United States v. James Di Santis

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3692

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JAMES D IS ANTIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06-CR-728—Charles P. Kocoras, Judge.

A RGUED S EPTEMBER 18, 2008—D ECIDED M AY 4, 2009

Before E ASTERBROOK, Chief Judge, and S YKES and

T INDER, Circuit Judges.

T INDER, Circuit Judge. A jury convicted police officer

James DiSantis of depriving a suspect’s right to be free

from unreasonable seizure, in violation of 18 U.S.C. § 242.

On appeal, DiSantis raises several challenges to the jury

instructions given at his trial. Finding no reversible

error in the instructions, we affirm the conviction.

2 No. 07-3692

I. Background

On September 3, 2003, DiSantis, an officer of the Cicero,

Illinois Police Department, passed Jennifer Pine while

driving through Chicago. DiSantis knew of prior criminal

activity by Pine, as well as by her two passengers, Stephen

Roden and Robert Bertucci, and suspected that Pine was

either driving a stolen vehicle or heading to buy drugs.

Acting on this hunch, DiSantis followed Pine and pulled

her over on Central Avenue. According to Pine’s testi-

mony, DiSantis pulled her out of the car by the hair and

struck her multiple times in the head. DiSantis denied

pulling Pine’s hair or striking her, testifying that he only

raised his voice during the course of the traffic stop.

While this incident was transpiring, Hector Montes

passed DiSantis’s and Pine’s stopped cars and saw

DiSantis striking Pine. Hector continued south on Central

Avenue to his home, where he picked up his brother,

Richard Montes. The Montes brothers then drove back

north on Central Avenue on their way to view a con-

struction project at Millennium Park, which Richard

planned to record with his video camera. When they

passed the point of the traffic stop, Hector and Richard

saw that DiSantis and Pine were still at the scene, but

now joined by a second police car driven by Joseph

Melone, another Cicero police officer who worked

under DiSantis.

The Montes brothers pulled into a parking lot across

from the traffic stop, and Richard attempted to record the

incident with his video camera. After a few minutes,

Hector and Richard decided to leave the scene and con-

No. 07-3692 3

tinued on Central Avenue. But by that time, DiSantis and

Melone had spotted Hector’s SUV, and both officers

testified that they thought that the video camera that

Richard had pointed out of the passenger window was

actually a gun. The officers accordingly pursued and

pulled Hector over at a nearby hospital parking lot.

DiSantis approached the passenger side of Hector’s SUV.

According to the Montes brothers, DiSantis immediately

went up to the passenger window and wrestled the

video camera away from Richard. The Montes brothers

further testified that DiSantis began screaming at them

and demanding the camera’s “memory stick.” After

Hector told DiSantis that he did know anything about the

memory stick, DiSantis struck Hector with the camera

across the face and again on the head. DiSantis then

threw the camera on the ground and stepped on it.

DiSantis also conducted a pat-down search of both

men and squeezed their genitals.

After finding a bullet magazine in Hector’s SUV, DiSantis

arrested Hector for unauthorized possession of ammuni-

tion and took him to the Cicero police station. Hector

was released later that evening, after which he went to

the hospital. DiSantis filed a police report on the

incident and submitted Richard’s video camera as evi-

dence.

Based on these events, the government charged DiSantis

with willfully depriving Pine and Hector of their con-

stitutional right to be free from unreasonable seizure, in

4 No. 07-3692

violation of 18 U.S.C. § 242.1 The case proceeded to a six-

day jury trial at which several witnesses, including

DiSantis, testified about the Pine and Montes traffic stops.

The government capably impeached DiSantis’s testimony

using the police report that he filed on the Montes incident.

For example, after DiSantis denied grabbing Richard’s

video camera, the government read a portion of DiSantis’s

report stating that “Hector Montes, was clutching the . . .

video camera” and that “DiSantis removed the camera

from the suspect by force.” The government also noted

that DiSantis’s report catalogued the camera as “dam-

aged,” suggesting that DiSantis was lying when he

testified that he had not deliberately stepped on the

camera.

