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4.13 Deported Material Witness

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4.13 DEPORTED MATERIAL WITNESS 

The government has failed to produce a witness whose testimony would have been material to an issue in this case. You are allowed to infer that the testimony would have been favorable to the defendant. 

Comment 

The Committee cautions that a missing witness instruction will be appropriate only in limited circumstances, such as when the government deports an alien witness knowing that the witness would testify favorably for the defense. See United States v. Leal-Del Carmen, 697 F.3d 964, 975 (9th Cir. 2013) (holding in such circumstances that "[t]he district court abused its discretion by failing to give the missing-witness instruction")