text:
If an appellant raises the vagueness of an indictment as a ground of appeal and it turns out that he never raised this issue at trial, then he has the burden of proving at the appellate stage that his ability to prepare his defence was materially impaired as a result of the defect in the indictment. If however he did raise this issue at trial, then the Prosecution has the burden of proving that the appellant’s defence was not materially impaired. See paragraph 25.
25. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. In general, a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party. Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. However, the importance of the right of an accused to be informed of the charges against him and the possibility that he will incur serious prejudice if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, an appellant raises a defect in the indictment for the first time on appeal, he bears the burden of proving that his ability to prepare his defence was materially impaired. On the other hand, when an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.
 Niyitegeka Appeal Judgement, para. 198.
 Niyitegeka Appeal Judgement, para. 199 referring to Kayishema and Ruzindana Appeal Judgement, para. 91.
 Niyitegeka Appeal Judgement, para. 200.
 Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.
 Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement, para. 35, Niyitegeka Appeal Judgement, para. 200.
56. Finally, the Appeals Chamber notes its agreement with the Trial Chamber’s finding that an accused claiming to be unfit to stand trial bears the burden of so proving by a preponderance of the evidence. In this regard, the Appeals Chamber notes that this approach is consistent with the one used in common law jurisdictions where the burden of proof generally lies on the party which alleges the accused’s unfitness to stand trial and is considered to be discharged if this party can show its claim on the balance of probabilities.
 Decision of 26 May 2004, para. 38; see supra, para. 43.
 R. v. Podola  3 W.L.R. 718.
The Appeals Chamber also takes note of the aforementioned Nahak Decision in which the SPSC determined that the preponderance standard governs determinations of an accused’s fitness to stand trial (Nahak Decision, paras 57-59 referring to the Decision of 26 May 2004, para. 38: “[…] competence to stand trial is not an element of the offence with which the Defendant is charged” and, consequently, “it is not required that a defendant’s competence be proved by 'a higher standard as is required of the prosecutor when proving guilt in criminal cases’”; and paras 59-60, 67, 152 referring to the requirement that “proof that it is more probable than not […] has been demonstrated.”). The Appeals Chamber finally notes that the SPSC declined to define who bears the burden of proof and decided to evaluate the evidence on the matter “without depending on any 'onus of proof’ that might otherwise be imposed on the Defendant.” (ibid., paras 61-67).
Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 POPOVIĆ et al.
21. […] An appellant claiming to be unfit to participate in the proceedings bears the burden of so proving by a preponderance of the evidence.
 See Strugar Appeal Judgement, para. 56.
24. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. When an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. The Appeals Chamber observes that the Trial Chamber correctly recalled the law and burden of proof to be applied in the assessment of alibi.
25. Furthermore, the Appeals Chamber has held that “Trial Chambers are endowed with the discretion to require corroboration”. In this respect, it was not unreasonable for the Trial Chamber to question the credibility of Munyakazi’s alibi in the absence of corroboration given the inherent self-interest of his testimony and the introduction of the alibi at the close of the case. Furthermore, the fact that the death of Kabungo and the mourning period were not specifically challenged during cross-examination does not prevent the Trial Chamber from doubting their veracity and taking the lack of corroboration into account when assessing the evidence. The Appeals Chamber has previously emphasized that a Trial Chamber is not required to accept as true statements unchallenged during cross-examination. Therefore, the Trial Chamber has not shifted the burden of proof in assessing Munyakazi’s alibi; all that it has done, and this quite properly, is to note that there was no supporting evidence of the alibi.
 Zigiranyirazo Appeal Judgement, para. 17.
 Zigiranyirazo Appeal Judgement, para. 18. See also Renzaho Appeal Judgement, para. 303.
 Trial Judgement, para. 35, quoting Zigiranyirazo Appeal Judgement, paras. 17, 18.
 Nchamihigo Appeal Judgement, para. 45.
 Karera Appeal Judgement, para. 29.
[O]bjections based on lack of notice should be specific and timely. The Appeals Chamber agrees with the Prosecution that blanket objections that “the entire indictment is defective” are insufficiently specific. As to timeliness, the objection should be raised at the pre-trial stage (for instance in a motion challenging the indictment) or at the time the evidence of a new material fact is introduced. However, an objection raised later at trial will not automatically lead to a shift in the burden of proof: the Trial Chamber must consider relevant factors, such as whether the Defence provided a reasonable explanation for its failure to raise the objection earlier in the trial.
The Trial Chamber did not consider Muvunyi’s objection to the form of paragraph 3.24 of the Indictment to be timely. Muvunyi has not advanced any reason suggesting that this conclusion was erroneous. It therefore falls to him to demonstrate that the preparation of his defence was prejudiced by the omission from the Indictment of the approximate time and place of the Gikonko meeting.
124. Muvunyi has failed to make such a demonstration. Indeed, the Appellant’s Brief does not address the question of prejudice suffered from the leading of evidence about the Gikonko meeting. In these circumstances, the Appeals Chamber finds that Muvunyi has not discharged his burden to demonstrate prejudice. Consequently, this sub-ground of appeal is dismissed.
 Motion for Judgement of Acquittal, para. 59 (“With respect to the sensitization meetings, the Prosecutor offered the testimony of Witnesses CCP, YAI, CCR, YAP. These sensitizing meetings as alleged in the indictment are not sufficiently plead as to victims of the crimes of genocide in each instance or what specific acts of genocide occurred in order to give the Accused notice of what Count 1 or Count 2 acts he must specifically defend against.”).
 Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 46 (internal citation omitted).
 Muvunyi, Decision on Tharcisse Muvunyi’s Motion for Judgement of Acquittal pursuant to Rule 98bis [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Decision on Tharcisse Muvunyi’s Motion for Judgement of Acquittal pursuant to Rule 98bis, 13 October 2005], para. 41.
 Gacumbitsi Appeal Judgement, para. 51, quoting Niyitegeka Appeal Judgement, paras. 199, 200. See also Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, paras. 45-47.
 Muvunyi Appeal Brief, paras. 80-81 (where he simply objects to the lack of notice). A similar situation occurred in Niyitegeka. In that case, the Appeals Chamber found that the Indictment was defective, that Niyitegeka had not objected to this during trial, and that the burden of showing prejudice was therefore on him. Since he had made no submissions as to how he was prejudiced, the Appeals Chamber held that the Trial Chamber did not err in convicting him. Niyitegeka Appeal Judgement, paras. 200, 207, 211.
With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].
417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime. It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi. The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.
In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).
 Kayishema and Ruzindana Appeal Judgement, para. 106. See also Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, para. 200.
 Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, paras. 110-111.
Musema Appeal Judgement, para. 202. See also Limaj et al. Appeal Judgement, para. 63; Kamuhanda Appeal Judgement, para. 167; Kajelijeli Appeal Judgement, paras. 41-42.
326. When the Appellant raises a defect in the indictment for the first time on appeal, then he bears the burden of showing that his ability to prepare his defence was materially impaired. When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecutor to prove on appeal that the ability of the accused to prepare a defence was not materially impaired. All of this is subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.