Following the presentation of evidence, the district court

held a jury instructions conference and reviewed the

parties’ proposed instructions. Citing the inconsistencies

between DiSantis’s testimony and his police report, the

government requested an instruction that the jury could

1

18 U.S.C. § 242 provides, in pertinent part:

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person in

any State, Territory, Commonwealth, Possession, or

District to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or

laws of the United States . . . shall be fined under this

title or imprisoned not more than one year, or both; and

if bodily injury results from the acts committed in

violation of this section . . . shall be fined under this

title or imprisoned not more than ten years, or both . . . .

No. 07-3692 5

consider DiSantis’s prior inconsistent statements for their

truth, not merely for assessing DiSantis’s credibility. The

court agreed and gave, over DiSantis’s objection, the

government’s proposed instruction on the substantive

use of DiSantis’s prior inconsistent statements. The

court also gave the government’s proposed instructions

defining the “bodily injury” that triggers an enhanced

maximum sentence under 18 U.S.C. § 242, as well as the

“reasonable force” that an officer may justifiably use

against a suspect. Finally, the court rejected DiSantis’s

request for a “missing witness” instruction regarding

Robert Bertucci and Steven Roden, potential government

witnesses who, according to DiSantis, were controlled

by the government and unavailable to the defense.

The jury found DiSantis not guilty of violating Pine’s

constitutional rights but guilty of violating Hector’s

rights.2 The district court imposed a sentence of 66

months’ imprisonment. On appeal, DiSantis challenges

the jury instructions on the use of his prior inconsistent

statements, the “bodily injury” element of § 242, and the

“reasonable force” that DiSantis could justifiably use

against Pine and Hector. DiSantis also challenges the

district court’s refusal to give his proposed “missing

witness” instruction.

2

The jury also found DiSantis not guilty of a third count of

violating § 242, which related to an earlier incident not

material to this appeal.

6 No. 07-3692

II. Discussion

We review de novo a district court’s decision to give

or refuse a jury instruction “when the underlying assign-

ment of error implicates a question of law,” but “general

attacks on the jury instructions are reviewed for an abuse

of discretion.” United States v. Macedo, 406 F.3d 778, 787

(7th Cir. 2005) (citation omitted). The district court “is

afforded substantial discretion with respect to the precise

wording of instructions so long as the final result, read

as a whole, completely and correctly states the law.”

United States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008)

(quoting United States v. Lee, 439 F.3d 381, 387 (7th Cir.

2006)), cert. denied, 129 S. Ct. 1386 (2009). “Reversal is

proper only if the instructions as a whole are insufficient

to inform the jury correctly of the applicable law and the

jury is thereby misled.” United States v. Madoch, 149

F.3d 596, 599 (7th Cir. 1998).

A. Prior Inconsistent Statements

Based on the inconsistences between DiSantis’s testi-

mony and his police report, the district court instructed

the jury that they could consider DiSantis’s prior incon-

sistent statements as substantive evidence. The given

instruction provided:

A statement made by the defendant before trial

that is inconsistent with the defendant’s testimony

here in court may be used by you as evidence of

the truth of the matters contained in it, and also

in deciding the truthfulness and accuracy of the

defendant’s testimony at trial.

No. 07-3692 7

This instruction is substantively identical to Instruction

3.10 from the Federal Criminal Jury Instructions of the

Seventh Circuit. Fed. Crim. Jury Instr. 7th Cir. 3.10 (1999).

(Although not pre-approved by the Seventh Circuit

Judicial Council for use in any particular case, these

published Circuit instructions, often referred to as “pat-

tern” instructions, reflect the work of judges and lawyers

with significant experience in criminal trials, id. at v, ix;

but of course, “pattern” instructions don’t fit every case,

see United States v. Hill, 252 F.3d 919, 922 (7th Cir. 2001).)

DiSantis argues that, by authorizing the jury to con-

sider his prior inconsistent statements for their truth, the

district court unduly emphasized his inconsistent state-

ments over those of other witnesses. He observes that the

court cautioned that the jury could not consider other

witnesses’ prior inconsistent statements for their truth

unless the witnesses made the statements “under oath.”

According to DiSantis, highlighting his prior, unsworn,

inconsistent statements as substantive evidence, while

limiting non-party witnesses’ prior inconsistent state-

ments to impeachment-only evidence, drew a prejudicial

distinction between him and other witnesses.

