place. Two other witnesses each met Rodriguez at the apartment owned by an individual named “Brigitta.” And various witnesses testified that, when they had appointments to meet with Rodriguez, they often waited with several other people who were also there to see (or pay) the defendant, indicating that Rodriguez’s victims had multiple opportunities to interact with one another. As a result, there was “some foundation” in the record for Rodriguez’s defense theory — that Concepcion’s testimony indicates that the defendant did not impersonate an INS official with her and that, given the overlaps among the victims, it would have not made sense for Rodriguez to pretend with some of them and not others that he was a federal official. See United States v. Dove, 916 F.2d 41, 47 (2d Cir.1990) (<HOLDING>). In addition, contrary to the government’s
holding that the erroneous omission of a justification defense was harmless where counsel did not invoke the defense during either voir dire or opening statements and where the defense did not appear to be the primary focus of the defensive theory at trial holding that the trial court did not err in its refusal to consider the borrowers defense of merger on appeal since the defense was outside the subject matter jurisdiction of the trial court holding that it is not reversible error to reject a defendants proposed instruction on his theory of the ease if other instructions adequately cover the defense theory internal quotation marks omitted recognizing that federal preemption is affirmative defense as to which defendant has burden of proof holding a defendant is entitled to instructions relating to his theory of defense for which there is some foundation in the proof no matter how tenuous that defense may appear to the trial court