Evidence has been admitted that the defendant was not present at the time and place of the commission of the crime charged in the indictment. The government has the burden of proving beyond a reasonable doubt the defendant was present 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.
See Fed. R. Crim. P. 12.1 (Notice of Alibi) as to a defendant’s notice of defense.
It is error to refuse a request for an alibi instruction when there is evidence to support this theory. United States v. Lillard, 354 F.3d 850, 855 (9th Cir.2003); United States v. Hairston, 64 F.3d 491, 495 (9th Cir.1995); United States v. Zuniga, 6 F.3d 569, 571 (9th Cir.1993). It does not matter which party introduces the alibi evidence; the instruction should be given even if the alibi evidence is "weak, insufficient, inconsistent or of doubtful credibility." Hairston, 64 F.3d at 495 (citations omitted). However, the failure to give an alibi instruction sua sponte is not plain error. Lillard, 354 F.3d at 855-56.