DiSantis is correct that the district court’s instructions

set different standards for the substantive use of his and

other witnesses’ prior inconsistent statements. DiSantis is

incorrect to suggest that this party-based distinction is in

any way legally erroneous. The Rules of Evidence plainly

distinguish between the prior inconsistent statements of

non-party witnesses and of party-opponents like DiSantis.

The former are admissible as non-hearsay, substantive

8 No. 07-3692

evidence only if “subject to cross-examination” and “given

under oath.” Fed. R. Evid. 801(d)(1)(A); United States v.

Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988) (“If a prior

inconsistent statement meets the [oath and cross-examina-

tion] requirements of Rule 801(d)(1)(A) it may be ad-

mitted as substantive evidence . . . . A prior inconsistent

statement that does not meet one of the criteria of Rule

801(d)(1)(A), however, may be used only for the purpose

of impeaching the witness.”). The latter are admissible as

substantive evidence even if not given under oath. Fed. R.

Evid. 801(d)(2)(A); United States v. Spiller, 261 F.3d 683,

690 (7th Cir. 2001) (“A party’s own statements offered

against him are considered admissions by a party-oppo-

nent, and, as such, are not hearsay and are admissible

under Fed. R. Evid. 801(d)(2)(A).”). The district court’s

instruction on the substantive use of DiSantis’s prior

inconsistent statements was unquestionably a correct

statement of the law.

DiSantis also argues that his police report did not

qualify as an admission by a party-opponent, such that

the district court had no basis for instructing the jury on

the substantive use of his prior inconsistent statements.

However, under Rule 801(d)(2)(A), “written statements

may be admitted as non-hearsay against the party who

made the statement.” Thanongsinh v. Bd. of Educ., 462 F.3d

762, 779 (7th Cir. 2006); see also Spiller, 261 F.3d at 690

(characterizing a defendant’s handwritten ledgers in-

dicating the quantities of crack cocaine that he sold as

admissions by a party-opponent); United States v. Harvey,

117 F.3d 1044, 1049-50 (7th Cir. 1997) (concluding that

a defendant’s handwritten letters and diaries docu-

No. 07-3692 9

menting his marijuana production were admissions by a

party-opponent). Applying that principle in a similar § 242

case arising out of a police officer’s use of excessive

force, the First Circuit concluded that the officer’s arrest

report fell within the hearsay exemption of Rule

801(d)(2)(A). United States v. Rios Ruiz, 579 F.2d 670, 675-77

(1st Cir. 1978). Likewise, DiSantis’s prior inconsistent

statements in his police report qualified as party admis-

sions, and the district court committed no error in in-

structing the jury that they could consider those state-

ments for their truth.

B. Bodily Injury

DiSantis next objects to the jury instruction defining the

“bodily injury” element of § 242, which, if proved, triggers

an enhanced ten-year maximum sentence under the

statute. The district court gave the government’s pro-

posed instruction on bodily injury, which provided:

If you find that defendant DiSantis is guilty of

any count, you will have to determine whether the

government proved beyond a reasonable doubt

that defendant’s acts resulted in bodily injury with

respect to that count. The government need not

prove that the defendant intended to cause bodily

injury to the victim; the government need only

prove that bodily injury resulted from the defen-

dant’s unlawful conduct. “Bodily injury” includes

any injury that is painful and obvious, even if the

victim does not seek medical attention. Bodily

injury includes a cut, abrasion, bruise, physical

10 No. 07-3692

pain, or any other injury to the body no matter

how temporary.

DiSantis argues that this instruction is too broad, reaching

even trivial forms of bodily injury not intended to fall

within the reach of § 242. Before addressing this argu-

ment, we must resolve the government’s claim that

DiSantis has waived, or at least forfeited, his objection

to the bodily injury instruction.

A defendant waives an objection to jury instructions

if “the record illustrates that the defendant approved of

the instructions at issue.” United States v. Pree, 408 F.3d

855, 872 (7th Cir. 2005) (quoting United States v. Griffin,

84 F.3d 912, 924 (7th Cir. 1996)). The “touchstone” of the

waiver inquiry is “whether and to what extent the defen-

dant ha[s] actually approved of the jury instructions

assigned as error on appeal.” Griffin, 84 F.3d at 924. Waiver

“extinguishes any error” and “precludes appellate re-

view.” Pree, 408 F.3d at 872.