 Muhimana Appeal Judgement, paras. 80 and 199; Simić Appeal Judgement, para. 25; Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement., para. 35; Niyitegeka Appeal Judgement, para. 200.
 Ntagerura et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para. 200.
It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.
43. Nothing in the foregoing requires the Prosecution, however, specifically to disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.
 See Niyitegeka Appeal Judgement, para. 60 citing Kayishema and Ruzindana Appeal Judgement, para. 106.
 Niyitegeka Appeal Judgement, para. 60 (internal citations omitted). See also Čelebići Case Appeal Judgement, para. 581; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 113.
91. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. Rather, he must simply produce evidence tending to show that he was not present at the time of the alleged crime. If the alibi is reasonably possibly true, it must be accepted. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.
 See, e.g., Nchamihigo Appeal Judgement, para. 92; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para. 414.
 See, e.g., Nchamihigo Appeal Judgement, para. 92; Zigiranyirazo Appeal Judgement, para. 17; Musema Appeal Judgement, para. 202.
 See, e.g., Nchamihigo Appeal Judgement, para. 93; Zigiranyirazo Appeal Judgement, para. 18; Karera Appeal Judgement, para. 330.
195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.
196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP. The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister. Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP. Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.
 Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.
 Muvunyi I Appeal Judgement, para. 41; Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.
 See Trial Judgement, paras. 1715-1720, 1740, 1744. See also Trial Judgement, paras. 1625-1628, 1632-1635, 1638, 1642, 1643.
 Sagahutu Closing Arguments, T. 25 June 2009 p. 83 (“Concerning the murder of [the] Prime Minister […] [i]n the Ntagerura [et al.] case, it was held that the Accused was charged [with] having planned, incited, committed, ordered or aided and abetted, and executed the alleged crimes. The Prosecutor should spell out the actions and the line of conduct of the Accused which give rise to the charges that are brought against him. This was not proven by the Prosecutor insofar as Captain Innocent Sagahutu is concerned”.). In his Closing Brief, Sagahutu generally objected to the Prosecution’s failure to plead in the Indictment his “role” in the killing of the Prime Minister. See Sagahutu Closing Brief [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Mémoire final du Capitaine Innocent Sagahutu (confidential), 31 March 2009 (English translation filed on 16 June 2009)], para. 55 (“[a]ux paragraphes 78, 103 à 107, le Procureur ne montre pas le rôle que le Capitaine Sagahutu aurait joué en tant que commandant de l’Escadron A ou comme supérieur hiérarchique”.).
 On the issue of the armoured unit: Witness ALN, T. 29 September 2004 pp. 45, 47; Witness DA, T. 11 January 2005 pp. 40-44, 53; Witness AWC, T. 18 January 2006 pp. 29-31. On the issue of supplies: Witness DA, T. 11 January 2005 pp. 56-58, 65, 71; T. 12 January 2005 p. 7; T. 13 January 2005 p. 10; Witness HP, T. 9 May 2005 pp. 21, 22, 24. Sagahutu did not challenge the pleading of these material facts in the Indictment at trial. See Sagahutu Closing Brief, paras. 54-57, 71-74, 76-79, 225-230, 234, 236, 240, 509, 516, 663. The Appeals Chamber notes further that Sagahutu challenged the credibility of the testimonies of Witnesses DA, HP, and AWC relating to the allegation of sending supplies and an armoured unit. See Sagahutu Closing Brief, paras. 240, 242, 243, 246, 287, 289-292, 509, 516, fn. 241; Sagahutu Closing Arguments, T. 25 June 2009 pp. 83, 84. The Appeals Chamber notes that during examination-in-chief, Witness DA attributed the instruction regarding the access of the Belgian peacekeepers to the Prime Minister’s residence to Nzuwonemeye. See Witness DA, T. 11 January 2005 pp. 48 (“There was a message from Bizimungu and addressed to Sagahutu stating that Belgian soldiers wanted to get in where he was, and he was asking him to say whether he should allow those Belgian soldiers to get in”.), 49 (“Warrant Officer Bizimungu said that the vehicles on board which were -- where he was, wanted to get in where he was, that is, in the [P]rime [M]inister’s residence, and he was asking whether he should be allowed to let those vehicles get in where he was. That was the content of that message. […] That message was meant for Sagahutu, and the person who responded to it was the commander of the battalion, who said that they should let them in but that they shouldn’t be let out with anything whatsoever”.). However, during cross-examination, Witness DA attributed this instruction to Sagahutu. See Witness DA, T. 24 January 2005 p. 38 (“Q. Are you able then to say who was in charge of the radio during the day of 7th April 1994? […] Q. […] Are you able to tell the Court – let me rephrase my question. You heard Bizimungu call Major Nzuwonemeye? A. No, he was speaking, rather, to Sagahutu and not to Nzuwonemeye.”). It should be noted that the Trial Chamber in its summary of Witness DA’s evidence only referred to his evidence given during examination-in-chief. See Trial Judgement, paras. 1624-1631.
 See Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.
15. Under Rule 73(A) of the Rules, the Prosecution has a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The determination as to which material is subject to disclosure under this provision is a fact-based enquiry made by the Prosecution. Therefore, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith. The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.
16. In order to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution. If the Appeals Chamber determines that the Prosecution is in breach of its disclosure obligations, the Appeals Chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.
 See also Rule 68(A) of the ICTR Rules.
 See, e.g., Decision on Augustin Ngirabatware’s Motion for Sanctions for the Prosecution and for an Order for Disclosure, 15 April 2014 (“Appeal Decision of 15 April 2014”), para. 12, referring to Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi Appeal Decision of 24 September 2012”), para. 7, Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Decision on Ephrem Setako’s Motion to Amend his Notice of Appeal and Motion to Admit Evidence, filed confidentially on 23 March 2011, public redacted version filed on 9 November 2011 (“Setako Appeal Decision of 9 November 2011”), para. 13, Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Appeal Decision of 4 March 2010”), para. 14, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgment, 17 December 2004, para. 183.
 See, e.g., Appeal Decision of 15 April 2014, para. 12, referring to Mugenzi Appeal Decision of 24 September 2012, para. 7, Kamuhanda Appeal Decision of 4 March 2010, para. 14; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006 (“Barayagwiza Appeal Decision of 8 December 2006”) para. 34.
 See, e.g., Appeal Decision of 15 April 2014, para. 12, referring to Mugenzi Appeal Decision of 24 September 2012, para. 7; Setako Appeal Decision of 9 November 2011, para. 12; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 18.
 See, e.g., Appeal Decision of 15 April 2014, para. 13, referring to Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Judgement, 4 February 2013 (“Mugenzi and Mugiraneza Appeal Judgement”), para. 39; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motions for Disclosure, 18 January 2011, para. 7; Kamuhanda Appeal Decision of 4 March 2010, para. 14.
See, e.g., Appeal Decision of 15 April 2014, para. 13, referring to Mugenzi and Mugiraneza Appeal Judgement, para. 39; Setako Appeal Decision of 9 November 2011, para. 14; Kalimanzira Appeal Judgement, para. 18.
when an alibi is submitted by the Accused the burden of proof rests upon the Prosecution to prove its case beyond a reasonable doubt in all aspects. Indeed, the Prosecution must prove “that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence”. If the alibi is reasonably possibly true, it will be successful.
