Response in Opposition as to Carla Jackson, Teldrin Foster filed by USA — USA v. Thomas et al. (Dkt. 924, N.D. Ga.)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00296-JPB-CMS · Doc. 924 · 2024-02-14 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
UNITED STATES OF AMERICA 
v. 
TELDRIN FOSTER AND 
CARLA JACKSON 
 
Criminal Action No. 
1:20-CR-296-JPB 
United States’ Opposition to “Missing Witness” Jury Instruction 
The United States of America, by Ryan K. Buchanan, United States 
Attorney for the Northern District of Georgia, and Tal C. Chaiken and 
Samir Kaushal, Assistant United States Attorneys, and by Glenn S. Leon, 
Chief of the Fraud Section, and Siji Moore, Trial Attorney, respectfully files 
this Opposition to “Missing Witness” Jury Instruction. 
Background 
Nine days ago, on February 5, 2024,1 in discussing issues that may 
come up during trial, the United States previewed that there may be a Fifth 
Amendment privilege issue for co-defendant Ricky Dixon: 
Mr. Foster may be having a witness appear, Ricky 
Dixon, which is another individual who may 
testify on behalf of the defense. And if he testifies, 
the same issue [the Fifth Amendment privilege] 
comes up. According to the docket, he is pro se at 
this time and he has a pending 2255. So this is an  
 
1 The trial date of February 5, 2024, was set over eight months ago, on 
May 11, 2023. (Doc. 676.)  
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issue that there just needs to be a frank discussion 
about. This is not an effort to influence any 
particular Witness’s testimony. It is simply a way 
to protect those defendants’ rights. That is all the 
government has proposed and tossed out there for 
the Court to consider as we approach these -- as we 
move towards that part of the case. 
(February 5, 2024 Transcript at 32:1–11.)2 After the United States raised the 
issue, defense counsel3 stated that they were going to ask that Dixon be 
appointed counsel and the Court authorized Dixon to receive court-
appointed counsel. (See id. at 33:2–5.) Even though the issue was raised on 
February 5, defense counsel did not seek to confer with the United States 
on that day. Defense counsel also chose not to do so on February 6, 7, 8, 9, 
10, and 11. 
On February 12, the United States again sought clarity from defense 
counsel on Dixon’s testimony, asking to have an “educated discussion” 
beforehand so that everyone could be prepared for issues that might arise: 
With Mr. Dixon, he has been appointed counsel by 
the Court. I’m not certain if he has had an 
opportunity to speak with his attorney. He may 
not even know why he is coming to this  
 
2 The United States learned of Dixon’s subpoena from the Bureau of 
Prisons, which mistakenly believed that the United States had issued the 
subpoena. (February 5, 2024 Transcript at 42:9–18.) 
3 All references to “defense counsel” in this motion refer to defendant 
Teldrin Foster’s counsel. 
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courthouse. And there may need to be some time 
that he needs to speak with his lawyer. We have 
no idea what the substance of his testimony might 
be and, therefore, can’t really say what issues 
might arise if he is called to testify. And we think 
it makes sense to have a discussion about what the 
defense intends to elicit from Mr. Dixon so that we 
can have an educated discussion about what issues 
may come up during his testimony. 
(February 12, 2024 Transcript at 219:25–220:10.) Defense counsel declined 
the United States’ request to address Dixon’s testimony. (Id. at 221:5–6 
(“[I]t sounds like, [United States], [defense counsel] has declined your offer 
to give a proffer of what she intends to elicit from Mr. Dixon.”).) After 
defense counsel declined to discuss the matter, the United States noted 
that it was trying to engage in an effort to work through issues and 
“facilitate a smooth completion of this trial so that we don’t have to 
inconvenience [the Court] and the jury.” (Id. at 221:12–16.)  
The next morning, on February 13, before Dixon was scheduled to 
testify, defense counsel conveyed that Dixon was purportedly willing to 
testify on behalf of Foster if he received immunity. (February 13, 2024 
Transcript at 48:20–49:8.) With the trial set to resume, the United States 
conveyed that it was not in a position to grant immunity because it lacked 
authority to do so and that it had no reason to do so here. (Id. at 50:2–3.) 
The Court asked defense counsel what Dixon would say on the stand, 
defense counsel replied that they had not met with Dixon, and the Court 
observed that “this is not a situation in which [the defense] investigator 
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has spoken with Mr. Dixon before, knows what Mr. Dixon is going to say, 
and now he is refusing to testify.” (Id. at 50:14–23.)  
Over the United States’ objection, Dixon was later called by defense 
counsel and he testified, with his court-appointed lawyer standing by his 
side at the witness stand. (Id. at 95:4–97:7.) Defense counsel asked 
numerous questions of Dixon, with each question crafted to effectively 
testify through the question. (Id. at 98:7–101:10.) After a few preliminary 
questions, Dixon invoked the Fifth Amendment over and over. (Id.) When 
defense counsel’s questions were complete, the Court required Dixon to 
answer whether he participated in a proffer session with the United States 
and he answered affirmatively. (Id. at 101:12–102:8.) The United States did 
not cross-examine Dixon.4 
After Dixon testified, defense counsel stated that, without his 
invocation, she believed that Dixon would have testified that co-defendant 
Darrell Thomas told Dixon to identify Foster and deny knowledge of 
Thomas. (Id. at 105:24–106:3.) When the United States noted that defense 
counsel’s claims were speculative, defense was invited by the Court to 
elaborate on the record and declined to do so. (Id. at 108:17–109:13 (“I’ll 
just say that it’s based on communications that have not happened in this 
courtroom.”).) 
 
