Ms. Mae Braxton appeals from her conviction for aiding and abetting the distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1982). Ms. Braxton alleges errors in the admission of the testimony of two government witnesses and in the instructions given the jury by the trial judge. We affirm her conviction.
I. Background.
On December 10, 1987, Ms. Braxton was charged in Count I of a five-count indictment returned against her and four other persons with aiding and abetting the distribution of cocaine on July 16, 1987. On February 4, 1988, Magistrate James Groh, Jr. ordered the severance of Count I against Ms. Braxton for a separate trial.
A pretrial cоnference was held on January 8, 1988 before Magistrate Groh at which Braxton’s attorney said that he would probably be filing an alibi motion under Federal Rules of Criminal Procedure 12.1. Braxton was given fifteen days to file the notice of alibi and the government made no objection. Magistrate Groh’s Order on Preliminary Pretrial Conference memorialized that Braxton had been given until January 25, 1988 to file the notice. The government never made a written demand for the notice of alibi which Braxton filed on January 22,1988. The notice listed three individuals who would testify that Braxton was not at her residence in Janes-ville but was at a different location with them at approximately 8:30 p.m. on July 16, 1987, the day and time when the distribution of cocaine allegedly took place at Ms. Braxton’s home.
The government concedes that it never submitted a written notice stating the names and addresses of the witnesses upon whom it would rely to establish Ms. Brax-ton’s presence at her home. However, Braxton was apparently aware of the probability that the government would rely on the testimony of Detective Suzanne Wad-dell (the undercover аgent assigned to the case) and that of co-defendant Neis Quam. Ms. Braxton admitted possessing a police report prepared after an interview with Mr. Quam. She does not contest the government’s statement that it provided her counsel on February 24, 1988 (approximately one month before trial) with copies of two other reports prepared by the government after interviews with Neis Quam, as well as a report made based on interviews of Ms. Braxton’s alibi witnesses. She does not argue that she was prevented in any way from contacting Mr. Quam in order to prepare before the trial began.
The trial was conducted on March 22 and 23, 1988. The government called Officer Suzanne Waddell as its first witness. She testified that she saw Ms. Braxton at ap *559 proximately 8:00 p.m. at her apartment and described her appearance. Ms. Waddell further testified that she left the residence and returned in the company of Neis Quam at approximately 8:30 p.m. to speak with Ms. Braxton’s son, Jessie Leavy. She said that she approached Jessie Leavy, asked him if she could purchase seven quarter grams of cocaine, and then watched Leavy enter the apartment and walk over to Ms. Braxton. Waddell testified that Leavy put his hand in his pocket, moved it towards the defendant, and then put his hand back in his pocket and left the residence. Ms. Waddell said that she did not see Braxton take money or give him cocaine. However, she did testify that Leavy gave her seven quarter grams of cocaine and then she overheard Braxton say she had been shorted twenty dollars. The government then called John Nied to testify to the authenticity of the cocаine and rested its case.
During this testimony, Braxton objected pursuant to Rule 12.1(b), but the court overruled the objection. Braxton objected two more times pursuant to Rule 12.1(b) in the first day of trial. The trial judge called a bench conference at which counsel for Ms. Braxton objected that she was not provided with a written notice pursuant to Rule 12.1(b). The government responded that the written demand required by Rule 12.1 had not been made by the government. The defendant claimed that her notice of alibi was made pursuant to the Magistrate’s order. The government alsо argued that the defendant had not been prejudiced by the procedures used, because the name of the only witness the government could possibly have called to rebut Ms. Braxton’s alibi defense had been disclosed to her, i.e., Neis Quam. The court overruled the objection and permitted the testimony of Officer Waddell to stand.
Defendant presented her case by testifying, along with two alibi witnesses, that she was not at her apartment at 8:30 p.m. on July 16,1987. Before the second day of trial, Ms. Braxton moved to prevent Neis Quam from testifying in rebuttal on the grounds thаt his testimony would not rebut anything that the government did not already know before the defense made its case and that the government had already rested its case-in-chief so it could not now have Quam testify to Braxton’s presence at her apartment. The court denied this motion. Quam testified that he went with Officer Waddell to Ms. Braxton’s apartment and spoke with her there. He testified further that he believed it was Mae Braxton’s voice that he heard yell out the window that the money paid by Waddell and Quam was twenty dollars short.