This definition is legally beyond reproach and shows that the Trial Chamber was aware of the applicable burden of proof.
 Trial Judgement, para. 84, referring to Musema Appeal Judgement, para. 205 (citations omitted).
16. The Appeals Chamber recalls that, in order to show that the Prosecution is in breach of its disclosure obligation pursuant to Rule 68(A) of the Rules, the Defence must identify specifically the materials sought, present a prima facie showing of their probable exculpatory nature, and prove the Prosecutor’s custody or control of the materials requested. Thus, contrary to the Appellant’s submission, his burden of proof could not be met by merely showing a prima facie case of custody or advancing a “presumption of possession”.
 See, e.g., Karemera Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.13, Decision on “Joseph Nzirorera’s Appeal From Decision on Tenth Rule 68 Motion”, 14 May 2008], para. 9; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and For Disclosure of Mitigating Material, 30 August 2006, para. 31; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 262.
 Appeal [Appeal of the 30 October 2009 Trial Chamber II[’s] ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Accused’, 27 November 2009], paras. 70, 73, 74; Reply [Reply to Respondent’s Response to Appeal of the 30 October 2009 Trial Chamber II[’s] ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Accused’, 7 December 2009], paras. 12, 13. Referring to paragraph 17 of the Response, the Appellant notes that the Prosecution acknowledges that custody and control need only be shown on a prima facie basis (see Reply, para. 12). It is nevertheless clear from paragraphs 16, 18, and 19 of the Response [Respondent’s Response to Appeal of the 30 October 2009 Trial Chamber II’s ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Appellant’, 1 December 2009] that the Prosecution has made a technical error.
28. The Appeals Chamber is not convinced that the Referral Chamber erred in failing to address the issue of which party bears the burden of proof, or that it placed an inappropriate burden on the Defence in this respect. In its submissions, the Prosecution acknowledged that it bore the burden of proof to demonstrate that Mr. Uwinkindi’s trial in Rwanda will be fair. The Appeals Chamber considers that, in cases where the Prosecution requests referral, it bears the burden of proof to demonstrate that the conditions set out in Rule 11bis of the Rules are met. However, the Appeals Chamber recalls that a designated trial chamber may also rely on any information and orders it reasonably finds necessary in determining whether the proceedings following the transfer will be fair. A review of the Impugned Decision as a whole reflects that the Referral Chamber correctly regarded the burden of proof as falling on the Prosecution and also acted within its discretion in relying on other information or its own orders to satisfy itself that Mr. Uwinkindi’s trial in Rwanda will be fair.
 [Prosecutor’s Response Brief, 28 September 2011 (“Response Brief”)], para. 10.
 Stanković Appeal Decision, para. 50. See also Impugned Decision, para. 16.
103. The Appeals Chamber recalls that the Prosecution bears the burden of establishing facts material to the guilt of an accused beyond reasonable doubt, and that suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden. In this case, the Trial Chamber essentially took the view that the Defence evidence on the events at Gisagara market was not inconsistent with the Prosecution evidence. It reasoned that since two credible and reliable Prosecution witnesses saw Ntawukulilyayo at the market, the fact that the Defence witnesses did not see him or hear of his presence at the market did not necessarily suggest that he was not there.
104. The Appeals Chamber finds no error in the Trial Chamber’s preference for positive eyewitness testimony, and does not consider that the Trial Chamber’s assessment of the Defence evidence in this regard suggests that Ntawukulilyayo was required to present witnesses who were able to negate the Prosecution evidence. The Trial Chamber found that “Witnesses AYQ and BAU provided convincing and consistent accounts of Ntawukulilyayo’s order to refugees to go to Kabuye hill.” It then considered the evidence that Ntawukulilyayo presented to show that he was not at the market that day. The Trial Chamber also considered Ntawukulilyayo’s evidence that the refugees had already left the market before he allegedly instructed them to move. In the Appeals Chamber’s view, the fact that the Trial Chamber considered that such evidence was “of limited probative value” and did “not raise doubt” or “concerns” about the Prosecution evidence does not constitute a reversal of the burden of proof.
 Milošević Appeal Judgement, para. 231.
 See Trial Judgement, paras. 253-262. See also ibid., para. 250.
 Trial Judgement, paras. 247-262. The Appeals Chamber notes that, in analyzing the Defence evidence seeking to discredit Witness AYQ based on her association with Avega and alleged procurement of false testimony, the Trial Chamber explicitly bore “in mind that the Defence carries no independent burden when seeking to raise doubt with elements of the Prosecution case.” See ibid., para. 245.
 Trial Judgement, para. 255. See also ibid., paras. 159, 161, 167, 179.
 Trial Judgement, paras. 253, 259, 261. See also ibid., para. 12.
 Trial Judgement, para. 250. See also ibid., para. 12.
14. Finally, the Appeals Chamber notes that it is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.
 Blagojević Decision of 26 June 2006, para. 14.
226. The standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt. This standard applies whether the evidence evaluated is direct or circumstantial. The Appeals Chamber has previously endorsed an approach where, similar in parts to the present case, a Trial Chamber individually examined evidence with respect to a number of incidents and subsequently assessed the accused’s criminal responsibility for those incidents.
 See, e.g., Stakić Appeal Judgement, para. 219 (“A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.”); Ntagerura et al. Appeal Judgement, para. 174.
 Stakić Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 303; Kordić and Čerkez Appeal Judgement, para. 834.
 Kvočka et al. Appeal Judgement, para. 70 (citing with approval the approach of the Trial Chamber in Prosecutor v. Stanislav Galić to determine whether certain incidents occurred beyond reasonable doubt before determining Galić’s individual criminal responsibility for those incidents).
17. An alibi does not constitute a defence in its proper sense. By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged. An accused does not bear the burden of proving his alibi beyond reasonable doubt. Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime” or, otherwise stated, present evidence “likely to raise a reasonable doubt in the Prosecution case.” If the alibi is reasonably possibly true, it must be accepted.
18. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,” for example, by demonstrating that the alibi evidence is not credible.
20. In assessing whether a Trial Chamber, when using this type of language, has in fact shifted the burden of proof, the Appeals Chamber carries out an in-depth analysis of the specific findings related to a given incident. The Appeals Chamber has generally found that such language, while inappropriate, is not fatal when viewed in the broader context of a Trial Chamber’s findings. This is especially the case where the Trial Chamber accurately refers elsewhere in the judgement to the appropriate burden of proof for the evaluation of alibi evidence, its overall approach evinces a careful assessment of the alibi evidence, and its conclusion that the alibi evidence is ultimately not credible is reasonable when weighed against the evidence of participation in a crime.
39. Nonetheless, the Appeals Chamber finds that the Trial Chamber’s assessment of Zigiranyirazo’s alibi involves three serious errors that, taken together, invalidate his convictions based on the events at Kesho Hill. Specifically, the Trial Chamber erred by misapprehending the burden of proof in the context of alibi, failing to consider or provide a reasoned opinion with respect to relevant circumstantial evidence, and misconstruing key evidence which, properly considered, bolstered Zigiranyirazo’s alibi.
