Percival is calling him 18 times during that same time frame.... Then we go to April.... Ricardo DeFour calls Anderson Straker eight times. Eight times in April. And we have Anderson Straker calling Ricardo DeFour once ... Trial Tr. at 7665-66 (July 23, 2009). In light of the government’s argument that DeFour should be convicted of the offenses based on his actions prior to April 6, 2005, as well as his actions on that date, the Court correctly rejected DeFour’s proposed alibi instruction. As the Court explained in making that ruling, it is generally recognized that “the alibi instruction would not be appropriate in a case in which conviction of an offense charged could legitimately be accomplished without showing the defendant’s presence at a particular place at a p (8th Cir.1981) (<HOLDING>); United States v. Lustig, 555 F.2d 737, 750-51
holding that alibi instruction was properly denied because even if defendant had presented evidence of an alibi it would not have rebutted the governments evidence concerning conspiracy because presence need not be shown to prove conspiracy holding that the ineffective assistance of counsel claim for counsels failure to present the preindictment delay issue was without merit because there was no actual prejudice to the supposed alibi defense as the now unavailable witnesses would not have provided the defendant with an alibi for the time when the murder could have occurred holding that evidence of prior drug sales was sufficiently similar to the crimes charged  to be probative of the fact that the defendant was not merely an innocent driver who was involved in the drug transaction by accident holding that it was not error for the court to give a substantive new instruction to the jury after deliberations began where the instruction was given in court with the defendant and his counsel present holding that where defendant was charged with drug conspiracy it was unnecessary for the government to prove defendants presence at the sales and hence the alibi defense was not supported by the law and no instruction was required