Ms. Braxton’s attorney moved, at a sidе bar conference, to strike Quam’s testimony because it was improper rebuttal and that the information should have been brought in during the government’s case-in-chief. The court ruled that the testimony was properly admitted. The court reasoned that under the authority of
United States v. Cerro,
Before trial, Braxton requested four specific jury instructions: Devitt & Blackmar Burden of Proof Instruction 11.14, Devitt & Blackmar Alibi Instruction 13.08 or her proposed theory of defense instruction, and a “testimony of an accomplice” instruction. The court refused to give the Devitt & Blackmar 11.14 and 13.08 instructions, and gave the less expansive Seventh Circuit Instructions 2.06 and 4.03 instead. The court gave a theory of defense instruction which included Seventh Circuit 4.03 (alibi instruction) and an accomplice instruction but neither were as broad as those requested by defendant.
The jury returned a guilty verdict on March 23, 1988. The court sentenced Ms. Braxton on May 12, 1988.
II. Standard of Review.
With regard to the admission of the testimony of Officer Waddell and Mr. Quam,
*560
we may reverse the trial court’s decision “ ‘only upon a clear showing of abuse of discretion.’ ”
United States v. Garver,
III. Analysis.
A. Admission of Waddell and Quam Testimony.
Rule 12.1 requires that a defendant provide a notice of alibi when the government has demanded it.
1
In addition, Subsection (b) of that rule requires that the government provide in response to this alibi notice a list of the rebuttal witnesses it plans to use. However, the court in
United States v. Bouye,
Braxton argues that she was ordered to provide the notice of alibi, so that the gоvernment was required formally to provide the names of rebuttal witnesses. Nevertheless, it is undisputed that the government never requested the alibi notice pursuant to Rule 12.1. The magistrate granted defendant an extension of time to file the notice at her request, but did not order her to file it. As the government puts it, “the only difference between Bouye and the instant case is that Bouye sent his notice of alibi to the government without apparently giving advance notice of his intent to do so to the trial court.” Brief of Plaintiff-Appellee at 11-12.
In addition, even though the government did not have a duty to respond to the notice of alibi, the government did provide Brax-ton with copies of all reports of interviews with Quam as well as those the investigating officers made in reference to defendant’s proposed alibi witnesses. Finally, Ms. Braxton does not dispute that she knew that Waddell would testify and that she could contact Mr. Quam before trial. It is difficult, therefore, to see how she was prejudiced by not having formal notice of rebuttal witnesses.
The government is not required to provide a defendant with a list of all prospective government witnesses.
United States v. Napue,
Ms. Braxton argues that her case is governed by
Mauricio v. Duckworth,
Braxton’s reliance on
Taylor v. Illinois,
Braxton makes a separate argument that the government should not have been allowed to present Quam as a rebuttal witness rather than in its case-in-chief. However, defendant’s only legal authority for this proposition is that the court has discretion in determining the proper scope of rebuttal with respect to evidence which could be introduced in the case-in-chief.
Geders v. United States,
B. Jury Instructions.
Ms. Braxton argues that the trial court instructions, as a whole, were so prejudicial as to require reversal under the authority of
United States v. Crouch,
I. Burden of Proof Instruction.
Ms. Braxton requested the burdеn of proof instruction from Devitt & Blackmar II.14, 3 but the court used Federal Criminal Jury Instructions of the Seventh Circuit 2.06 (1980) and instructed the jury as follows:
The defendant is presumed to be innocent of the charge. This presumption remains with the defendant throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The government has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the government throughout the case. The defendant is not required to prove her innocence or to produce any evidence.
Docket No. 147, p. 36. Ms. Braxton argues that these instructions were insufficient in three ways. First, she argues that the jury should have been instructed that the defendant begins the trial with a “clean slate.” She argues, secondly, that the jury should have been told that they could not convict her on “mere suspicion or conjecture.” Finally, she requested an instruction that if the evidence could lead to a conclusion of guilt or innocence that the jury should find her innocent (the “two conclusion instruction”).