42. The Appeals Chamber emphasizes that a successful alibi does not require conclusive proof of an accused’s whereabouts. Indeed, there is no requirement that an alibi “exclude the possibility” that the accused committed a crime. The alibi need only raise reasonable doubt that the accused was in a position to commit the crime.
 Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.
 Nahimana et al. Appeal Judgement, para. 414; Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.
 Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Karera Appeal Judgement, para. 331; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 107.
 Musema Appeal Judgement, para. 202.
 Karera Appeal Judgement, para. 331 (internal citation omitted); Simba Appeal Judgement, para. 184 (internal citation omitted); Kajelijeli Appeal Judgement, para. 42 (internal citation omitted); Niyitegeka Appeal Judgement, para. 60.
 Nahimana et al. Appeal Judgement, para. 414; Kamuhanda Appeal Judgement, para. 38; Kajelijeli Appeal Judgement, para. 41; Musema Appeal Judgement, paras. 205, 206.
 Karera Appeal Judgement, para. 330; Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Kajelijeli Appeal Judgement, para. 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 107. See also Limaj et al. Appeal Judgement, para. 64, quoting Limaj et al. Trial Judgement, para. 11 (“[A] finding that an alibi is false does not in itself ‘establish the opposite to what it asserts’. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.”).
 Kajelijeli Appeal Judgement, para. 41 (internal citation omitted); Kayishema and Ruzindana Appeal Judgement, para. 106 (internal citation omitted). See also Limaj et al. Appeal Judgement, paras. 64, 65 (internal citation omitted); Delalić et al. Appeal Judgement, para. 581.
 See Limaj et al. Appeal Judgement, para. 65 (“When evaluating Haradin Bala’s alibi evidence, the Trial Chamber observed that ‘the testimony of most of the witnesses for the Defence for Haradin Bala does not necessarily negate the evidence that Haradin Bala remained in Llapushnik/Lapušnik after the end of May.’ The use of the phrase ‘to negate the evidence’ could be read in the sense that the Trial Chamber required Haradin Bala to negate the Prosecution evidence”), quoting Limaj et al. Trial Judgement, para. 647.
 See Kamuhanda Appeal Judgement, para. 39 (“the Appeals Chamber notes that in some instances the Trial Chamber applied language which prima facie supports the Appellant’s arguments [that the Trial Chamber shifted the burden of proof], for example in paragraph 174 of the [Kamuhanda] Trial Judgement: ‘[…] the evidence of Witness ALB does not exonerate the Accused from being present at Gikomero.’”) (emphasis in original).
 See Musema Appeal Judgement, para. 295 (“The wording ‘are by themselves, insufficient to refute the possibility’ used by the Trial Chamber with respect to alibi evidence might be an error on a point of law, had Musema’s evidence been sufficient to sustain a potential alibi.”)(emphasis in original), quoting Musema Trial Judgement, para. 740.
 Musema Appeal Judgement, para. 209.
 See, e.g., Musema Appeal Judgement, paras. 210, 211.
 See, e.g., Limaj et al. Appeal Judgement, para. 65; Kamuhanda Appeal Judgement, paras. 38-44; Musema Appeal Judgement, paras. 317, 318.
 Trial Judgement, para. 89 (“Pursuant to Article 20(3) of the Statute, an accused shall be presumed innocent until proven guilty. This presumption places on the Prosecution the burden of establishing the guilt of the accused, a burden which remains on the Prosecution throughout the entire trial. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”) (internal citation omitted).
 Trial Judgement, paras. 87, 88.
 See Simba Appeal Judgement, para. 185 (“The Appeals Chamber is further satisfied that the Trial Chamber correctly applied [the legal standard on alibi evidence] in its subsequent findings on alibi. The Trial Chamber first found that, although the alibi evidence for the period of 6-13 April 1994 ‘[did] not account for every moment of [the Appellant’s time]], viewed as a whole and when weighed against the Prosecution evidence, it [provided]] a reasonable and satisfactory explanation for [the Appellant’s]] activities [for this period]].’ The Appeals Chamber notes that this wording reflects that in assessing the alibi evidence for this period the Trial Chamber did not require the Defence to prove its case beyond reasonable doubt.”), quoting Simba Trial Judgement, para. 349. See also Nahimana et al. Appeal Judgement, paras. 428-431, 473, 474 (reversing a Trial Chamber finding that an alibi based on hearsay had not been established).
 See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi). See also Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”).
 See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi).
Decision on Disclosure - 18.05.2010 KAREMERA et al.
12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection.
13. However, the Defence bears the burden of proving an alleged breach of the Prosecution’s obligations pursuant to a request under Rule 66(B) of the Rules. It must therefore (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish prima facie the materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material.
 Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.
22. The Appeals Chamber further observes that in several instances, the Trial Chamber uses confusing language which could be viewed as shifting of the burden of proof onto the Defence to disprove the Prosecution’s case. In such instances, the Trial Chamber stated that “nothing in the evidence suggests” that a conclusion opposite to the one adopted by the Trial Chamber could be reached. The Appeals Chamber finds this language misleading and stresses that the Trial Chamber is required not only to apply the appropriate standard but also to articulate it correctly. That said, the Appeals Chamber considers that, subject to the analysis of the parties’ specific challenges below, the Trial Chamber in fact meant to state that all reasonable doubt was eliminated on the basis of the evidence cited in all such instances.
 E.g., Trial Judgement, paras 250, 266, 276, 289, 310, 324, 341, 354, 364, 393.
In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.
206. Musema accepts the above observation as a correct statement of the law as regards the burden and standard of proof. The Appeals Chamber is of the same opinion.
 Trial Judgement, para. 108 (emphasis added).
Appeal Judgement - 27.09.2007 LIMAJ et al.
24. […] The burden of proof on the Prosecution to establish facts beyond reasonable doubt does not necessarily require the Prosecution to establish that each piece of evidence independently establishes the relevant fact to that standard.
[a]n alibi […] is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution.
[t]he burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.
This does not, however, require the Prosecution to specifically disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.
So long as there is a factual foundation in the evidence for that alibi, the Accused bears no onus to establish that alibi; it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true”. Further, as has been held by another Trial Chamber, a finding that an alibi is false does not in itself “establish the opposite to what it asserts”. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.
 Kamuhanda Appeal Judgement, para. 167. See also Kajelijeli Appeal Judgement, paras 41-42, and Kayishema and Ruzindana Appeal Judgement, para. 111.
 Niyitegeka Appeal Judgement, para. 60 (internal footnotes omitted). See also Čelebići Appeal Judgement, para. 581; Musema Appeal Judgement, para. 202 (with reference to Kunarac et al. Trial Judgement, para. 625); Kayishema and Ruzindana Appeal Judgement, para. 113.
 Trial Judgement, para. 11, citing Vasiljević Trial Judgement, para. 15, fn. 7.
Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
21. […] As noted above, the Trial Chamber explicitly recalled the principle of individual criminal responsibility and that the Prosecution must prove each element of each crime individually against each of the co-Accused. To the extent that they are charged with joint criminal enterprise and may thus be held accountable for acts of others in accordance with the common criminal purpose, the Appeals Chamber notes that Nzirorera’s death does not affect the burden to be met by the Prosecution in relation to Karemera and Ngirumpatse.
 Reasons for Impugned Decision, para. 14.
70. With respect to MLD1, the Trial Chamber held that “[t]]here are a number of aspects of MLD1’s account that are difficult to believe”. It further found that Vilić’s testimony “raise[s] serious questions as to the credibility of MLD10 in general and in respect of her alibi evidence regarding the Drina river and Varda factory incidents”. The Trial Chamber also found MLD15’s evidence “somewhat strange and artificial”. The Appeals Chamber considers that in making these findings, the Trial Chamber explained its reasons for concluding that the witnesses lacked credibility. Such language does not indicate a reversal of the burden of proof. On the contrary, it shows that the Trial Chamber carefully considered the evidence of these alibi witnesses.
71. The Trial Chamber considered that inconsistencies in witness testimonies “call into question the alibi as a whole, as [they cast] reasonable doubt on the alibi evidence” of MLD1, MLD10, and Marković. It also found that an “inconsistency resulting from MLD24’s evidence casts further doubt upon the veracity of the alibi presented as a whole.” The use of these phrases is unfortunate since, taken in isolation, they could be interpreted as requiring Milan Lukić to prove beyond reasonable doubt that he was in Belgrade at the time of the alleged crimes. However, the Appeals Chamber observes that such language must be viewed in the broader context of the Trial Chamber’s findings. The fact that the Trial Chamber in some instances used language which may be misunderstood does not necessarily mean that the Trial Chamber fundamentally misplaced the burden of proof.
72. The Trial Chamber articulated the correct legal standard applicable to the examination of alibi evidence. […] Thus, the Appeals Chamber considers that, when using this language, the Trial Chamber was explaining why it did not find that the proffered alibi raised a reasonable doubt in the Prosecution’s case. The Trial Chamber rejected Milan Lukić’s alibi after having considered the evidence as a whole. In these circumstances, the Appeals Chamber finds that Milan Lukić has failed to show that the Trial Chamber erred in law in assessing his alibi for the DrinaRiver and Varda Factory Incidents.
362. The Appeals Chamber further finds that the Trial Chamber properly applied this burden of proof. Sredoje Lukić refers to the Trial Chamber’s finding that “certain aspects of the alibi evidence [were] difficult to believe”, as well as the finding that witness accounts were “implausible”. The Appeals Chamber is of the view that these considerations do not indicate a reversal of the burden of proof.
 Trial Judgement, para. 223 (emphasis added).
 Trial Judgement, para. 226 (emphasis added).
 Cf. Zigiranyirazo Appeal Judgement, para. 20.
 Kamuhanda Appeal Judgement, para. 39.
 Trial Judgement, paras 230, 329.
128. […] [T]he Chamber recalls that it is not conducting a trial de novo.
137. The Appeals Chamber notes at the outset that, in respect of alleged errors of fact, the burden of showing that the Trial Chamber’s findings were unreasonable is on Kayishema. This standard of appellate review means that the “task of hearing, assessing and weighing the evidence presented at trial is left” to the Trial Chamber. Hence, the Appeals Chamber must give “a margin of deference” to factual findings reached by the Trial Chamber. One aspect of such burden is that it is up to the Appellant to draw the attention of the Appeals Chamber to the part of the record on appeal, which in his view supports the claim he is making. From a practical standpoint, it is the responsibility of the Appellant to indicate clearly which particular evidentiary material he relies upon. Claims that are not supported by such precise references to the relevant parts of the record on appeal will normally fail, on the ground that the Appellant has not discharged the applicable burden.
See also paras. 146, 237, 244, 255, 258, 295 and 320.
 See, for instance: “Decision relating to the Appellant’s motion for extension of time-limits and admission of additional evidence” in The Prosecutor v. Tadic, Case No. IT-94-I-A, 15 October 1998, ICTY Appeals Chamber, para. 41; see also, in the same connection, Furundžija Appeal Judgement, para. 40.
 Tadić Appeal Judgement, para. 64, Aleksovski Appeal Judgement, para. 63, and Čelebiči Appeal Judgement para. 506.
 References should be made to relevant transcript page(s) and/or exhibit(s).
 Tadić Appeal Judgement, para. 64.
The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement, supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.
108. […] [T]he Appeals Chamber recalls that in a criminal case, the accused’s role at the level of preparation of the case should not be confused with his role at the trial stage before the Trial Chamber.
109. Indeed, the Appeals Chamber notes that Rule 67 (A) (ii) of the Rules of Procedure and Evidence provides that when the Defence intends to enter the defence of alibi, in addition to the duty to notify the Prosecutor thereof, the accused must also provide the evidence upon which he intends to rely to establish his alibi. This rule, which applies at the level of case-preparation, only governs the reciprocal disclosure of evidence.
110. The Appeals Chamber is therefore of the opinion that this provision places no onus of proof on the Defence, in that it does not require the Defence to prove the existence of the facts, but rather provides for disclosure of evidence in support of the alibi. Thus, as reflected in Rule 67 referred to above, the Defence is required to disclose to the Prosecutor the place or places at which the accused claims to have been present at the time of the alleged crimes and, if it so desires, produce probative evidence tending to show that since the accused was at a particular location at a specific time, there was cause for reasonable doubt as to his presence at the scene of the crime at the alleged time. The accused is therefore at liberty to provide the Prosecution with such evidence as may establish the credibility of the alibi raised.
111. Consequently, it is the opinion of the Appeals Chamber that the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus, during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi.
112. […] The Appeals Chamber is aware of the fact that failure to prove an alibi must not be construed as an indication of the Accused’s guilt. However, the Chamber affirms that the issue of disclosure of evidence falls within the preparation of the case and precedes the production of evidence at trial. If the Defence is not in a position to produce evidence of the accused’s whereabouts, it is, nevertheless, at liberty to disclose to the Prosecutor, and then produce before the Trial Chamber, all evidentiary material likely to raise doubts as to the accused’s responsibility for the crimes charged. Accordingly, the Appeals Chamber holds that this cannot be considered as shifting the burden of proof at the trial.
113. The Appeals Chamber recalls that at the trial stage, the Trial Chamber limited itself to assessing the evidence presented by the parties. The Prosecutor must always prove the existence of the facts charged as well as the accused’s responsibility therefor. The Defence, for its part, must produce evidence before the Chamber in support of its claims that the crimes charged cannot be imputed to the accused because of his alibi. However, in that case, the burden of proof is not shouldered by the Defence. It is merely required to produce evidence likely to raise reasonable doubt regarding the case of the Prosecution.
 Čelebići Appeal Judgement, para. 581 : “It is a common misuse of the word to describe an alibi as a “defence”. If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a defence in its true sense at all. By raising that issue, the defendant does no more than require the Prosecution to eliminate the reasonable possibility that the alibi is true”.
