United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3527
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Richard Lee Christy, *
*
Appellant. *
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Submitted: May 12, 2011
Filed: August 1, 2011
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Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,1 District
Judge.
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COLLOTON, Circuit Judge.
A jury found Richard Christy guilty of unlawful possession of firearms as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court2
sentenced Christy to 204 months’ imprisonment. Christy appeals his conviction,
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
2
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
arguing that the district court erred by not submitting his proposed alibi instruction
to the jury. We affirm.
I.
A grand jury returned a one-count indictment charging Christy with unlawful
possession of firearms as a previously convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Christy pled not guilty and proceeded to trial. At trial, the government
presented evidence that on the evening of July 22, 2009, Christy, along with James
Wulff, confronted Richard Babcock in an alley in Ottumwa, Iowa. Babcock testified
that Christy offered to sell him firearms. According to Babcock, although he told
Christy and Wulff that he was not interested, Wulff placed multiple firearms inside
Babcock’s nearby van. Babcock testified that Christy showed him another firearm,
but Christy said he intended to keep it. Babcock later reported this incident to law
enforcement.
Christy advanced an alibi defense based on testimony of two friends with
whom he was living at the time. The housemates testified that Christy had
accompanied them to two bars during the evening of July 22. According to their
testimony, the three returned home together between 11:30 p.m. and 12:30 a.m., well
after the time Babcock that claimed Christy and Wulff approached him in the alley.
In his proposed jury instructions, Christy included a proposed alibi instruction,
which conformed to Eighth Circuit Model Criminal Jury Instruction 9.07: “One of
the issues in this case is whether the defendant was present at the time and place of
the alleged crime. If, after considering all the evidence, you have a reasonable doubt
that the defendant was present, then you must find him not guilty.” These “model”
instructions, it must be noted, “have not been approved en masse by our court,” and
are approved “only as they are individually litigated and upheld by this court on a
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case-by-case basis.” United States v. Ali, 63 F.3d 710, 714 n.3 (8th Cir. 1995). The
district court declined to give the proposed instruction and stated:
We’re going to have to give you an alibi instruction, but you wanted an
alibi argument in my instructions, and I didn’t think that was
appropriate, so I did not give one, and I don’t think it’s prejudicial
anyway. Certainly if it is the heart of this case I am sure it will be
argued.
The court did not include an alibi instruction in the final instructions. During
final arguments, both counsel addressed the validity of Christy’s alibi. The jury
returned a verdict of guilty. The court, after observing that the evidence supported
the verdict but that the jury was presented with “a very close question,” sentenced
Christy to 204 months’ imprisonment.
Christy appeals on the ground that the district court erred by not giving the
requested instruction. When a party timely requests a specific jury instruction and
makes a proper objection to its omission, we review the district court’s action for
abuse of discretion. United States v. Brown, 478 F.3d 926, 927 (8th Cir. 2007).
II.
This court has said in many cases that “[a] criminal defendant is entitled to a
theory-of-defense instruction that is timely requested, correctly states the law, and is
supported by the evidence.” United States v. Serrano-Lopez, 366 F.3d 628, 636 (8th
Cir. 2004). The Supreme Court likewise declared that “[a]s a general proposition a
defendant is entitled to an instruction as to any recognized defense for which there
exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v.
United States, 485 U.S. 58, 63 (1988) (citing Stevenson v. United States, 162 U.S. 313
(1896)).
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The foundation for this oft-stated proposition, however, is not always well
explained. The Supreme Court in Mathews did not ground its holding in the
Constitution, id. at 66; see also id. at 69 (White, J., dissenting), and apparently relied
instead on a supervisory power over federal criminal cases. See Jackson v. Mullin,
46 F. App’x 605, 609 n.1 (10th Cir. 2002); cf. Tyler v. Wyrick, 635 F.2d 752, 753 (8th
Cir. 1980) (per curiam). The rationale offered in our cases is that a theory-of-defense
instruction “is a legitimate response to the indictment which is usually read with the
instructions,” United States v. Brown, 540 F.2d 364, 381 (8th Cir. 1976), and the
defendant should be allowed not just “a mere general or abstract charge,” but “a
specific instruction on his theory of the case,” Apel v. United States, 247 F.2d 277,
282 (8th Cir. 1957) (internal quotation omitted), that “direct[s] the jury’s attention”
to consider the defense. United States v. Casperson, 773 F.2d 216, 223 (8th Cir.