In contrast to waiver, forfeiture occurs where a de-

fendant fails to object to a proposed jury instruction by

“stating distinctly the matter to which the [defendant]

objects and the grounds of the objection.” United States v.

Wheeler, 540 F.3d 683, 688 (7th Cir. 2008) (quotation omit-

ted); see also Fed. R. Crim. P. 30(d) (providing that ob-

jections to jury instructions “must inform the court of the

specific objection and the grounds for the objection”).

Although forfeiture does not preclude appellate review

as does waiver, we review forfeited objections only for

plain error. Griffin, 84 F.3d at 924-25. An error is plain if

it was “(1) clear and uncontroverted at the time of appeal

No. 07-3692 11

and (2) affected substantial rights, which means the error

affected the outcome of the district court proceedings.”

Wheeler, 540 F.3d at 689 (quotation omitted). Further, plain-

error review is “particularly light-handed in the context

of jury instructions,” since it is unusual that any error in

an instruction to which no party objected would be so

great as to affect substantial rights. Griffin, 84 F.3d at 925.

During the jury instructions conference, DiSantis’s

counsel objected to the portion of the instruction providing

that the government only had to prove that bodily injury

“resulted from” DiSantis’s conduct. Defense counsel

argued that the instruction should require that DiSantis

actually “caused” bodily injury. The court rejected the

proposed change as inconsequential, since the govern-

ment’s theory relied on proving causation:

THE COURT: . . . they [the govern-

ment] are not going to

argue—they are going to

argue that there was a

cause and effect relation-

ship.

DEFENSE COUNSEL: Okay.

THE COURT: I think this is a correct

instruction, but I do not

think your fear is going

to—there is any risk of

your fear materializing,

seriously. Okay?

DEFENSE COUNSEL: Thank, you Judge.

12 No. 07-3692

We disagree with the government’s characterization

of counsel’s thanking the judge as a waiver of the objec-

tion to the bodily injury instruction. We read that

response as a display of civility after having one’s argu-

ment heard and rejected, not as the type of actual ap-

proval of a jury instruction that would constitute waiver.

Cf. United States v. Anifowosche, 307 F.3d 643, 650 (7th Cir.

2002) (defense counsel’s affirmative response to the

court’s statement for the record “that the instructions

were given without objection by either side” was a

waiver); Griffin, 84 F.3d at 923-24 (defense counsel’s

agreement that it preferred the instruction offered by the

court was a waiver). Moreover, at the end of the instruc-

tions conference, defense counsel expressly preserved

his “continuing objection to the jury instruction on

bodily injury . . . .” The court responded that “the instruc-

tion objections have all been preserved.”

Although DiSantis did not waive his objection to the

bodily injury instruction, we agree with the government

that he forfeited it. As noted above, DiSantis’s objection

at trial focused on the lack of a causation requirement,

while his objection on appeal focuses on the breadth of

the definition of “bodily injury.” Since DiSantis’s objec-

tions at trial and on appeal are “substantively different,”

we will limit our review of the instruction for plain error.

Wheeler, 540 F.3d at 689.

In determining whether the given instruction “correctly

states the law,” Gibson, 530 F.3d at 609, we cannot rely on

§ 242 itself, which does not define bodily injury. However,

the final sentence of the instruction tracks the language

No. 07-3692 13

of several criminal statutes that define bodily injury as

“(A) a cut, abrasion, bruise, burn, or disfigurement;

(B) physical pain; (C) illness; (D) impairment of a function

of a bodily member, organ, or mental faculty; or (E) any

other injury to the body, no matter how temporary.” 18

U.S.C. § 831(f)(5) (prohibited transactions involving nuclear

materials); id. § 1365(h)(4) (tampering with consumer

products); id. § 1515(a)(5) (definition applicable to wit-

ness tampering, § 1512, and witness retaliation, § 1513); id.

§ 1864(d)(2) (hazardous or injurious devices on federal

lands). The remaining portion of the instruction is

similar to the definition of bodily injury provided by the

Sentencing Guidelines. See U.S.S.G. § 1B1.1 cmt. n.1(B)

(defining bodily injury as “significant injury; e.g., an

injury that is painful and obvious, or is of a type for

which medical attention ordinarily would be sought”).

