                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-3425

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

M ICHAEL W RIGHT,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 10 CR 1075—Elaine E. Bucklo, Judge.



       A RGUED A PRIL 19, 2013—D ECIDED JULY 16, 2013




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Michael Wright was con-
victed of cocaine distribution and sentenced to
150 months’ imprisonment. At trial, the informant did
not testify, but the government presented evidence of
conversations in which Wright, in response to the in-
formant’s inquiries, admitted to stocking up drugs for
sale. On appeal, Wright argues that his Sixth Amend-
2                                              No. 12-3425

ment right to confrontation was violated when the in-
formant’s statements were admitted in the absence of
live testimony. But the statements—which were mostly
confirmatory inquiries—were simply used to provide
necessary context for Wright’s own admissions, and
using such statements to provide context in this way
does not violate the Confrontation Clause. Wright next
argues that the district court should have told the jury
that it could draw an adverse inference against the gov-
ernment because it did not call the informant to the
stand. But the primary purpose of the missing witness
instruction is to address situations where the de-
fendant was unfairly deprived of the opportunity to
elicit favorable testimony, and here, Wright fails to
show that the informant would have given such helpful
testimony in the first place. Therefore we affirm.


                  I. BACKGROUND
  On February 26, 2010, Defendant Michael Wright met
with an individual whom he did not realize was secretly
cooperating with the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) and the Chicago Police Department as
a confidential informant (“CI”). The CI, who was
wearing a wire, told Wright that he had a customer who
was looking to buy cocaine, and Wright said he was
stocked up with it. Specifically, the conversation was as
follows (Wright represented by “MW”):
    CI:    Yeah, wouldn’t guess who . . . called me for
           the s–t now.
No. 12-3425                                                   3

   MW:        Mike?
   CI:        No.
   MW:        Who?
   CI:        That . . . guy that, that backed out on us.
              Looking.
   MW:        Everybody looking, dog.
   CI:        So, if he calls me this weekend, I might see
              you midweek.
   MW:        OK. Yeah, just call. But I’m straight. Every-
              body’s been calling me.
   CI:        You stock . . .
   MW:        Since I’ve been gone, I had sixty two mes-
              sages.
   CI:        You stocked up then?
   MW:        Yeah, I been stocked up.
   CI:        Cool.
   MW:        I did that before I left.
   CI:        Sweet, so you got a lot then?
   MW:        Yeah.
   CI:        So, we should be OK for . . .
   MW:        Yeah, we real cool. We cool all the way till
              I leave and come back. You know I try to
              stay two three weeks ahead.
   CI:        Cool.
4                                               No. 12-3425

  On March 3, the CI took $4,650 in marked bills into
Wright’s apartment and left with 192 grams of cocaine. The
police followed Wright to a nearby establishment and
after searching him, found a $50 marked bill. A warrant
was obtained to search Wright’s apartment, where they
found $4,600 in marked bills, 455 grams of cocaine in
Ziploc bags, various other baggies of cocaine, scales, and
a variety of materials used to prepare cocaine for sale.
After Wright was arrested, he said, “Look, you got me;
let’s just start the sentence right now.”
  Wright was charged with two counts: distribution
and possession with intent to distribute 500 grams or
more of mixtures and substances containing cocaine. See
21 U.S.C. § 841(a)(1). Before trial, the government said
that it would not be calling the CI as a witness. So
Wright moved to preclude the CI’s recorded state-
ments pursuant to the Confrontation Clause of the
Sixth Amendment. The district court denied the motion.
Wright also asked for a missing witness instruction to
the jury, i.e., an instruction that the jury may draw an
adverse inference against the government due to its
failure to call the CI as a witness. Denying the request, the
court told Wright’s counsel, “You’ve said yourself that
you don’t actually think that the witness has got any-
thing to say that would be helpful to the defense, and
you certainly haven’t made your case for it.” It added
that Wright “really [had no] interest in calling the wit-
ness” and was “engaged in gamesmanship.”
  At trial, the government presented evidence of the
above facts, which included playing the recording of the
No. 12-3425                                              5

February 26 conversation (with an ATF agent identifying
the voices in the recording). The district court instructed
the jury that the “confidential informant’s statements
are offered only to provide context for the defendant’s
statements and are not to be considered for the truth of
the matters asserted.” The jury convicted Wright on
both counts and he was sentenced to 150 months’ impris-
onment. This appeal followed.


