Appeal from the United States District Court for the Southern District of California, William B. Enright, District Judge, Presiding. D.C. No. CR-89-1083-E
Before: Canby, Norris and Leavy, Circuit Judges.
Joseph M. Elliott appeals his convictions by jury trial for conspiracy, possession and manufacturing marijuana with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Elliott contends that the district court erred by failing to give proper jury instructions. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
We review whether a jury instruction was an accurate statement of the law de novo. United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990).
"It is well-established that a criminal defendant is entitled to have a jury instruction on any legal defense to the charge against him which has some foundation in the evidence." United States v. Chen, 933 F.2d 793, 796 (9th Cir. 1991). "A failure to give such instruction is reversible error; but it is not reversible error to reject a defendant's proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory." United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). "So long as the instructions fairly and adequately cover the issues presented, the Judge's formulation of those instructions or choice of language is a matter of discretion." United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985) (citation omitted); see United States v. Torres-Rodriguez, 930 F.2d 1375, 1388 (9th Cir. 1991). "The availability of a better instruction is not a ground for reversal." United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990).
Here, Elliott's defense was that he did not agree to manufacture and possess marijuana with his codefendant, Albert James McCormick. Elliott's proposed instruction on conspiracy required the jury to conclude beyond a reasonable doubt the "existence of an agreement between Mr. Elliott and other persons." The district court rejected Elliott's proposed instruction and gave the conspiracy instruction suggested by Devitt & Blackmar.*fn1
Considering the jury instructions as a whole, the district court adequately warned the jury that it was required to find an agreement between Elliott and other persons in order to convict him for conspiracy. See Torres-Rodriguez, 930 F.2d at 1388.*fn2 Therefore, the district court's jury instruction adequately covered Elliott's defense theory. See Chen, 933 F.2d at 796.
Possession and Manufacturing