Can a defendant appeal his conviction on two grounds that the court erred in failing to instruct the jury on the appropriate defense?

The defendant appeals his conviction on two grounds. First, he claims that the district court erred in failing to instruct the jury that he should be acquitted of bank robbery if the jury found that he was merely an accessory after the fact. Second, he argues that the district court erred in denying his request for a continuance so that he could have more time to prepare to present exculpatory evidence at trial that the government disclosed under Brady v. Maryland, 373 U.S. 83 (1963). We affirm.

The failure to instruct the jury on an appropriate defense theory is a question of law reviewed de novo. United States v. Duran, 59 F.3d 938 (9th Cir.), cert. denied, 116 S.Ct. 535 (1995). The defendant argues that he was entitled to a jury instruction and special verdict form explaining that he should be acquitted on the charge of bank robbery if the jury finds that he is guilty of the offense of being an accessory after the fact to bank robbery. ¹ Although a defendant is entitled to a jury instruction on his theory of defense upon making a showing of evidence supporting that theory even if the evidence is weak, insufficient, inconsistent, or of doubtful credibility, see United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.), cert. denied, 488 U.S. 866 (1988), we reject the defendant's argument because, inter alia, he failed to make even this minimal showing.