                     II. ANALYSIS
  Wright raises two arguments on appeal. First, he
argues that his constitutional right to confrontation was
violated when the CI’s statements during the February 26
conversation were admitted without the CI’s live testi-
mony. Second, he argues that the district court abused its
discretion when it declined to give a missing witness
instruction. As discussed below, both arguments are
without merit.


 A. Wright’s Constitutional Right to Confrontation
    Not Violated Because CI’s Statements Were Pre-
    sented for Context
  The Confrontation Clause of the Sixth Amendment
bars the admission of testimonial statements (without
the declarant’s presence at trial) that are admitted for
the truth of the matters asserted unless the declarant
is unavailable and the defendant had a prior oppor-
tunity to cross-examine him. See United States v. Foster,
6                                                No. 12-3425

701 F.3d 1142, 1150 (7th Cir. 2012).1 But as we have ex-
plained in a number of similar cases involving the ad-
mission of a non-testifying CI’s statements, such admis-
sion is permissible if the statements simply “provide
context for the defendant’s own admissions,” id., in that
they “ ‘help the jury make sense of [the defendant’s]
reaction to what [the CI] said and did.’” Id. (quoting
United States v. Gaytan, 649 F.3d 573, 580 (7th Cir. 2011)
(alterations in original)); see also United States v. Walker,
673 F.3d 649, 657-58 (7th Cir. 2012) (statements are ad-
missible when they “make a defendant’s recorded state-
ments intelligible for the jury” or “when brief and essential
to ‘bridge gaps in the trial testimony’ that might signifi-
cantly confuse or mislead jurors” (quoting Jones v.
Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011))).
  Here, the CI’s statements were clearly contextual.
Wright’s key admission that he was “stocked up” on
drugs and had several weeks’ supply for sale was not
made in a vacuum, but in response to the CI’s inquiries. See
Foster, 701 F.3d at 1152 (“[T]he statements were offered
to provide relevant background to the defendant’s re-
sponses, enabling the jurors to comprehend the conver-
sation as a whole.”). Without the CI’s statements,


1
  Because we find no Confrontation Clause violation even on de
novo review, see Foster, 701 F.3d at 1150 (applying de novo
standard), we need not discern from the ambiguous record
whether Wright may have forfeited this argument, triggering
plain error review. We also need not address whether the CI’s
statements are formally considered “testimonial,” an issue
which the parties do not brief.
No. 12-3425                                                  7

Wright’s responses would have been unintelligible, and a
jury would not have any sense of why the conversation
was even happening. See, e.g., id. at 1152 (“Foster’s state-
ments would have been unintelligible without reference
to the CI’s statements[.]”). Of course, we must be vigilant
to ensure that the government does not “seek to admit
based on ‘context’ statements that are, in fact, being
offered for their truth.” United States v. Nettles, 476 F.3d
508, 517 (7th Cir. 2007); see, e.g., Walker, 673 F.3d at 657
(CI’s statement that the defendant gave him a revolver,
directly relevant to the defendant’s guilt, should not
have been admitted); cf. United States v. Gorman, 613
F.3d 711, 719 (7th Cir. 2010) (overruling “inextricable
intertwinement” exemption from Rule 404(b) standard).
But here it is difficult to imagine how the CI’s state-
ments independently establish any fact relevant to
Wright’s guilt. Most of the CI’s statements were
inquiries, not factual assertions. See, e.g., Nettles, 476 F.3d
at 518 (“Sometimes, [the declarant] asked questions
(presumably in order to elicit more incriminating infor-
mation from [the defendant]), . . . [but] does not appear to
say anything of substance.”). And the CI’s only factual
assertion was that some “guy” was asking the CI for
drugs, but that testimony was not offered to show that
some “guy” actually wanted drugs from the CI—the
assertion was plainly being used as a ruse, which led to
Wright’s key admissions. See United States v. Gaytan, 649
F.3d 573, 580 (7th Cir. 2011) (“These statements were not
being offered to show that some ‘dude’ with Gaytan’s
brother actually wanted to buy two ounces of ‘rock’; the
statements were offered to show their effect on the
8                                                   No. 12-3425