4 Dixon’s counsel noted that he was advising Dixon not to answer 
questions in part because he did not want to open the door to cross-
examination from the United States. (Id. at 101:21–23.) 
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Thus, it appears that: (i) even though this trial has been set for months, 
defense counsel and their investigator never spoke with Dixon prior to his 
testimony and (ii) defense counsel spoke with Dixon’s attorney prior to his 
testimony. Although the United States is not certain, the conversation with 
Dixon’s attorney seemingly necessarily had to have occurred on the day of 
Dixon’s testimony because Dixon’s attorney had not met with Dixon until 
that day. 
At the end of the trial, during the charge conference, defense counsel 
requested a “missing witness” instruction. 
Argument 
Foster is not entitled to a “missing witness” instruction nor should he 
be permitted to argue during closing for an adverse inference based on 
Dixon’s invocation of the Fifth Amendment. “Under the missing witness 
instruction rule, ‘[i]f it is peculiarly within the power of either the 
prosecution or the defense to produce a witness who could give material 
testimony on an issue in the case,’ then failure to call that witness permits 
an inference that the testimony would have been unfavorable to the party 
who refused to call the witness.” United States v. Raphael, 487 F. App’x 490, 
500 (11th Cir. 2012) (quoting United States v. Link, 921 F.2d 1523, 1529 (11th 
Cir. 1991)); United States v. Richard, 678 F. App’x 927, 941 (11th Cir. 2017). 
“Ordinarily no inferences are permitted as a result of the failure to call to 
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the witness stand one whose testimony would be privileged.” McClanahan 
v. United States, 230 F.2d 919, 926 (5th Cir. 1956).5  
While the Eleventh Circuit has not addressed the issue of whether the 
government’s refusal to grant immunity to a witness may serve as a basis 
for a missing witness instruction, “every circuit to have considered this 
question has held that the government’s mere ability to grant immunity, 
without more, does not make a witness who invokes the Fifth Amendment 
right not to testify peculiarly available to the government.” Richard, 678 F. 
App’x at 941 (internal quotation marks omitted) (citing cases); Raphael, 487 
F. App’x at 500 (same).6  
 
5 Decisions of the Fifth Circuit rendered before October 1, 1981, 
constitute binding precedent in the Eleventh Circuit. Bonner v. City of 
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).   
6 Defense counsel suggested yesterday that the “without more” clause 
referred to whether there was a showing that the testimony would be 
favorable. They are mistaken. See United States v. St. Michael’s Credit Union, 
880 F.2d 579, 597–98 (1st Cir. 1989) (holding that “the government’s power 
to grant immunity from prosecution” does not make a witness “peculiarly 
available” to the government); United States v. Brutzman, 731 F.2d 1449, 
1453–54 (9th Cir. 1984) (where the government “chose not to seek use 
immunity to obtain” testimony from a witness, holding that “[w]here a 
witness’ unavailability results from an invocation of the privilege against 
self-incrimination, the witness is unavailable to both parties, and the 
court’s refusal to give an absent witness instruction is proper”); United 
States v. Simmons, 663 F.2d 107, 108 (D.C. Cir. 1979) (“Reed had indicated 
out of the presence of the jury that if called to the witness stand she would 
invoke her Fifth Amendment right and refuse to testify . . . a witness has 
the right to exercise such privilege without taking the stand. It was also 
correct in such circumstances for the court to refuse a missing witness 
instruction, since Reed was unavailable to either party.”).  
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First, the law plainly does not support issuance of the instruction. 
“[T]he government’s mere ability to grant immunity to a witness who 
claims the Fifth Amendment privilege does not make that witness 
peculiarly available to the government.” Raphael, 487 F. App’x at 500. This 
general rule remains true even if “the government could have easily 
granted immunity and had no legitimate reason for refusing to do so.” Id.  
Cases from the Eleventh Circuit on this issue are instructive. In Raphael, 
the defendant attempted to present an entrapment defense that alleged 
coercion by a confidential informant. Id. at 495. By the time trial was held, 
the confidential informant was in state custody on an attempted murder 
charge. Id. at 498. The defendant wanted to call the confidential informant 
to “demonstrate that [the confidential informant] lied to the police.” Id. at 
 
