*2 SNEED, Bеfore MERRILL and Circuit Judges, BLUMENFELD,* and District Judge.
BLUMENFELD, Judge: District Under an charging indictment him with aiding abetting and in the commission of a robbery, 2113(a), bank 18 U.S.C. appellant § by convicted and received a sentence years’ imprisonment. of 20 At the trial, sought he to establish an alibi defense. appeal, On the defendant contends that the (a) court erred in refusing a request- instruction, ed (b) “alibi” neglecting limit certain for impeachment purposes only. Although we reverse and remand charge, because of error in the the interest of an error-free retrial we dis- alleged cuss the second error as well.
Facts p.
At m. on approximately 3:00 October 22, 1974, the Macadam Ave. Branch of the Oregon, Portland, First National Bank of Oregon, was entered and robbed Richard Repp. Paul Repp Some 15 or 20 minutes later and the defendant arrived at the Westover Towers Apartments in an auto driven by the de- fendant with in the back seat. got something out of the car and then took from the bаck seat. Both men entered the later, apartment. About 20 minutes apartment defendant came out of the began away, shortly to drive but was there- $1,280 per- after arrested. He had on his * Blumenfeld, Joseph Judge Honorable M. Connecticut, United States District of the District of sitting designation. $970, ant to was a wad of drive him to pocket apart- In one
son. could lie containing money.1 and so that he down in of bait $80 According
back testimony, seat. their Repp at no time the defendant he Charge told The Alibi Evidence bank, intended to and the rob a aiding government’s theory sole nothing claimed to know about it. the defendant was abetting was that *3 government The contended that de- parking in waiting a car in a lot not far robbery by fendant aided abetted the and he drove the geta- bank and that from from the driving Repp away vicinity of the way car. All of the introduced evidence at testimony crime. of the three The witness- actual robbery trial showed that the of the Ragghianti, Repp, clearly and by Repp, acting bank committed alone. es— Tillson — supported Rag- a alibi defense —that classic The manager Repp bank followed out of ghianti was else (shopping somewhere corner, the bank a go and around saw him Tillson) Repp Miss robbed the bank up Macadam Avenue and turn into the and made escape. Landing shopping complex John’s before losing sight of him. A second witness ob- The specific rеquests defendant filed Repp proceed served alone at a fast walk charge the law relating on to the near the bank to the north side of John’s alibi defense. substance The of the re- Landing.2 Neither one these witnesses quested instruction an accurate state- saw automobile associated with Repp. ment of the not challenged. law was The The defendant was ap- not observed until judge refused give charge, stating: this quarter a of an proximatеly hour later “. well, . . I’m not sure there is when he driving up apart- was seen to his yet. alibi The defendant said he was some- ment near the intersection N.W. 25th where just question else. It’s a of credibili- red, joy Place and Love a sport in two-door ty.” Exception judge failure of the Repp model Fiat. At that time was in the requested alibi charge prop- seat. back erly taken.
There was
Repp
had ar-
readily
Since it was
Repp
admitted that
Chicago
day
rived from
alone,
about noon.
had robbed the bank
the sole contest-
was met at
airport by
He
ed
charge
defendant
issue on the
aiding
and abet-
ting
and Miss Deborah Tillson. After lunch at
was the defendant’s claim of an alibi—
airport restaurant, Repp
asked the de-
that he was
Repp
elsewhere when
made the
getaway.
body
if he could have the use of the car
In the
charge
fendant
court
about an hour. The
did not
mention
for
defendant
told
even
the defendant’s
claim
of an
All that
Repp that he could while
defendant
alibi.
was said
and
about
was,
the main issue
doing
Tillson
some shopping
Miss
were
They did some errands and
downtown.
“Now the government does not claim
o’clock,
went
At about 2
then
downtown.
that it was the defendant who robbed the
Ragghianti
stopped
and Miss Tillson
at Mei-
government
bank. Rather the
claims the
Frank,
department
er
downtown
defendant
aided
abetted the bank
store,
car
Repp.
by driving
and turned the
over to
robber
away
cаr
from the
back in an
They
Repp
sharing
proceeds
told
to be
hour.
bank and
from
bank, Repp
robbing
robbery.
did return to
the bank
only
After
So this is the
up
Tillson who
pick
Ragghianti and
offense with which this
corner.
waiting
today, aiding
on a street
then
here
abetting
feigned
persuade the
in a
robbery.”
illness so as to
defend-
bank
explanation
posses
underground parking
The
2.
1.
for his
There is an
lot
in
there
money
parked
stolen from
sion some of the
the bank
to have
claimed
car
rеpayment
part
robbery.
in
for
by
was that
of it was
a loan
before the
robbery
He returned there after the
Repp,
picked
up.
to be used
and the rest was
him to
the car
purchase drugs
Repp.
any of the
the court discuss
“And I think on
time did
At no
record that you’ve
to the issues.
heard
as it related
this —and the evidence that you’ve
heard in this
it’s a question of
should have
The alibi instruction
you
whether
government’s
believe in the
requested is The instruction
given.
been
theory of the cаse that the defendant did
verba 11.31 of Devitt and Black
haec
§
know and participate in what was going
mar,
Jury Practice and Instruc
Federal
on or the defendant’s theory that he
tions,
(1970),
approved
2d ed.
and was
know,
didn’t
wasn’t even in the automo-
DePalma,
v.