We point out the prefеrence of the Committee on Federal Criminal Jury Instructions of the Seventh Circuit for “eliminating confusing and unhelpful elaborations which sometimes accompany instructions on the presumption of innocence.” Committee Comment, Seventh Circuit Instruction 2.06, at 17. The “clean slate” portion of the Devitt & Blackmar 11.14 is an elaboration of the presumption of innocence instruction. The Supreme Court wrote of the requested instruction that “it appears to have been well suited to forestalling the jury’s consideration of extraneous matters ...”
Taylor v. Kentucky,
However, the principle that the defendant begins the trial with no evidence against her is included in Seventh Circuit *563 Instruction 4.03 both in the presumption of innocence section and in the part of the burden of proof instruction which provides that “[t]he defendant is not required to prove [her] innocence or to produce any evidence.” This statement, along with the caution that the presumption of innocence “remains with the defendant throughout every stage of the trial,” shows the jury that a defendant begins a trial with no evidence against her.
In addition to these instructions, the judge cautioned the jury not to rely on anything about the proceedings against Ms. Braxton except the evidence presented against her at trial. Docket No. 147, pp. 35-36. The court warned the jury not to rely on the indictment, on any media reports or on anything else heard about the case outside the courtroom. Ibid. Finally, in the court’s pre-trial instructions, the judge did instruct the jury that the defendant “starts out with a clean slate.” Docket No. 140, p. 7.
We have fоund no reversible error in cases in which no presumption of innocence instruction at all was given, so long as the jury’s instruction regarding the government’s burden of proof was sufficient.
See, e.g., United States v. De John,
Ms. Braxton’s argument that the jury should have received the two conclusion instruction has no merit, since we have found such an instruction to be acceptable, but not necessary.
United States v. Larson,
The final error claimed by Ms. Braxton with regard to the reasonable doubt instruction is that the jury should have received an instruction against conviction on “mere suspicion or conjecture.” However, such an instruction — which shows what evidence would be insufficient to show guilt beyond a reasonable doubt — is an unnecessary elaboration on the burden of proof instruction. We have found it “inappropriate for judges to give an instruction defining ‘reasonable doubt,’ ” because “ ‘[attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury.’ ”
United States v. Glass,
2. Theory of Defense Instruction.
Defendant argues that the jury should have been given the Devitt & Blackmar 13.08 alibi instruction,
4
rather than the Seventh Circuit Instruction 4.03 that was given. In addition to Instruction 4.03, the trial court included a theory of defense instruction incorporating Ms. Braxton’s specific alibi. Although Ms. Braxton gives no reason why she was entitled to the Devitt & Blackmar Instruction, she argues that an instruction should have been given which referred to the testimony of her alibi witnesses under the authority of
United
*564
States v. Martin-Trigona,
The holding of
Martin-Trigona
is that a defendant is entitled to a theory of defense instruction when it is supported by the law and the evidence, not that a defendant is entitled to any particular theory of defense instruction. An error to guard against when a defendant relies on an alibi defense is the possibility of misleading the jury into finding that the defendant’s failure to prove her alibi defense is evidence of her guilt. This error occurs when the jury has not been cautioned by an alibi instruction that the burden of proving defendant’s guilt does not shift from the government to the defendant who claims an alibi.
United States v. Burse,
In the present case, the trial court instructed as follows:
The defendant claims that she was not present at her residence on July 16, 1987 at the time the alleged offense was to have occurred.
Evidence has been introduced that the defendant was not present at the time and place where the crime charged in the indictment is alleged to have been committed. The government has the burden of establishing beyond a reasonable doubt the defendant’s presence at that time and place.
Docket No. 147, pp. 39-40. The instruction, which includes Seventh Circuit Instruction 4.03, properly reminds the jury that the burden of proof is on the government. The trial court did not err by failing to incorporate into the instruction a full summary of Ms. Braxton’s alibi evidence.
3. Accomplice Instruction.
Ms. Braxton argues that the accomplice instruction given by the court was deficient in three ways. She argues that the jury should have been instructed that “it should never convict a defendant upon the unsupported testimony of the alleged accomplice unless the jury believes that unsupported testimony beyond a reasonable doubt.” Brief of Defendant-Appellant at 24. She argues that the instruction should have included a discussion of the plea agreement entered into by accomplice Neis Quam and the possible impact that Quam’s hope of benefits could have on his credibility. Finally, she asserts that the court erred by not instructing that Quam’s guilty plea should not be used against her.