 
The “more” that the Raphael and Richard Courts appear to be referring 
to are two possible exceptions to the general rule against issuing a 
“missing witness” instruction when an individual invokes his Fifth 
Amendment privilege: “a substantial showing of abuse of prosecutorial 
discretion” and where “circumstances suggest that the witness’s testimony 
would have been exculpatory,” Raphael, 487 F. App’x at 500. United States 
v. Rios, 636 F.3d 168, 172 (5th Cir. 2011) (“[Defendant] does not argue 
prosecutorial abuse of discretion, so we need not consider whether 
exceptions apply.”); United States v. Flomenhoft, 714 F.2d 708, 713 (7th Cir. 
1983) (“Absent a substantial showing of prosecutorial abuse of discretion, 
courts will not review a prosecutor's immunization decision.”); United 
States v. Myerson, 18 F.3d 153, 160 (2d Cir. 1994) (“[I]n the absence of 
circumstances that indicate the government has failed to immunize an 
exculpatory witness, a district court does not abuse its discretion by 
refusing to give a missing witness charge.”). 
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499. In a hearing outside the presence of the jury, the district court 
determined that the confidential informant could invoke his Fifth 
Amendment right and canceled a writ of habeas corpus ad testificandum 
to produce the confidential informant at the request of the government. Id. 
After closing argument, the defendant requested a “missing witness” 
instruction and the district court—even though it expressed concern that 
the government had not granted the confidential informant immunity, id. 
at 499–500, and stated that it would have “signed [an] immunity order in a 
minute if the government had requested one,” id. at 500—rejected the 
instruction because the confidential informant was absent as a result of his 
Fifth Amendment invocation. Id. at 500.  
On appeal, the defendant claimed that “the government could have 
easily granted [the confidential informant] immunity for any conduct” and 
that “the government had no legitimate interest in refusing to grant . . . 
immunity.” Id. But the Eleventh Circuit found no error, noting that 
whether “the government could have easily granted immunity and had no 
legitimate reason for refusing to do so does not affect our application of 
this general rule.” Id. The Eleventh Circuit added that without a 
“substantial showing of abuse of prosecutorial discretion” or 
circumstances that “suggest that the witness’s testimony would have been 
exculpatory,” id., the defendant’s arguments failed. Id. at 501 (“[T]his is not 
a proper case to consider whether the government’s refusal to grant its 
confidential informant immunity, where the defendant otherwise 
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presented sufficient evidence to get an entrapment defense instruction, 
would have satisfied one of these exceptions.”).  
In Richard, a confidential informant was involved in a series of drug 
transactions at the DEA’s direction. Richard, 678 F. App’x at 930–33. Days 
before trial, the confidential informant was arrested by the DEA for 
unauthorized drug transactions. Id. at 934. The government notified the 
district court and defense and also said that it would not call the 
confidential informant in its case-in-chief. Id. The confidential informant 
was produced at trial and his attorney said that the confidential informant 
would invoke the Fifth Amendment. Id. In a hearing outside the presence 
of the jury, the district court determined that the confidential informant 
was “unavailable” due to his invocation. Id. Although the confidential 
informant was unavailable, the defense was still able to impeach him 
through other witnesses. Id. at 935. The defense sought a “missing 
witness” instruction that the district court declined to issue. Id.  On appeal, 
the Eleventh Circuit held that “[t]he district court did not abuse its 
discretion in declining to give a missing witness instruction because [the 
confidential informant’s] Fifth Amendment invocation rendered him 
equally unavailable to both the government and the defense.” Id. at 941. 
The principles of Raphael and Richard apply with even more force here. 
In this case, the United States could not have “easily granted immunity,” 
as the Raphael Court speculated might be possible. Raphael, 487 F. App’x at 
500. The United States, due to defense counsel’s dilatory tactics, was not 
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positioned to handle an immunity request right before Dixon’s testimony. 
A grant of immunity is not a simple act done on the spur of the moment. It 
requires supervisory approval (here, not just from the U.S. Attorney’s 
Office but from the Fraud Section in Washington, D.C.). Logistically, 
initiating and completing the processes required for evaluating an 
immunity request in the brief time available before Dixon was going to 
testify was not a viable option for the United States, nor would it have 
been conducive to an orderly completion of this trial. Additionally, unlike 
the confidential informants in Raphael and Richard, the investigation (and 
also the United States’ case-in-chief at trial) never relied on Dixon nor was 
Dixon a confidential informant for the government. 
Second, and relatedly, defense counsel waited until the last minute to 
even broach the topic of immunity with the United States, despite the 
United States’ two invitations—once over a week ago and, again, the day 
before Dixon was set to testify—to discuss Dixon and determine what 
issues might arise. Having waited until just before Dixon’s testimony, 
Foster’s requested instruction, which suggests to the jury that they may 
infer that Dixon’s testimony would be unfavorable to the United States 
due to the “[t]he government’s failure to grant immunity,” (Doc. 922 at 2), 
rings hollow. The reality is that the failure lies with Foster for delaying 
addressing this matter until the United States had no way to meaningfully 
address it. In Myerson, the Second Circuit “noted that “eminent authority 
suggests caution in developing elaborate rules of law defining the 
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circumstances when the right [to a missing witness charge] exists.” 
Myerson, 18 F.3d at 160 (internal quotation marks omitted). “This is 
particularly true,” the Second Circuit continued, “in light of the usual aura 
of gamesmanship that frequently accompanies requests for a missing 
witness charge.” Id. (internal quotation marks omitted). This request for 
the “missing witness” instruction appears to be exactly that, 
gamesmanship. 
Third, the possible exceptions to the general rule against issuing a 
“missing witness” instruction when an individual invokes his Fifth 
Amendment privilege—“a substantial showing of abuse of prosecutorial 
discretion” and where “circumstances suggest that the witness’s testimony 
would have been exculpatory,” Raphael, 487 F. App’x at 500—do not 
change the analysis. There is nothing in the record to suggest any showing 
of “abuse of prosecutorial discretion,” much less “a substantial showing.” 
Id. The opposite is true. The United States twice expressed its desire to 
defense counsel to identify and address any witness issues that may arise 
with Dixon and was twice rebuffed. There is likewise nothing in the record 
showing that Dixon’s testimony would have been exculpatory. After-the-
fact claims that the testimony would have been exculpatory should be 
viewed highly skeptically. When given the opportunity to establish a 
fulsome record at the appropriate time, Foster did not do so.7 
 