States
414 F.2d
United
bile at the time it went out to the bank.
general
rule as to the
it’s a question
So
of weighing the credi-
need for the alibi instruction
discussed in
bility
witnesses,
and there’s no
Marcus,
503-
duty on this defendant
to investigate or
1948),
(3d
right
point.
There
try to find out what was happening.
If
the court stated:
*4
that were the
it
your
would be
duty
“By
weight
authority
the
of
it is held
to find him
guilty.”
the instructions on the presumption
that
Not only was this instruction confusing, it
accused,
of innocence of the
and of the
was inconsistent with what
jury
the
had
necessity
fastening
of
every necessary el-
been told
in general
before
terms about the
charged upon
ement of the crime
the
proof
burden of
being
government.
on the
doubt,
beyond a
accused
reasonable
are
To
jury
instruct
the
that
the case would
enough
involving
the
cases
neces-
upon
turn
they
whom
impermissi-
believed
sary presence
particu-
the accused at a
of
bly emphasized
juror
the risk of
misappre-
place,
the
pro-
lar time and
when
accused
hension of the burden of persuasion which
testimony
was
duces
that he
elsewhere at
charge
an alibi
designed
is
to eliminate.
requests
time.
If
accused
the
the
an
Beedle,
See United States v.
511, (5th 1971); Cir. Burse, (2d 1976). 531 F.2d Cir. Impeachment Testimony failing give requested
This error in
In remanding this case for a new
supplemen-
charge
compounded
trial for
failure to
instruction,
alibi
give.
tal instruction the court did
Follow- we are additionally persuaded by the fact
ing an off-the-record discussion with coun-
that hearsay
prior
evidence of
inconsistеnt
bar which the court invited
sel at
side
statements of a witness was admitted with
charge
he had finished the
and while
after
out
protection
of an admonition or in
ready
was otherwise
to retire to
struction from the court to the effect that
verdict,
gave
their
he
these addi-
only
consider
the statements could be considered
jury:
bearing
to the
on credibility.
tional instructions
Shoupe,
States v.
(6th
Tillson as
called Miss
1381
court,
say.
the final
Palermo
said
Although
has
v.
before is.
the difference in
343, 351,
States,
355,
360
79
use of a prior
United
U.S.
statement
for impeach-
(1959).
is,
1217,
1287
There
ment but not
3 L.Ed.2d
as substantive evidence may
S.Ct.
subtle,
all,
be
it
prior
bеtween
state-
has been
proper
a difference
held that
after
im-
plementation of
police
requires
from a witness
the rule
obtained
“an ex-
plicit admonition
investigation,
jury by
a criminal
to the
the course of
court
at
prior
time a
oath in
inconsistent
testimony given under
a formal
statement
admitted, and also an
There
several
instruction at
are
reasons for
proceeding.
trial,
close of the
that the
differently,
statement
treating
may
such statements
all of
be
considered only
bearing
subject
on credibility.”
which have been the
of learned
Bartley
v. United
115 U.S.App.D.C.
which need not
harrowed here.
comment
316, 318,
717,
319
(1963).
F.2d
719
Green,
And
generally,
See
California
U.S.
