US v. Troy Lamont Bibb

Filing 920090707

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4087 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TROY LAMONT BIBB, a/k/a Y-Born, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:07-cr-00108-REP-1) Submitted: June 9, 2009 Decided: July 7, 2009 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. William J. Dinkin, DINKIN & PURNELL, PLLC, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Troy Lamont Bibb of assaulting fellow-inmate Christopher Ray Klingenstein with a shank with the intent to do bodily harm, in violation of 18 U.S.C. 113(a)(3) (2006), and possession of a prohibited object, in violation of 18 U.S.C. 1791(a)(2), (b)(3) (2006). Bibb appeals his conviction, challenging the district court's refusal to instruct the jury on his theory of self defense. error, we affirm. We review for an abuse of discretion "[t]he decision to give or not to give a jury instruction." United States v. Finding no reversible Allen, 491 F.3d 178, 186 (4th Cir. 2007) (internal quotation marks and citation omitted). The district court's refusal to grant a requested jury instruction is reversible error only if the proffered instruction "(1) was correct; (2) was not substantially covered by the court's charge to the jury; and (3) dealt with some point in the trial so important, that failure to give the requested instruction seriously impaired the defendant's ability to conduct his defense." Hurwitz, 459 F.3d 463, 477-78 (4th Cir. United States v. 2006) (internal quotation marks and citation omitted). We have held that "a A shank is a sharpened instrument used as a weapon in prison. 2 district court should give the instruction that a criminal defendant requests as to any defense as long as the instruction . . . has an evidentiary foundation[] and . . . accurately states the law applicable to the charged offense." United States v. Stotts, 113 F.3d 493, 496 (4th Cir. 1997). With these standards in mind, we have carefully reviewed the record on appeal. We conclude that the district court properly found that there was no evidence in the trial testimony to support the self-defense instruction. Thus, we find no abuse of discretion in the court's refusal to instruct the jury on Bibb's theory of self defense. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 3

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