7 Even if Foster’s speculative claims about what Dixon would say were 
true, there has not been a showing that that evidence would be 
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Finally, Foster has already accrued significant benefit to his defense 
through Dixon’s examination and therefore has not been prejudiced in any 
way. In questioning Dixon, defense counsel asked questions that 
essentially operated as testimony and invited the jury to draw improper 
inferences. United States v. Feliciano-Francisco, 701 F. App’x 808, 813 (11th 
Cir. 2017) (“Generally, it is improper to put a witness on the stand for the 
purpose of having the witness invoke her Fifth Amendment privilege 
against self-incrimination before the jury because doing so would invite 
the jury to draw an improper inference.”) As such, there is no unfair 
prejudice that could accrue against Foster. He has already made his 
point—albeit by inviting an improper inference—through his questioning 
of Dixon.8 
 
exculpatory. If, hypothetically, Thomas instructed Dixon to identify Foster, 
that would not be exculpatory because it does not show that Foster was 
not involved. It merely would show that Thomas, after having been 
indicted and while still fighting his charges, wanted to deflect blame from 
himself. Yesterday, even defense counsel said that Dixon’s testimony 
would have been, at most, just favorable, not exculpatory. 
8 Foster elicited substantial information about Dixon on cross-
examination of the case agent, including that Dixon lied to the FBI about 
Foster. (E.g., February 9, 2024 Transcript at 10:23–11:19; February 8, 2024 
Transcript at 269:22–277:22.) Foster also elicited testimony from the case 
agent that Dixon and another individual, Charmaine Redding “both had 
implicated Teldrin Foster in this investigation.” (February 9, 2024 
Transcript at 14:14–17.) As such, Dixon’s testimony would have been 
cumulative. 
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600 U.S. Courthouse, 75 Ted Turner Drive S.W., Atlanta, GA 30303 
(404) 581-6000   fax (404) 581-6181 
13 
Conclusion 
For the reasons stated above, the “missing witness” instruction should 
not be issued. 
 
Dated: February 14, 2024. 
RYAN K. BUCHANAN 
United States Attorney 
GLENN S. LEON 
Chief, Fraud Section 
 U.S. Department of Justice 
 
/s/ Tal C. Chaiken 
TAL C. CHAIKEN 
Assistant United States Attorney 
Georgia Bar No. 273949 
 
/s/ Siji Moore 
SIJI MOORE 
Trial Attorney, Fraud Section 
 U.S. Department of Justice 
 
/S/ SAMIR KAUSHAL 
SAMIR KAUSHAL 
Assistant United States Attorney 
Georgia Bar No. 935285 
 
 
600 U.S. Courthouse 
75 Ted Turner Drive SW 
Atlanta, GA 30303 
404-581-6000; Fax: 404-581-6181 
 
1400 New York Ave, NW 
Bond Building, 11th Floor 
Washington, DC 20005 
202-514-2000; Fax: 202-514-3708 
 
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