 Kunarac Trial Judgement, para. 625 : “The Prosecution bore the onus of establishing the facts alleged in the Indictment. Having raised the issue of alibi, the accused bore no onus in establishing that alibi. It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the indictment were nevertheless true”.
 See also the section of this Judgement on fair trial (III, A, paras. 50-51).
[…] (ii) The Defence shall notify the Prosecutor of its intention to enter: (a) The Defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi”.
 However, the Appeals Chamber is of the opinion that evidence showing solely that the accused was not present at the scene of the crime, without providing any specific alibi, does not, generally speaking, show proof of alibi.
52. A preliminary matter of a general nature concerns the burden of proof. The question at issue in this Motion is whether the Appellant is entitled to a right given to him by the appeal process which he has invoked. It is for him to establish his entitlement to the right which he claims. Accordingly, it is for the Appellant to prove the elements of the entitlement.

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Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Div., Phoenix, and Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee.
Daniel F. Davis, Tucson, for appellant.
En Banc. Gordon, Vice Chief Justice. Holohan, C.J., and Hays, Cameron and Feldman, JJ., concur.
William Allen Plew, Jr. was convicted of attempted second degree murder, A.R.S. §§ 13-1001 and -1104, and of aggravated assault, A.R.S. § 13-1204. It was alleged and proven that these offenses were of a dangerous nature and were committed while on parole. Consequently, the appellant was sentenced to life imprisonment by authority of A.R.S. § 13-604.01 (now § 13-604.02). We have jurisdiction pursuant to Arizona Const. art. 6 § 5(3) and A.R.S. §§ 13-4033 and -4035.
On September 19, 1983, a shooting occurred at the home of the victim, Joseph Molina. Molina was shot five times with a small caliber handgun, but the two versions of how the shots came to be fired were diametrically opposed. The appellant, testifying on his own behalf, claimed that Molina was angry and abusive over Plew’s cocaine debts and threatened him with a gun. The appellant testified that he then grabbed the gun and struggled with Molina, during which the gun went off and “just kept going off.” In contrast, Molina testified that the appellant, without provocation, simply pulled out a gun and shot him five times.
Everyone agreed that the appellant purchased cocaine from Molina, but as with most of the evidence in the case the facts were sharply disputed. The appellant testified that he bought cocaine from Molina frequently — indeed, three times the day of the shooting — while Molina maintained that sales were infrequent. In any event, the shooting arose out of a dispute over money owed by appellant to Molina for cocaine. The state charged appellant with attempted first degree murder and aggravated assault; the appellant relied upon a self-defense argument. At the close of evidence the defense offered four possible jury instructions on self-defense; all were denied by the trial judge as unsupported by the evidence. Appellant was subsequently convicted of attempted second degree murder, a lesser included offense of attempted first degree murder, and of aggravated assault. The appellant now urges that the trial court’s refusal to give a self-defense instruction constitutes reversible error.
The law in Arizona regarding self-defense is well-established. A self-defense instruction must be given if the accused can demonstrate that 1) he reasonably believed that he was in immediate physical danger; 2) he acted solely because of his belief; and 3) he used no more force than appeared reasonably necessary under the circumstances. State v. Noriega, 142 Ariz. 474, 482, 690 P.2d 775, 783 (1984). The defendant’s own testimony can raise the inference of self-defense, State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646, 648 (1983), even if the evidence is in conflict on this issue. State v. Noriega, 142 Ariz. at 482, 690 P.2d at 783. Moreover, a defendant is entitled to a self-defense instruction “whenever there is the slightest evidence of justification for the defensive act.” State v. Bojorquez, 138 Ariz. 495, 497, 675 P.2d 1314, 1316 (1984). Accord, State v. Noriega, 142 Ariz. at 482, 690 P.2d at 783; State v. Lujan, 136 Ariz. at 104, 664 P.2d at 648. The “slightest evidence” is that evidence “tending to prove a hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing [his] life or sustaining great bodily harm . . . .” State v. Wallace, 83 Ariz. 220, 223, 319 P.2d 529, 531 (1957).
“Q So he comes outside with you and he has this gun with him.
Q Are you keeping an eye on the gun?
A I didn’t even notice it at first, sir. I didn’t notice it till he brought it up.
Q What did he do when he brought it up, point it at you?
A He is pointing it but it is shaking like this (indicating). And he starts talking all this stuff and telling me about I don’t know who he is and that an informant in his case against him had an accident, a car accident, they think it is an accident, that I don’t know who he is or what he can do.
And at that time I knew my heart started pounding. I knew he was going to shoot me.
Q How did you know?
A I just felt it. I have been in a situation where — I have been stabbed and I know how it feels when you know that your life is about to be taken away from you.
Q So was the gun pointed at you or pointed someplace else?
A It’s pointing at me, sir. He has it like that (indicating).
Q How close together are the two of you?
A About — I am about right here and he is about right where she is at.
Is his finger on the trigger?
A I’m just noticing how the gun is, sir. I know he has a grip on it.
A I turned to the side. Well, I was already moving to the side like that and I — and he is just rambling on like this and like this.
I am telling him, Joe, what is wrong, you know, I ain’t done nothing, you know.
This testimony by the appellant, if viewed in isolation, would supply the quantum of evidence necessary to support a claim of self-defense and allow us to conclude without further analysis that the trial court erred in denying a self-defense instruction. However, the state maintains that other testimony by the appellant himself defeats the claim of self-defense.
And when it first went off, I thought I had been shot. I thought I had been shot.
It just happened so fast. And then he was right there. And I was standing right there and I was looking at him and I said, Why, why, Joe.
And he got up and he ran.
Q Which finger did you pull the trigger with?
A I didn’t pull the trigger, sir. I had it just like that and he came after and he was trying to take it and it went off just like a pow, pow, pow, pow. I don’t know how many times. I went into a daze it seemed like.
Q Did you ever point it at him?
A No, sir, I never had no gun and I never had no possession of that gun.
Q You didn’t want to shoot him?
Q You weren’t shooting him to defend yourself, then, were you?
A I don’t understand what you are saying, sir.
Q It was an accident, is that what you are saying?
A I am saying that I know I had the gun like that and he tried to take it and it went off. I don’t know if he is the one that his finger went in there and pulled it or what, it just happened so fast.
But I didn’t go there with no gun and I had no intentions to harm Mr. Molina.
Q And you didn’t pull the trigger.
Q Well, did you think it was him that pulled the trigger?
It is not our function to re-weigh the evidence on appeal; and our resolution of this case does not require us to believe or disbelieve the appellant’s testimony. The only issue we need address is whether the appellant presented the “slightest evidence” of self-defense at trial. Because we believe that the requisite modicum of evidence was presented, we must reverse the appellant’s convictions. The case is remanded to the trial court for proceedings not inconsistent with this opinion.
1. In any event, the state’s focus on the actual shooting may be misdirected. The critical inquiry may be whether the appellant initiated the struggle for the gun if the resulting discharges — whether intended or not — were simply a natural consequence of the struggle.