Relying on these provisions, two other circuits have

appropriately approved jury instructions on the bodily

injury element of § 242 similar to the instruction given

here. See United States v. Bailey, 405 F.3d 102, 111 (1st

Cir. 2005); United States v. Meyers, 972 F.2d 1566, 1572-73

(11th Cir. 1992).

Based on this authority, we cannot say that the district

court’s instruction on bodily injury provided the jury

with an incorrect statement of the law, especially since

DiSantis has failed both in the district court and on appeal

to offer an alternative definition of bodily injury. See

Myers, 972 F.2d at 1572 (observing that the defendant

had challenged the breadth of the bodily injury instruc-

tion but had not offered the district court an alternative

definition). DiSantis has failed to show any “clear and

14 No. 07-3692

uncontroverted” error in the instruction that would justify

reversal on plain-error review. Wheeler, 540 F.3d at 689.

Moreover, given the trial testimony on the extent of

bodily injury suffered by Hector Montes, DiSantis cannot

show that any error in the instruction “affected the out-

come of the district court proceedings.” Id. Hector testi-

fied that DiSantis, infuriated by Hector’s inability to tell

him about the video camera’s memory stick, struck

Hector with the camera once on the face and again on

the head. Hector suffered headaches and a cut on his face

to the right of his nose. Richard Montes’s testimony

confirmed that DiSantis hit Hector in the face, drawing

blood, and the government introduced a police photo of

Hector following his arrest that showed a red mark to

the right of his nose. Hector also testified that DiSantis

grabbed his testicles during a pat-down search, causing

pain, and that Hector went to the hospital following his

release from the Cicero police station to seek treatment

for his injuries.

Based on this evidence, the injuries suffered by Hector

would satisfy a definition of bodily injury far more re-

strictive than that given by the district court. So even if

DiSantis were correct that the court’s definition was

too broad, that error would be harmless.

C. Reasonable Force

DiSantis’s third argument challenges the jury instruction

defining the “reasonable force” that DiSantis could use in

detaining Hector Montes without violating his constitu-

tional rights. The given instruction provided:

No. 07-3692 15

In this case, if you find that the defendant used

force against . . . Hector Montes, you must then

determine whether the force he used against that

individual was reasonable or unreasonable. In

making that determination, you should consider

all the circumstances from the point of view of an

ordinary and reasonable officer on the scene,

including the seriousness of the offense that the

individual may or may not have committed,

whether that individual posed an immediate

threat to the safety of defendant DiSantis, and

whether that individual was actively resisting

arrest or attempting to evade arrest by flight.

DiSantis argues that this instruction fails to adequately

define what force is reasonable “from the point of view of

an ordinary and reasonable officer on the scene.” Because

no witness was qualified as an expert on reasonable

police force, DiSantis continues, the instruction invited

the jury to attach undue weight to the testimony of

Officer Joseph Melone, a government witness who was

the only other “officer on the scene.”

Again, our first task in addressing this argument is to

ascertain the applicable standard of review. During the

jury instructions conference, defense counsel expressed

concern with the phrase instructing the jury to “consider

all of the circumstances and point of view of an ordinary

and reasonable officer on the scene.” The court responded

that the language was in many ways favorable to DiSantis,

telling jurors that “objectivity is the standard” and that

they may not judge reasonable force from their own

16 No. 07-3692

“particularly sensitive” viewpoints. Counsel seemed to

accept this response, and the parties moved on to discuss

other instructions. When the court later returned to the

reasonable force instruction and asked whether the

defense “was comfortable with the rest of it,” counsel

balked: “I can’t say ‘comforted,’ but I do not even know

how to frame my argument. Something feels wrong

about it, but I do not think that is going to help my posi-

tion.”

