U.S. v. Zuniga, 92-10284

• Citation: 6 F.3d 569
• Decision Date: 01 October 1993
• Docket Number: No. 92-10284,92-10284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos ZUNIGA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 569

6 F.3d 569

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos ZUNIGA, Defendant-Appellant.

No. 92-10284.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1993.

Decided April 2, 1993.

As Amended Oct. 1, 1993.

John R. Hannah, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant.

William Allen Stooks, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Roger G. Strand, District Judge, Presiding.

Before: CHOY, PREGERSON, and BEEZER, Circuit Judges.

PREGERSON, Circuit Judge:

Juan Carlos Zuniga was convicted of bank robbery in violation of 18 U.S.C. Sec. 2113(a). He was sentenced to prison. He appeals because the trial court failed to give the jury a requested alibi instruction. We have jurisdiction under 28 U.S.C. Sec. 1291. We reverse.

At 5:45 p.m., April 19, 1991, the Valley National Bank in Phoenix, Arizona was robbed. A lone robber gave a bank teller a demand note that stated: "4,000 or I'll blow your head off. At you a gun I got pointed." The teller gave the robber $1,705.00. Once the robber left the bank, an off-duty police officer, who was a customer of the bank, shouted that there were "two black men" in the robber's getaway car. Police traced the license plate number of the getaway car to Andres Gonzales Portal.

Portal told police that he had driven to the bank on April 19 with a friend, Damaso Olivera, and a casual acquaintance, Juan Zuniga. Portal, like Zuniga, is a heavy-set Black man of medium height, with a medium complexion, who speaks with a Cuban accent. Portal stated that only Zuniga had entered the bank, for about ten minutes. Portal also stated that he had no knowledge of any robbery occurring in the bank.

Police then questioned Olivera, who also stated that he had no knowledge of the robbery and that only Zuniga had gone into the bank on the day in question. Olivera also testified that he, Portal, and Zuniga drove around for 35 to 40 minutes after leaving the bank. Based on Portal's and Olivera's statements the police arrested Zuniga and charged him with bank robbery in violation of 18 U.S.C. Sec. 2113(a). Upon arrest, police seized a striped shirt from Zuniga's apartment that was similar to one worn by the bank robber. Later, the victim teller identified Zuniga from a photographic lineup. A police officer testified that when he questioned Zuniga alone, Zuniga identified himself in a bank surveillance photo. This admission was neither recorded nor substantiated by another officer.

At trial, defense counsel argued that Portal, who looks like Zuniga and owns a baseball cap like the one worn by the robber, was in fact the man who robbed the bank. Defense counsel also presented alibi testimony from Zuniga's wife, Tammi Woods. Woods testified that Zuniga was at home with their baby when she returned from work on April 19, 1991. Based on the time she regularly leaves work and on bus schedules, Woods testified that she arrived home at "5:15, 5:30, [or] the latest, 6:00 [p.m.]." Based on this testimony, defense counsel asked the court to give Ninth Circuit Model Jury Instruction 6.01, concerning alibi. This instruction states:

The defendant has introduced evidence to show that he was not present at the time and place of the commission of the offense charged in the indictment. The government has the burden of establishing beyond a reasonable doubt the defendant's presence at that time and place.

If, after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find the defendant not guilty.

The issue presented by this appeal is whether the district court committed reversible error by refusing to instruct the jury on Zuniga's alibi defense. We have not yet decided whether to review a district court's denial of a proposed jury instruction de novo or for abuse of discretion. SeeUnited States v. Frank, 956 F.2d 872, 879 (9th Cir.1992) (citing United States v. Slaughter, 891 F.2d 691, 699 (9th Cir.1989)), cert. denied, --- U.S. ----, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992). We need not resolve this issue on this appeal because the result would be the same under either standard.

"A defendant is entitled to an instruction concerning his [or her] theory of the case if it is supported by law and has some foundation in the evidence." United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990) (emphasis added) (citing United States v. Lopez, 885 F.2d 1428, 1434 (9th Cir.1989), cert. denied, 493 U.S. 1032, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990)). Even if the alibi evidence is "weak, insufficient, inconsistent, or of doubtful credibility," the instruction should be given. United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987) (citing United States v. Doubleday, 804 F.2d 1091, 1095 (9th Cir.1986), cert. denied, 481 U.S. 1005, 107 S.Ct. 1628, 95 L.Ed.2d 201 (1987)).

An alibi instruction is critical because a juror, unschooled in the law's intricacies, may interpret a failure to prove the alibi defense as proof of the defendant's guilt. United States v. Hoke, 610 F.2d 678, 679 (9th Cir.1980). To avoid this possibility, "[w]here alibi is the defense[,] a suitable alibi instruction must be given when requested." Hoke, 610 F.2d at 679 (emphasis added).

A different jury instruction cannot be an adequate substitute for an alibi instruction:

[I]nstructions on the presumption of innocence of the accused, and of the necessity of fastening every necessary element of the crime charged upon the accused beyond a reasonable doubt, are not enough in cases involving the necessary presence of the accused at a particular time and place, when the accused produces testimony that he was elsewhere at the time.... [A]n instruction ... must be given so as to acquaint the jury with the law that the government's burden of proof covers the defense of alibi, as well as all other phases of the case. Proof beyond a reasonable doubt as to the alibi never shifts to the accused who offers it, and if the jury's consideration of the alibi testimony leaves in the jury's mind a reasonable doubt as to the presence of the accused, then the government has not proved the guilt of the accused beyond a reasonable doubt.

United States v. Ragghianti, 560 F.2d 1376, 1379 (9th Cir.1977) (emphasis added) (quoting United States v. Marcus, 166 F.2d 497, 503 (3d Cir.1948)). ¹

In particular, we require more than an instruction on identification of the defendant as the perpetrator of the crime. An alibi is a distinct defense. SeeWoratzeck v. Ricketts, 820 F.2d 1450, 1457 (9th Cir.1987) (defendant's "defense theory" was an "alibi defense"), vacated, on other grounds, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 916 (1988); Thomas v. Goldsmith, 979 F.2d 746, 748 (9th Cir.1992) ("alibi defense"); United States v. Bryser, 954 F.2d 79, 87 (2d Cir.) (same), cert. denied, --- U.S. ----, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992); Fed.R.Crim.P. 12.1(a) (upon proper demand, defendant shall give prosecution "written notice of [her] intention to offer a defense of alibi"); Black's Law Dictionary 71 (6th ed. 1990) (alibi is "a defense").

An alibi defense differs from other mistaken identity defenses in an important respect: A defendant might win based on an alibi...