925 F.2d 1471 (9th Cir. 1991), 89-30120, U.S. v. Gann

Docket Nº:89-30120.
Citation:925 F.2d 1471
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tracy William GANN, Defendant-Appellant.
Case Date:February 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1471

925 F.2d 1471 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Tracy William GANN, Defendant-Appellant.

No. 89-30120.

United States Court of Appeals, Ninth Circuit

February 19, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Sept. 10, 1990.

Appeal from the United States District Court for the District of Oregon; No. CR-88-194-FR, Helen J. Frye, U.S. District Judge, Presiding



Before CANBY and TROTT, Circuit Judges, and LEGGE, District Judge [*].


This is an appeal by defendant Tracy William Gann from a conviction of bank robbery. Appellant alleges several errors during pretrial proceedings, trial and sentencing. This court discusses each below and affirms.


The first charge of error is that the district court did not give a correct instruction on appellant's defense of alibi. Defendant timely filed a notice of his alibi defense. Several witnesses testified that he may have been at work at the time of the offense, and that he drove a car different from the one used in the robbery.

The district court instructed the jury on the alibi defense by use of Instruction 6.01 from the Manual of Model Jury Instructions for the Ninth Circuit (1985 ed.). Defendant contends that this instruction was incomplete, relying upon the decision of this court in United States v. Hoke, 610 F.2d 678 (9th Cir.1980). Under Hoke, an alibi instruction should tell the jury that the government has the burden of disproving the alibi defense beyond a reasonable doubt. 610 F.2d at 679. The 1989 edition of the Manual has modified Instruction 6.01 to include that language. The instruction which the district court gave, from the 1985 edition, did not include that language.


The first question is whether defendant submitted an instruction with the requested language in a timely manner. If a defendant does not submit his proposed instruction in a timely manner, he can not complain about error in the failure to give the instruction. Lewis v. United States, 373 F.2d 576, 579 (9th Cir.1964). The resolution of this question requires an analysis of the trial record:

The day before the trial started, defendant submitted his proposed jury instructions, including an instruction on alibi using 6.01 as it read in the 1985 edition. CT 35. This is the instruction which the district court ultimately gave.

The trial began on January 10, 1989. Testimony was taken on January 10 and ended January 11. RT 424. Final arguments were given immediately after the testimony ended. RT 424. During his opening final argument, the prosecutor argued about the defense of alibi. RT 444-46. Defendant's counsel also argued the alibi defense. RT 460-63. And the prosecutor's closing argument also mentioned the defense. RT 484-86. The only reference in the arguments to the burden of proof on the defense was when the prosecutor argued: "The defendant has not and in fact cannot establish this so-called alibi defense in this case." RT 446.

There is no indication in the record that the trial judge met with the attorneys after the testimony ended, and before oral argument began, to discuss what instructions would be given. Such a meeting may have been held, but there is no reference to it in the record. It is a better practice for the trial judge to meet with the attorneys and discuss the intended jury instructions before the attorneys argue. See Fed.R.Crim.P. 30 ("The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.") However, the absence of a pre-argument meeting resulted in no prejudice to defendant here. The reason is that prior to the final arguments, defendant had submitted his alibi instruction only in the form of 6.01 which the trial court ultimately gave. Defendant did not submit an instruction requesting the additional language on the burden of proof of the alibi defense until after the oral arguments.

The trial judge met with the attorneys the next morning, January 12, after the arguments and before the jury was instructed. This meeting included a discussion of the jury instructions. Apparently the discussion was not transcribed, but there is a reference to it in the record. RT 500.

There is no record of when defendant actually submitted to the trial judge his request for the expanded version of 6.01. The government asserts that the supplemental instruction was not proposed until after the judge had orally instructed the jury. Defendant in his reply brief states that he raised the Hoke issue after the jury was orally instructed, and contends only that his supplemental request was timely because it was made before the jury retired to make its decision. Reply brief, pp. 3, 4. We accept, therefore, the government's view of the sequence of events.

The record is certainly not inconsistent with our conclusion. It indicates that the supplemental instruction was requested sometime on...

To continue reading