listener, Gaytan.”); Walker, 673 F.3d at 657 (“[The CI] was
following an ATF script when he enlisted and plotted
with the defendants to rob the phony stash house, so
his parts of the recorded conversations were offered to
make the defendant’s statements intelligible.”). So there
was no constitutional violation.
  Given our decision, we need not reach the govern-
ment’s additional argument that any constitutional viola-
tion was cured by the district court’s instruction to the
jury that the CI’s statements were only offered “to
provide context for the defendant’s statements and are
not to be considered for the truth of the matters as-
serted.” But we will. As the government correctly notes,
we have “approved the use of such instructions to
ensure that the jury is aware of the proper weight and
consideration to give the non-testifying informant’s
statements.” See, e.g., Foster, 701 F.3d at 1152; Gaytan, 649
F.3d at 580; United States v. James, 487 F.3d 518, 524 (7th
Cir. 2007); United States v. Van Sach, 458 F.3d 694, 701
(7th Cir. 2006). And at oral argument, Wright’s counsel
conceded that these instructions were proper.
  But while this kind of boilerplate instruction might
not be reversible error under our precedent, we are con-
cerned that generic jury instructions unadapted to the
particulars of a case may fail to give the practical
guidance that lay jurors need.2 If scenarios like these


2
   Neither the 2012 edition of the Pattern Criminal Jury Instruc-
tions of the Seventh Circuit nor the prior edition appears to
                                                  (continued...)
No. 12-3425                                                9

arise in the future, and instructions are to be given,
those instructions should tell the jury—directly and
concretely—what it can and cannot consider, and why.
For example, the jury could have been told that the CI’s
half of the conversation was being played only so that
it could understand what Wright was responding to,
and that the CI’s questions and statements standing
alone were not to be considered as evidence of Wright’s
guilt. By using the boilerplate instruction in this case,
it may not have been clear what considering the CI’s
statements only for “context” actually meant. Indeed,
even the government could not give a clear and straight-
forward explanation of the term when asked at oral
argument. It might also have been confusing to tell the
jury not to consider the CI’s statements “for the truth of
the matters asserted” since most of his statements were
questions anyway. We provide the above example
merely by way of illustration, not because it is the best
one, and definitely not to create another template
which district courts should feel compelled to use in all
cases. The bottom line is that litigants and judges
should continue endeavoring to make jury instructions
as concrete and understandable to lay jurors as possible.




(...continued)
have a template for this situation; the language used in the
instruction in this case appears to have been lifted directly
from our past Confrontation Clause cases.
10                                               No. 12-3425

  B. Missing Witness Instruction Was Not Required
     Because Wright Did Not Want the CI to Testify
  Wright next argues that the district court should have
given a “missing witness” instruction, i.e., an instruction
that the jury may infer from the CI’s absence that he
would have given testimony harmful to the government.
“The missing witness instruction is disfavored in this
circuit, but a district court has discretion to give it
in unusual circumstances. 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 testi-
mony on an issue in the case; and (2) that the witness
was peculiarly in the other party’s power to produce.”
United States v. Tavarez, 626 F.3d 902, 904-05 (7th Cir. 2010)
(citations omitted). Wright argues that the first prong
was satisfied because the CI was the only individual
other than Wright that witnessed the March 3 transac-
tion. But he fails to make any non-speculative showing
that the CI’s testimony would have actually been helpful
to him. See United States v. Cochran, 955 F.2d 1116, 1123
(7th Cir. 1992) (“[The defendant] must show that the
witness was under the power of the government and
that the missing witness’[s] testimony would have been
helpful, that is, both relevant and non-duplicative.”); see
also United States v. Villegas, 655 F.3d 662, 671 (7th Cir.
2011).
  The primary purpose of the instruction is to address
situations where a defendant is unfairly deprived of
the opportunity to elicit favorable testimony (whether
No. 12-3425                                                 11

because the witness was physically unavailable or—as
Wright argues in this case—“pragmatically” unavailable,
Foster, 701 F.3d at 1155). If no favorable testimony is out
there, then a missing witness instruction serves no legiti-
mate purpose—at least Wright fails to identify one in
this case. All that is left, as the district court correctly
said, is gamesmanship. See Villegas, 655 F.3d at 671
(“[O]ther courts have noted that where the defense
seeks the ‘dual benefit of avoiding . . . potentially
harmful testimony at trial, while at the same time ob-
taining the advantage of a negative inference drawn by
the jury about the government’s failure to produce . . .
[the] witness . . . the trial court [is] under no obligation to
grant the motion for a ‘missing witness’ instruction.’ ”
(quoting United States v. Spinosa, 982 F.2d 620, 633 (1st Cir.
1992)). The district court’s denial of the instruction
for these reasons was not an abuse of discretion.


                    III. CONCLUSION
  For the above-stated reasons, we A FFIRM Wright’s
conviction.




                            7-16-13