This expression of general discomfort falls short of the

specific objection that we require in order to preserve

a challenge to a proposed jury instruction. See Wheeler,

540 F.3d at 688. We will accordingly review the instruc-

tion only for plain error. And the district court did not

plainly err in giving an instruction that so closely tracks

the Supreme Court’s description of the type of reason-

able force that an arresting officer may use without vio-

lating a suspect’s Fourth Amendment rights. In Graham

v. Connor, 490 U.S. 386, 388 (1989), the Court held that

claims of excessive police force against an arrestee are

subject to a test of “objective reasonableness.” That test

“requires careful attention to the facts and circumstances

of each particular case, including the severity of the

crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade

arrest by flight.” Id. at 396. The “ ‘reasonableness’ of a

particular force must be judged from the perspective of a

reasonable officer on the scene.” Id. Relying on Graham,

we have upheld a jury instruction that put forth this

objective, “reasonable law enforcement officer on the

No. 07-3692 17

scene” test in another § 242 case charging a police officer

with the use of excessive force. United States v. Brown, 250

F.3d 580, 586 (7th Cir. 2001). DiSantis’s challenge to the

district court’s reasonable force instruction is therefore

without merit, especially since, as with the bodily

injury instruction, DiSantis fails to offer an alternative

definition of reasonable force.

We also disagree with DiSantis that the instruction

would have been adequate only if accompanied by expert

testimony on reasonable police force. Although in some

instances expert testimony may assist the jury in deter-

mining whether an officer used excessive force, see Kladis

v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987), expert testi-

mony is by no means required in all excessive force

cases. Since the question of excessive force is so fact-

intensive, the jury will often be “in as good a position as

the experts” to decide whether the officer’s conduct was

“objectively reasonable.” Thompson v. City of Chicago, 472

F.3d 444, 458 (7th Cir. 2006). The jury in this case, having

heard extensive testimony on the facts and circumstances

surrounding the traffic stops, was well-positioned to

decide whether DiSantis used reasonable force.

D. Missing Witness Instruction

DiSantis’s final argument challenges the district

court’s refusal to give a “missing witness” instruc-

tion—that is, an instruction that the prosecution’s failure

to call a witness may give rise to an inference that the

witness’s testimony would have been unfavorable to the

government. United States v. Gant, 396 F.3d 906, 910 (7th

18 No. 07-3692

Cir. 2005) (citing Fed. Crim. Jury Instr. 7th Cir. 3.24 cmt.

(1999)). DiSantis argues that the court should have ten-

dered a missing witness instruction as to Robert Bertucci

and Steven Roden, passengers in Pine’s car during the

traffic stop and potential government witnesses.

A district court has “broad discretion” in refusing to

give missing witness instructions, which are generally

disfavored. See United States v. Brock, 417 F.3d 692, 699 (7th

Cir. 2005). “To establish entitlement to a missing witness

instruction, a defendant must prove two things: first, that

the absent witness was peculiarly within the govern-

ment’s power to produce; and second, that the testimony

would have elucidated issues in the case and would not

merely have been cumulative.” Gant, 396 F.3d at 910

(quoting United States v. Valles, 41 F.3d 355, 360 (7th

Cir. 1994)).

It is clear from the record that Bertucci and Roden were

not so peculiarly within the government’s control as to

justify a missing witness instruction. At the instructions

conference, the district court noted that the defense

could have subpoenaed both Bertucci and Roden, yet

defense counsel offered no explanation for failing to do

so. The absence of any explanation, either in the

district court or on appeal, why the defense did not

subpoena these witnesses demonstrates that DiSantis

was not entitled to a missing witness instruction. See id.

(observing that the defendant had neither attempted to

subpoena the witness nor “offered a satisfactory explana-

tion for failing to do so”); United States v. Romo, 914

F.2d 889, 894 (7th Cir. 1990) (noting that the defendant

No. 07-3692 19

failed to subpoena, interview, or request the production

of the witness); cf. United States v. Cochran, 955 F.2d 1116,

1122 (7th Cir. 1992) (affirming the district court’s refusal

to allow comment on the absence of government wit-

nesses during closing arguments where the defendant

“could have issued subpoenas to both ‘missing wit-

nesses’ ”).

Although the absence of peculiar government control is

alone sufficient to deny a missing witness instruction,

DiSantis also fails to explain how Bertucci’s and Roden’s

testimony would have “elucidated issues.” Gant, 396

F.3d at 910. While these men were passengers in Pine’s

car and so might have offered some material testimony

on the charged violation of her rights (of which DiSantis

was acquitted), they presumably did not even see the

assault on Hector Montes, which was the basis of

DiSantis’s conviction. Both requirements for a missing

witness instruction are lacking.

III. Conclusion

For the foregoing reasons, we A FFIRM DiSantis’s con-

viction.

5-4-09