The opinion
SENTELLE, Circuit Judge,
concurring in part and concurring in the result:
I agree with the majority that appellant’s conviction should be affirmed. I do not agree that there was any error in the jury instructions, either harmless or otherwise. Jury instructions must be viewed “as a whole” and must pose a “genuine risk that the jury will be confused” in order to warrant reversal. See, e.g., United States v. North, 920 F.2d 940, 951 (D.C.Cir.1990). In this case the trial judge’s standard and unassailable instruction on the “on or about” concept coupled with his express “alibi” instructions to the jury that “unless the government proves beyond a reasonable doubt that the defendant was present at the time when and at the place where the offense or offenses were allegedly committed,” poses no risk of confusion at all. In fact, it appears to me that the kind of deliberation micromanagement contemplated by the specificity of instructions mandated in the majority opinion will yield instructions more likely to confuse than to clarify, and most likely of all to add to what must already be a stupefying overload for the attention span of jurors who did not sign up for a full legal education.
I do agree "with the majority that “having heard all the evidence and arguments, the jury is in the best position to determine whether one of the parties is improperly describing specificity of the evidence in a way that attempts to take advantage of the disjunction between the ‘on or about’ and ‘alibi’ instruction.” Op. at 1161. The district judge having given both and having left the jury to do that which it is in the best position to do, I do not understand the majority’s insistence that the court committed error. I further do .not understand the generalized dicta “suggest[ing] that an intermediate instruction should be provided,” id., in a generalized category of “instances,” id., is “well within our supervisory authority.” Indeed, I think it beyond our role as an Article III court deciding “cases' and controversies.” U.S. Const, art. Ill, § 2.
As to the other allegations of error outside the instructions, I am in agreement with the majority’s reasoning. As I find no error, I would affirm.