text:
1.1 The Complainant is F. Hoffmann-La Roche AG, Basel, Switzerland, represented by F. Hoffmann-La Roche AG, Switzerland.
1.2 The Respondent is Metropharm International, Manila, Philippines.
2.1 The disputed domain name <xenicalnet.com> is registered with Dotster, Inc.
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 13, 2006. On January 13, 2006, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain name at issue. On the same day Dotster, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
3.2 In accordance with the Rules, Paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 19, 2006. In accordance with the Rules, Paragraph 5(a), the due date for Response was February 8, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 9, 2006.
3.3 The Center appointed Jay Simon as the sole Panelist in this matter on February 22, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, Paragraph 7.
4.1 Complainant is one of the world’s largest healthcare companies and operates (with its affiliates, not parties to these proceedings) in over 100 countries. Complainant is a leader in research, development, and marketing of pharmaceutical products and diagnostics.
4.2 Complainant holds trademark registrations for XENICAL, an oral prescription weight loss medication in many countries. Exemplary of Complainant’s trademark registrations are International Registration Nos. 612,908 and 699,154 claiming a priority date of December 14, 1993.
4.3 The disputed domain name was registered by Respondent on February�29,�2000.
4.4 The disputed domain name resolves to a website where Complainant’s trademarked XENICAL products are offered for sale.
4.5 Respondent did not reply to the Complaint and was notified of its default by the Center on February 9, 2006.
5.1 Complainant contends that the disputed domain name is confusingly similar to its mark because the domain name incorporates the mark in its entirety, adding only “net” and “.com” which do not distinguish adequately the disputed domain name from Complainant’s mark.
5.2 Complainant contends that it has not licensed, authorized, permitted or consented to the use of its mark by Respondent in the disputed domain name.
5.3 Complainant further contends that a reseller does not have the right to incorporate the trademark of the resold goods into the domain name of the reseller, and that a respondent has no legitimate interest in a domain name that is confusingly similar to a pharmaceutical manufacturer’s mark, the domain name resolving to an online pharmacy.
5.4 Complainant contends that the disputed domain name was registered in bad faith because at the time of registration Respondent had knowledge of Complainant’s mark.
5.5 Complainant further contends that the disputed domain name is being used in bad faith and that Respondent is intentionally attempting, for commercial gain, to attract internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the relationship of Complainant and Respondent’s website.
5.6 Complainant requests that the disputed domain name be transferred to Complainant.
5.7 Respondent failed to respond to the Complaint and has not otherwise actively participated in these proceedings.
6.1 Complainant, by virtue of its international and national trademark registrations, has established rights in the XENICAL mark. This Panel notes, however, that Respondent registered the disputed domain name some five and a half years before Complainant instituted these proceedings. This Panel is of the opinion that a Complainant should be diligent in protecting its trademark rights and that the passage of time may affect those rights, e.g., whether a registrant has become commonly known by a domain name. Nevertheless, there is no evidence in these proceedings to suggest that the passage of time has inured to Respondent’s benefit.
6.3 Complainant has the burden of proof, by a preponderance of the evidence, respecting each element in Paragraph 6.1.
6.4 Respondent, having failed to respond in these proceedings, is in default, and in accordance with paragraphs 14(b) of the Rules, “the panel shall draw such inferences…as it considers appropriate”.
6.5 Complainant has established rights in the trademark XENICAL by virtue of its international trademark registrations. The disputed domain differs from Complainant’s mark by the addition of “net” and the gTLD suffix “.com”. The test for confusing similarity is straightforward and involves a comparison of the disputed domain name with the mark in which Complainant has rights. Under this test, there is no doubt in this Panel’s mind that the disputed domain name is confusingly similar to Complainant’s mark, the two additions notwithstanding. Further, this Panel is aware of, and is guided, by the decision and reasoning in EAuto LLC v. Triple S Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047, where the incorporation of the entirety of a registered mark in a disputed domain name rendered the domain name confusingly similar to the trademark.
6.6 Paragraph 4(c) of the Policy lists three, non-exclusive methods for determining whether a respondent has rights or legitimate interests in a disputed domain.
6.7 In respect of demonstrating a respondent’s lack of rights or legitimate interests in a disputed domain name, the burden of proof rests with complainant. However, where the complainant having made the necessary assertions and providing evidence, it is incumbent upon the respondent to come forward with evidence of its rights or legitimate interests in the disputed domain name, the respondent being uniquely possessed of this evidence, if such evidence exists. Respondent has failed to present any evidence of its rights or legitimate interests in the disputed domain name, and such failure is tantamount to admitting the truth of Complainant’s assertions, see Do the Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624.
6.8 Respondent having failed to respond to the Complaint, there is no evidence that Respondent was commonly known by the disputed domain name, and there is no evidence that the passage of time before Complainant brought these proceedings has allowed Respondent to become known by the disputed domain.
6.9 Respondent’s use of the disputed domain name is certainly for commercial purposes. Respondent is clearly a reseller of the XENICAL product and the issue arises as to whether a reseller of a product can have a right or legitimate interest in a disputed domain name. This issue was addressed in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions. There was no consensus view on this issue, although a majority view has developed. The majority view is that a reseller can be making a bona fide offering of goods or services if the use of the website of the disputed domain name meets certain requirements. Among these requirements is the accurate disclosure of the registrant’s relationship with the trademark owner. Evidence submitted by Complainant shows that no such disclosure exists. Consequently, under the majority view, Respondent has not satisfied the necessary requirements for a bona fide use of Complainant’s mark. This Panel notes that it has serious questions about whether a reseller can ever obtain rights or legitimate interests in another’s trademark (regardless of the majority view requirements) without the consent of the trademark owner. Thus, this Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name.
6.10 Given the rather fanciful trademark “XENICAL” this Panel believes that Respondent must have had knowledge of Complainant’s mark at the time of registration of the disputed domain name. Further, the nature of Respondent’s website clearly suggests that prior knowledge and the fact that Respondent is trading-off the goodwill and reputation developed by Complainant for its trademark.
6.11 This Panel is also of the opinion that Respondent’s registration of the disputed domain name was and is for the purpose of attracting internet users, for Respondent’s commercial gain, to a website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website or products sold on that website, thereby satisfying Paragraph 4(b)(iv) of the Policy.
6.12 This Panel is also aware of and agrees with similar decisions involving this Complainant, e.g., F. Hoffmann-La Roche AG v. Drug Sale, WIPO Case No. D2006-0066, F. Hoffmann-La Roche AG v. NetMarketing cc, WIPO Case No. D2005-1216, and F. Hoffmann-La Roche v. George McKennitt, WIPO Case No. D2005-1300, as well as F. Hoffmann-La Roche Inc. v. #1 Viagra Propecia Xenical & More On-Line Pharmacy, WIPO Case No. D2003-0793.
6.13 It is the opinion of this Panel that the disputed domain name was registered and is being used in bad faith by Respondent.
7.1 For all the foregoing reasons, in accordance with Paragraph 4(a) of the Policy and Paragraph 15 of the Rules, this Panel orders that the domain name <xenicalnet.com> be transferred to Complainant.