“The general rule is that accomplice instructions are preferred when accomplices testify against defendants, due to the inherent unreliability of this testimony, but the failure to give suсh an instruction is not reversible error.”
United States v. McCabe,
The court did give an accomplice instruction as follows:
You have heard testimony of Neis J. Quam who has received benefits from the government in connection with this case. You may give his testimony such weight as you feel it deserves keeping in mind that it must be considered with caution and great care.
Docket No. 147, p. 37. The instruction is the Seventh Circuit Testimony of Informer Instruction 3.20. That form instruction leaves it to the discretion of the district judge whether or not to name the specific benefit. See footnote to Instruction 3.20 at p. 42. The informant instruction was appropriately used, since the same unreliability problem is present whether it is an accomplice cooperating with the government in exchange for a reduced sentence or an informer, in exchange for money or other benefits.
Ms. Braxton’s complaint that the court erred by not instructing that there could be no conviction upon unsupported accomplice testimony unless the jury believed the testimony beyond a reasonable doubt has no merit here. Neis Quam’s testimony was extensively corroborated by that of Officer Waddell. In addition, the warning to consider the testimony “with caution and great care” served the purpose of instructing the jury not to convict based *565 only on accomplice testimony unless it found Quam’s testimony to be highly credible.
Defendant complains specifically that the accomplice instruction given by the trial judge referred to benefits already received but not to those yet to be realized. She argues that
United States v. Dailey,
Finally, Ms. Braxton asserts that the court erred by failing to warn the jury not to rely on Neis Quam’s guilty plea as evidence against her. The presence or absence of a limiting instruction is one factor in determining the prejudicial impact of the admission of a co-defendant’s guilty plea.
United States v. Fleetwood,
IV. Conclusion.
The trial court did not err by admitting the testimony of Officer Waddell and Neis Quam, since the government was not required pursuant to Rule 12.1(b) to provide a formal list of witnesses to rebut Ms. Brax-ton’s alibi. Even if Rule 12.1 required production of the list, Ms. Braxton was not prejudiced by failing to receive it. In addition, it was not error for Neis Quam to testify in rebuttal rather than in the government’s case-in-chief. The district court’s instructions to the jury did not constitute reversible error even though a more thorough accomplice instruction would have been beneficial to the jury. Ms. Brax-ton’s conviction is affirmed.
Notes
. Rule 12.1 provides in relevant part:
(a) Notice by Defendant. Upon written demand of the attorney for the government stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the attorney for the government a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish his alibi.
(b) Disclosure of Information and Witness. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the attorney for the government shall serve upon the dеfendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the government intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
Fed.R.Crim.P. 12.1(a), (b) (emphasis added).
. When he overruled Braxton’s objection to the Quam rebuttal testimony. Judge Shabaz also noted that the evidence might be cumulative, but that such an objection was waived. The issue has not been raised on appeal. In any case, admission оf cumulative evidence is not grounds for reversal absent a showing of prejudice.
Bell v. City of Milwaukee,
. Defendant requested the following instruction, omitting its definition of reasonable doubt:
The law presumes a defendant to be innocent of crime. Thus a defendant, although accused, begins the trial with a "clean slate”— with no evidеnce against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.
It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.
The burden is always upon the prosecution to prove guilt beyond a reasоnable doubt. This burden never shifts to a defendant; for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
So if the jury, after careful and impartial consideration of all the evidence in the case, has a reasonable doubt that a defendant is guilty of the charge, it must acquit. If the jury views the evidence in the case as reasonably permitting either of two conclusions— one of innocence, the other of guilt — the jury should of course adopt the conclusion оf innocence.
1 Devitt & Blackmar, Federal Jury Practice and Instructions 11.14, at 310-11 (3rd ed. 1977).
. The requested alibi instruction provides:
Evidence has been introduced tending to establish an alibi, which amounts to a contention that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the indictment.
If, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you must acquit him.
The jury will bear in mind the government’s burden of establishing the involvement of the defendant, and all other essential elements of the offense as defined in these instructions, by proof beyond a reasonable doubt.
1 Devitt & Blackmar § 13.08.