(dissenting):

I respectfully dissent.

This is both a close and troublesome case. The initial difficulty is that viewed abstractly the testimony of Repp, Tillson, and appellant to the effect that the car was turned over to Repp at around two o’clock, that Repp returned to a street corner not proximate to the bank to pick up the appellant, and that Repp was then driven to the appellant’s apartment is not sufficient, even if believed, to establish an alibi with respect to aiding and abetting a bank robbery. It is undisputed that less than half an hour *1382 after the robbery appellant and Repp were seen together in the car arriving at appellant’s apartment and a few minutes later appellant was arrested as he left the apartment in possession of a large sum of cash, including the bait bills. These undisputed facts, if joined with the assumed true Repp-Tillson-appellant testimony, would not preclude a verdict of guilty of aiding and abetting. To preclude such a verdict it also would be necessary for the jury to believe, as Repp, Tillson, and appellant each also testified, that appellant knew nothing of Repp’s plans and that they in no way aided and abetted the robbery. This particular Repp-Tillson-appellant testimony is not evidence of an alibi. As to it the trial court was right when it observed, “It’s just a question of credibility.” (R.T. 28)

This analysis would justify a refusal to give an alibi instruction because an alibi instruction is not required when the alibi is not a defense to the crime with which the defendant is charged. This court has recognized this rule in Todorow v. United States, 173 F.2d 439, 446 (9th Cir. 1949). It was there held that the absence from the building in which false claims were made at the time such claims were made did not entitle the defendant to an alibi instruction when the crime charged included knowingly causing another to make false claims in violation of 18 U.S.C. § 1001 . See United States v. Beck, 431 F.2d 536 , 538 (5th Cir. 1970); Tomlinson v. United States, 68 U.S. App.D.C. 106, 109, 93 F.2d 652, 655-56 , cert. denied 303 U.S. 646 , 58 S.Ct. 645 , 82 L.Ed. 1107 (1937).

I would rest my dissent on this reasoning and the cited authorities were it not for the fact that, after a careful study of the record and reporter’s transcript of the trial, I conclude the Government exclusively rested its case on the theory that the appellant was within the vicinity of the bank and drove the getaway car. This invokes the teaching of United States v. Burse, 531 F.2d 1151 (2d Cir. 1976), upon which the majority relies. In Burse , although the defendant was charged with both bank robbery, which would require his presence at the bank during the robbery, and conspiracy to rob the bank, which would not require such presence, the Government’s case rested heavily on establishing the defendant’s presence at the bank at the time of the robbery. The defendant introduced evidence which tended to show him to be elsewhere at the time of the robbery. Under these circumstances an alibi instruction was held to be necessary notwithstanding the fact that the defendant was convicted only of conspiracy.

I would accept the teaching of Burse , with which in general I have no quarrel, as applied to the facts of this case were I convinced the alibi evidence here was strong and that the failure to give an alibi instruction in any way prejudiced the appellant. I am not so convinced.

There is authority which supports the proposition that when the alibi evidence is not strong, a failure to give an alibi instruction is not error if the jury is instructed that the Government must establish the elements of the crime beyond a reasonable doubt. United States v. Erlenbaugh, 452 F.2d 967 (7th Cir. 1971), cert. granted 405 U.S. 973 , 92 S.Ct. 1194 , 31 L.Ed.2d 247 , affirmed 409 U.S. 239 , 93 S.Ct. 477 , 34 L.Ed.2d 446 (1972). In my view this case, although not free from doubt, should be controlled by that authority.

There is no question but that the trial judge specifically required that the Government prove its case beyond a reasonable doubt. The relevant portion of the charge was as follows:

The requested alibi instruction, which is set forth in the margin, 1 was misleading in that it could have been understood to have justified an acquittal had the Government not established that the appellant and Repp together robbed the bank. This, of course, was not the Government’s theory. In addition, the substance of the last two paragraphs of the requested charge is contained in the instructions which were given and are set out above.

Neither of these considerations would justify failure to give a proper alibi instruction under Burse had appellant’s evidence been stronger. What is lacking is unim-peached testimony of one not a participant in, or charged with, the robbery which tends to support the alibi. Tillson’s testimony was impeached, and, had an instruction been given limiting the probative weight of hearsay evidence of prior inconsistent statements to impeachment, the strength of her testimony would not have been increased. In a situation in which the alibi evidence is no stronger than here I would permit the trial judge in his discretion to avoid a possibly confusing alibi instruction provided he clearly and unequivocally placed upon the Government the burden of proving the elements of the crime beyond a reasonable doubt. The purpose of the alibi instruction in the final analysis is to place upon the Government the burden of proving beyond a reasonable doubt not only that the defendant could have committed the crime but also that he did so. This purpose was adequately served in this case. To reverse convictions because of formal defects in trial procedure not affecting the defendants’ rights serves well neither justice, the courts, nor the people.

My disposition of the appellant’s contentions regarding the failure to given an instruction limiting the hearsay evidence of prior inconsistent statements to impeachment is quite simple. The failure of a trial court to give such an instruction sua sponte does not in this circuit constitute “plain error.” See Isaac v. United States, 431 F.2d 11, 15 (9th Cir. 1970). Nor do I believe that an exception should be made in this case.

I, therefore, respectfully dissent.

. “Evidence has been introduced tending to establish an alibi, which amounts to a contention that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the indictment.