1985); see also United States v. Barham, 595 F.2d 231, 244 (5th Cir. 1979) (“[T]he
instructions must be sufficiently precise and specific to enable the jury to recognize
and understand the defense theory, test it against the evidence presented at trial, and
then make a definitive decision whether, based on that evidence and in light of the
defense theory, the defendant is guilty or not guilty.”).
The entitlement to a theory-of-defense instruction, however, is only a “general
proposition.” Mathews, 485 U.S. at 63. The defendant is not entitled to a particularly
worded instruction, United States v. Bartlett, 856 F.2d 1071, 1082 (8th Cir. 1988), or
to “a judicial narrative of his version of the facts, even though such a narrative is, in
one sense of the phrase, a ‘theory of the defense.’” Barham, 595 F.2d at 244. Even
where the court declines to give an instruction on a theory of defense that is supported
by the evidence, there is no error if the instructions as a whole, by adequately setting
forth the law, afford counsel an opportunity to argue the defense theory and
reasonably ensure that the jury appropriately considers it. Brown, 478 F.3d at 928;
Serrano-Lopez, 366 F.3d at 637; United States v. Sanders, 834 F.2d 717, 719 (8th Cir.
1987); Brown, 540 F.2d at 380-81.
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Measured against this standard, the district court’s refusal to submit the
proffered instruction was not error. The requested two-sentence alibi instruction
added virtually nothing to the instructions already given. This was a straightforward
case. The jury heard from a prosecution witness that Christy possessed firearms in
the alley on the evening of July 22, 2009, while defense witnesses testified that
Christy was with them at a bar on that evening. The court instructed the jurors that
one element of the offense was that “[o]n or about July 22, 2009, the
defendant . . . knowingly possessed one or more firearms,” and told them that “the
government must prove [the] essential elements beyond a reasonable doubt; otherwise
you must find the defendant not guilty of the crime charged.” Elsewhere, the court
instructed that “[t]he presumption of innocence alone is sufficient to find the
defendant not guilty and can be overcome only if the government proves, beyond a
reasonable doubt, each essential element of the crime charged.” No specific
instruction was necessary to alert the jury that “[o]ne of the issues in this case is
whether the defendant was present at the time and place of the alleged crime,” or that
the jurors must find Christy not guilty if they had a reasonable doubt about whether
he was present.
In support of his argument, Christy cites authorities indicating that it is error
for a court to refuse a different alibi instruction when it is timely requested by a
defendant and supported by the evidence. In United States v. Burse, 531 F.2d 1151
(2d Cir. 1976), the court reversed a conviction after the district court refused to give
an instruction to the effect that, “even if [the defendant’s] alibi witnesses were
disbelieved, the burden of proof remained with the government.” Id. at 1152. The
court reasoned that “where an alibi defense is presented, there exists the danger that
the failure to prove that defense will be taken by the jury as a sign of the defendant’s
guilt,” and concluded that only a specific instruction on that point can ensure that the
jury will understand that the burden of proof remains with the government. Id. at
1153. This court in United States v. Webster, 769 F.2d 487 (8th Cir. 1985), implied
that it was error for a court to refuse a similar instruction, but ultimately held that the
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error was harmless. Id. at 490-91. In Webster, the requested instruction, drawn from
Devitt & Blackmar, provided in part that “[t]he 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 Edward J. Devitt & Charles B. Blackmar, Federal Jury Practice
and Instructions § 13.08 (3d ed. 1977), cited in Webster, 769 F.2d at 490. The
commentary to this instruction explains that the quoted sentence was intended “to
make it clear that the government’s burden remains, even though the jury might not
accept the testimony of the alibi witnesses.” Id.3
Christy never requested in the district court an instruction comparable to those
at issue in Burse and Webster, and he does not argue on appeal that the district court
should have given such an instruction sua sponte. Under these circumstances, it was
not an obvious error for the district court to omit a particular alibi instruction that was
3
The complete instruction requested in Webster read as follows:
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.
Devitt & Blackmar, supra, § 13.08.
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never requested, see Apel, 247 F.2d at 282; cf. Burse, 531 F.2d at 1153, and it is not
a miscarriage of justice for this court to address only the particular instruction urged
by Christy. See United States v. Kent, 531 F.3d 642, 656 (8th Cir. 2008).
The judgment of the district court is affirmed.
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