decided: March 8, 1976; As Amended May 11, 1976.
Appeal from conviction and sentence on trial to the jury in the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, on charge of conspiracy to rob federally insured bank.
Kaufman, Chief Judge, Smith and Anderson, Circuit Judges.
On the morning of July 30, 1974, a branch of the Manufacturers and Traders Trust Company Bank located in Lackawanna, New York was robbed of roughly $400. Approximately one month later, appellant Maurice Burse was indicated for that crime and charged with violating 18 U.S.C. §§ 2113(a), 2113(b) and 371 which make it illegal to rob a federally-insured bank or to conspire to do the same.
Indicited with Burse was one Darrell DeBose. A juvenile by the name of Gary Green was designated by the grand jury as an unindicted co-conspirator.
At Burse's trial in the United States District Court for the Western District of New York (John T. Curtin, Chief Judge), the government's case rested heavily upon the testimony of DeBose, Burse's alleged partner in the July 30 holdup. DeBose had earlier pled guilty to one count of the three-count indictment stemming from that offense. Notwithstanding DeBose's testimony, the jury acquitted Burse on the substantive counts. However, Burse was convicted of conspiracy.
From that conviction, Burse now appeals. For the reasons discussed below, we reverse.
Burse presented three witnesses to support his claim that, on the morning of July 30, 1974, he was in and about his family's house. Despite this evidence indicating that Burse was not at the scene of the crime but was cleaning up his family's yard at the time of the robbery, the court refused to give a jury instruction to the effect that, even if Burse's alibi witnesses were disbelieved, the burden of proof remained with the government.
Burse now claims that the failure to give an alibi instruction was reversible error. We agree.
It is well established that, under proper circumstances, the jury must be given an alibi instruction when the defense so requests. United States v. Megna, 450 F.2d 511 (5th Cir. 1971); United States v. Marcus, 166 F.2d 497, 503-04 (3rd Cir. 1948). The reasoning behind this rule is not difficult to appreciate. Jurors are, by definition, untrained in the specifics of the law and, accordingly, must be instructed as to the legal standards they are bound to apply. In those cases 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.
Of course, failure to establish an alibi does not properly constitute evidence of guilt since it is the burden of the government to prove the complicity of the defendant, not the burden of the defendant to establish his innocence. That, however, is a point with which we cannot expect jurors to be familiar.
While jurors are apprised in general terms of the government's burden to prove each element of the charged offense beyond a reasonable doubt, this broad admonition as to the government's obligations will not suffice under circumstances such as those here. Even when the jury has been instructed as to the government's burden, there remains the danger that the effect of the attempted alibi defense will be misunderstood. Only a specific instruction can insure that this problem will not occur.
There have been occasions when the courts have viewed the absence of an alibi instruction as harmless. When such an instruction has not been requested or when the evidence of the defendant's guilt has been overwhelming or when the evidence in support of the alibi defense has been negligible or when the defendant's presence at the scene of the crime has not been an element of the offense which the government was required to prove, the courts have held that failure to provide an alibi instruction does not require reversal. United States v. Coughlin, 514 F.2d 904 (2d Cir. 1975); United States v. Cole, 453 F.2d 902 (8th Cir. 1972); United States v. ...