of these
testified against the two who stood
trial. Trampas Austin, one of these two,
now appeals from his conviction and 120-
month sentence.

  All of the testifying participants in
this drug ring were users of their own
product. Counsel elicited this (which the
witnesses readily admitted) and the fact
that each witness had received or
expected some reward for cooperating with
the prosecution. Defense counsel asked
the jurors to discount this testimony
because of the witnesses’ status as drug
users and their bargains with the
prosecution. He also asked the judge to
reinforce that argument with this
instruction:

If a witness who has cooperated with
the government is a user of
narcotics, there are reasons his or
her testimony should be considered
with great care. A regular user of
narcotics has a constant need for a
supply of drugs and for money to
support his or her habit and also
may have an abnormal fear of
imprisonment in which the supply of
drugs might be cut off.
Additionally, a witness who was
under the influence of marijuana,
methamphetamine or alcohol at the
time of a particular event may have
impaired recollection of that which
occurred during that event. These
are special circumstances which you
may consider in weighing testimony
of this kind. Of course, you may
give the testimony such weight as
you think proper after considering
all relevant circumstances.

But the judge declined to give this
instruction, observing that the witnesses
were not meth users at the time of trial
and thus did not need money to buy drugs
or fear the consequences of imprisonment
(which would cause withdrawal). Indeed,
six of the witnesses were in prison by
the time of Austin’s trial and therefore
already had endured whatever ill effects
interruption of their drug consumption
could produce. Although the judge thought
an addict-informant instruction
inadvisable, he did give an informant
instruction, drawn from Instruction 3.13
of the Pattern Criminal Federal Jury
Instructions for the Seventh Circuit
(1998), telling the jury that the
testimony of any cooperating witness
should be "considered with caution and
great care."

  Austin’s proposed instruction told the
jury to receive the testimony of drug-
using informants "with great care." The
judge told the jury to use "caution and
great care" when considering the
testimony of these witnesses. What then
is Austin’s beef? The instruction the
judge gave left out the reasons in
Austin’s proposal. Lack of reasons is a
possible problem with skeletal cautionary
instructions, see United States v. Cook,
102 F.3d 249 (7th Cir. 1996), because the
practical meaning of "caution and great
care" depends on just why the jurors are
supposed to exercise care. What, in
particular, are they to look for when
deciding whether given testimony should
be accepted or discarded? Guidance on
this subject is the principal reason for
giving a cautionary instruction yet was
missing from the language the district
judge selected. But whether additional
guidance is needed is a subject that the
district judge knows best, and on which
appellate review is correspondingly
deferential. See United States v.
Yarbough, 55 F.3d 280, 284 (7th Cir.
1995); United States v. Manganellis, 864
F.2d 528, 544 (7th Cir. 1988). This court
has never reversed a district judge for
omitting advice of the sort Austin wanted
the instruction to provide, and this case
shows why.

  Instructions lifted from pattern books,
as this was, often are misfits for the
events brought out at trial. As the
district judge observed, the witnesses
were not drug users at the time of trial
and did not need cash to feed their
habits. Those already in prison did not
especially fear withdrawal; they had
experienced it already, so there was no
risk that they would tailor their
testimony to curtail that risk. The only
advice that applied to these witnesses
was the statement that "a witness who was
under the influence of marijuana,
methamphetamine or alcohol at the time of
a particular event may have impaired
recollection of that which occurred
during that event." This purports to be a
statement of fact, and judges may be able
to simplify trials (and improve the
accuracy of deliberations) by informing
jurors about scientific knowledge that
jurors do not already have. See United
States v. Hall, 165 F.3d 1095, 1118-20
(7th Cir. 1999) (concurring opinion). But
is the proposition accurate? The
appellate briefs are unenlightening on
the subject. If accurate, does it apply
to these witnesses? An impaired memory
differs from a deluded mind. These
witnesses were not bystanders whose
ability to perceive events may have been
clouded by drugs; they claimed to be
participants in a long-running criminal
organization, and we have not been given
any reason to believe that using
methamphetamine can cause a person to
fantasize elaborate details like those
the witnesses provided to this jury. So
the proposed instruction could have done
more to mislead than to inform jurors
about the value of the testimony they
heard.

  When circumstances warrant, a defendant
is entitled to "careful instructions"
about the credibility of informants, see
On Lee v. United States, 343 U.S. 747,
757 (1952), but this proposed instruction
did not meet that description. The
district judge was entitled to leave the
subject to argument by counsel;
Instruction 3.13 added whatever extra may
have been called for. Cook, 102 F.3d at
252-54.

Affirmed