where
case,
here,
in that
neither was
149,
1930,
(1970).5
after the which would require pres- such arriving together appel- seen in thе car at ence, the Government’s case rested heavily and a few minutes later apartment lant’s on establishing the presence apart- as he left the appellant was arrested the bank at the time robbery. cash, large ment in of a sum of possession introduced evidence which tend- including undisputed the bait bills. These ed to show him to be elsewhere at the time facts, joined Repp- if with the assumed true of the robbery. Under these circumstances Tillson-appellant testimony, pre- would not an alibi instruction was held to be necessary guilty aiding clude a verdict of and abet- notwithstanding the fact the defend- ting. preclude To such a verdict it also ant was convicted only of conspiracy. believe, necessary jury would be for the Tillson, I Repp, appellant accept each also would teaching Burse, testified, appellant nothing knew general with which in I have quarrel, no Repp’s plans they way and that in no aided applied to the facts of this case were I robbery. particular and abetted the This convinced the alibi evidence here was Repp-Tillson-appellant testimony is not evi- strong and that the failure to give an alibi dence of an alibi. As to it the trial court instruction in any way prejudiced the appel- observed, right when it just “It’s lant. I am not so convinced. question credibility.” (R.T. 28) There is authority which supports the analysis This justify would a refusal proposition that when the alibi evidence is give an alibi instruction because an alibi strong, failure to an alibi instruc instruction is not when the alibi is tion is not error if the is instructed defense to the crime with which the the Government must establish the charged. defendant is This court has recog elements of the crime beyond a reasonable States, nized this rule in v. Todorow United doubt. United States Erlenbaugh, v. 452 439, (9th 173 F.2d 446 Cir. It was (7th F.2d 967 1971), granted cert. 405 there held that the absence from the build 973, 1194, U.S. 92 247, S.Ct. 31 L.Ed.2d ing in which false claims were made at the 239, affirmed 409 477, U.S. 93 S.Ct. 34 time such clаims were made did not entitle L.Ed.2d 446 In my view this the defendant to an alibi instruction when although doubt, not free from should be knowingly the crime included controlled that authority. causing another to make false claims in violation of 18 1001. U.S.C. See United § There question is no but that the trial Beck, 536, F.2d judge specifically required that the Govern- 1970); Tomlinson v. United 68 U.S. prove its case beyond a reasonable 106, 109, 652, 655-56, App.D.C. cert. doubt. The relevant portion of the charge denied 303 U.S. S.Ct. L.Ed. *7 was as follows: presumes “The lаw the defendant to be my I would rest reasoning dissent on this Thus, innocent of crime. defendant, the and the cited authorities were it not for the accused, though begins the trial with a that, study fact after a careful of the rec- slate, clean with no against evidence him. trial, reporter’s transcript ord and of the I The permits law nothing legal but evi- conclude the exclusively Government rested presented dence jury before the to be its theory appellant case on the that the support considered in of charge vicinity was within the of the bank and against the accused. the presumption So getaway drove the car. This invokes the of innocence alone is sufficient to acquit Burse, teaching of United you, a defendant jurors, unless the are (2d 1976), upon which the majority beyond satisfied a reasonable doubt of Burse, relies. In although the defendant the guilt after careful was robbery, both bank which require presence impartial would consideration of the bank dur- all of the evi- ing robbery, the conspiracy to rob the dence in the case.
“It that the Govern- in is not the instructions which given possible prove guilt beyond all are set out above. The test is one of reasonable doubt. Neither of these considerations would A reasonable doubt is a doubt doubt. justify failure give proper a alibi instruc- sense, upon and common the based reason tion under appellant’s Burse had evidence that of doubt would make a reasona- kind stronger. been What is lacking is unim- person beyond hesitant to act. Proof ble peached testimony of one not a participant doubt must therefore be a reasonable in, with, or charged robbery the which convincing of proof such character that support tends to the alibi. Tillson’s testi- willing rely you upon would be and act mony impeached, and, had an instruc- unhesitatingly important most of given tion been limiting the probative your own аffairs. weight of hearsay evidence of incon- already “I’ve you you told must sistent to impeachment, statements the anyone not ever convict suspi- mere strength of her testimony would not have conjecture. cion or The evidence must be been increased. In a situation in which the beyond of you satisfies each alibi evidence is stronger no than here I reasonable doubt. would permit in judge trial his discre- “The is always prosecu- burden on the tion to avoid a рossibly confusing alibi in- prove the case. This tion burden never provided struction he clearly and unequivo- defendant, shifts to the for the law never cally placed upon the Government the bur- imposes upon in a criminal den of proving the elements of the crime proving case the burden of or the burden beyond a reasonable doubt. The purpose of calling any producting of witness or the alibi in instruction analysis [sic] final any evidence. to place upon thе Government the burden of proving beyond a when, “A reasonable reasonable exists doubt doubt after only that the defendant could have commit- impartial careful and consideration of all ted the crime but also that he did so. This in jurors are purpose was adequately in served this case. certainty convinced to a moral To reverse convictions because formal charge. of the guilty the defendant So in trial procedure defects affeсting the evidence in the if the views case rights defendants’ jus- serves well neither permitting reasonably either tice, courts, people. nor the conclusions, innocence, two one should, guilt, course, the jury other My disposition of the appellant’s conten (R.T. adopt a conclusion of innocence.” regarding given tions the failure to in 187-88) limiting hearsay struction evidence of prior inconsistent statements to impeach instruction, requested alibi which is ment is quite simple. The failure of a trial margin,1 misleading set forth court to such an sponte instruction sua that it could have been to have understood does not in this circuit constitute “plain justified acquittal had Government error.” See Isaac v. United appellant not established that the 11, 15 (9th F.2d Nor do I believe This, course, together robbed bank. exception that an should be made this In theory. was not Government’s addi- case. tion, para- the substance of the last two *8 I, therefore, requеsted charge graphs respectfully contained dissent. tending present been whether the 1. “Evidence has introduced es- defendant was at the time alibi, committed, place alleged which amounts to a contention tablish offense was present you acquit the defendant was not at the time him. must place alleged always or at where he is “The will bear in mind imposes upon have committed the offense in the in- law never a defendant in a crimi- duty dictment. calling nal case the or burden producing any (C.R. witnesses or evidence.” “If, all the after consideration of 38) case, you have a reasonable doubt as to