matches: v. v. v. v. v. v.


Rehearing Denied Oct. 31, 1996.
James Porter (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
Charles M. Shaw, James J. Knappenberger (argued), Clayton, MO, for Defendant-Appellant.
Defendant-appellant Christopher Duguay appeals his conviction and sentence for one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count I), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count III). Duguay argues that the district court erred in denying his motion to suppress 533 grams of cocaine the police discovered during a search of the automobile in which he was a passenger. We vacate the conviction for possession with intent to distribute cocaine, and remand for a new trial. The defendant having offered no argument in support of his appeal from the gun charge, we affirm his conviction on Count III.
On the evening of May 3, 1994, a joint federal, state, and local task force known as the "Violent Crimes Initiative" was conducting a "sweep" in and around the federally-funded housing projects on Dooley Avenue in Alton, Illinois. The projects had recently experienced a crime wave, and members of the task force were engaged in identifying nonresidents for prosecution under local trespassing ordinances. Although the police focused on pedestrians, the task force also operated a roadblock on Dooley Avenue to question motorists.
At approximately 9 p.m., United States Deputy Marshal Michael Rehg observed a blue Nissan Maxima turn into a parking lot approximately 50 feet before the Dooley Avenue road block. Rehg associated the vehicle with the defendant, whom Rehg had encountered in an investigation of the East St. Louis cocaine distributor Ronald Blake. Duguay was a passenger in the vehicle, which was driven by his girlfriend Gloria Vaughn, a resident of the Dooley Projects.
Vaughn parked, locked the car, and activated the car alarm. As Vaughn and Duguay walked towards the apartments, Rehg and two other marshals approached the automobile and called upon Duguay to stop for questioning. Duguay and Vaughn proceeded towards the apartment. After several more exhortations to stop, during which time Duguay and Vaughn walked some distance from the car, Duguay turned around. Rehg cautioned Duguay to remove his hands from his pockets and indicated he was going to perform a pat down. After being spread against a different car, Duguay objected to the course of the frisk and struck Rehg with his elbow. After a brief altercation, Duguay was arrested for assault. The disturbance attracted a crowd of onlookers, including the defendant's brother William Cole.
After Duguay was handcuffed, he told Vaughn not to surrender the car keys. Alton Police Detective Scott Waldrup informed Vaughn that he was going to impound the car and demanded the keys. After she refused to surrender the keys, Waldrup arrested Vaughn for obstruction of justice and reached into her pocket to obtain the keys. Within ten minutes of Duguay's arrest, Waldrup and Detective Alfred Adams unlocked the car and began to inventory its contents. After finding nothing of interest in the passenger area, Waldrup released the hatch to the back seat and found a substantial quantity of crack cocaine in the trunk. Subsequent lab analysis found this to be equivalent to 533 grams of cocaine.
Shortly after her arrest, Vaughn consented to let the Alton police search her apartment where a Tech 9 handgun was found lodged behind a sofa. Although fingerprint analysis was inconclusive, Duguay signed a statement (penned by an Alton Police Detective) admitting ownership of the car, the crack, and the gun shortly after being brought into the Alton police station. Duguay was charged in a three count indictment alleging possession with intent to distribute the cocaine found in the car, unlawful possession of a firearm by a felon, and possession with intent to distribute narcotics within 1,000 feet of a school, in violation of 21 U.S.C. § 860.
At the hearing to suppress the crack on August 19, 1994, Duguay argued (1) that the police were not legitimately present at the Dooley Housing Projects, (2) that the initial stop was in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (3) that the arrest was without probable cause, and (4) that the impoundment and subsequent inventory search of the automobile were illegal. After hearing testimony from Deputy Rehg, Detective Waldrup, and fifteen other witnesses (the relevant testimony of whom is summarized below), the district judge denied each of Duguay's claims. After a three day jury trial during which Duguay renewed his motion to suppress, and moved for an acquittal at the end of the presentation of evidence, he was convicted of the distribution of cocaine and possession of weapons counts. He was found not guilty of possession with intent to distribute within 1,000 feet of a school (Count II). Accordingly, on the basis of two prior felony drug trafficking convictions, Duguay was sentenced to life imprisonment without the possibility of parole under the career offender provision. U.S.S.G. § 4B1.1(A). Duguay was also sentenced to a ten-year concurrent sentence on the felon-in-possession count.
The sole issue Duguay has raised on appeal is that the crack cocaine in his car was seized in contravention of the Fourth Amendment. We review the district court's findings of fact for clear error. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). A finding is clearly erroneous when, after comprehensive review of the evidence, this court is left with "the definite and firm conviction that a mistake has been made." United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994). We give "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, at ----, 116 S.Ct. at 1663. We review questions of law and mixed questions of law and fact de novo. Ornelas, at ----, 116 S.Ct. at 1663. In reviewing a suppression motion, we may consider evidence introduced both at the pre-trial suppression hearing and at the trial itself. Tilmon, at 1224.
[T]he reasonableness of an investigatory stop may be determined by examining: (1) whether the police were aware of specific and articulable facts giving rise to reasonable suspicion; and (2) whether the degree of intrusion was reasonably related to the known facts.
Tilmon at 1224. The inquiry on appeal must focus on "the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion." Ornelas, at ----, 116 S.Ct. at 1661.
At the suppression hearing, Deputy Rehg identified four facts which led him to stop Duguay. First, Rehg believed that Duguay's automobile had pulled into the Dooley parking lot to avoid the police roadblock. Second, Rehg knew Duguay to be associated with Ronald Blake's narcotics distribution ring in East St. Louis. Third, Rehg believed that Duguay had sold crack cocaine to undercover police officers in the past. Finally, Rehg knew that Duguay resided in a different housing project and was trespassing.
At oral argument, Duguay suggested that several of the articulated bases of suspicion were insufficient to justify an investigative stop. Taken separately, several of Rehg's reasons strike us as problematic. In particular, we are troubled by the government's suggestion in its brief that the stop was warranted because Duguay was about to enter a high crime housing project where he was not a resident. See, e.g., Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) ("The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct."). We would similarly be wary if Deputy Rehg decided to stop Duguay for investigation solely on the basis of his criminal reputation, or presumed association with unsavory cohorts. Our unease is amplified because Rehg knew that there were no outstanding warrants for Duguay's arrest, suggesting his alleged misdeeds had not been deemed sufficiently well-established to merit application for an arrest warrant.
Despite our qualms about components of the articulated suspicion, this particularized method of analysis misses the mark. Reasonable suspicion is to be determined in light of the totality of the circumstances. See, e.g., United States v. Packer, 15 F.3d 654, 658 (7th Cir.1994); United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989). While Deputy Rehg's reliance on Duguay's suspected trespassing, nefarious associates, prior drug trafficking, and presence in a crime-ridden district might have been discretely impermissible, we conclude that the combination of these factors may arouse a reasonable suspicion in an objectively reasonable police officer.
This conclusion is consistent with this circuit's precedents which have upheld investigatory stops in light of all the circumstances, despite the presence of several questionable factors. See, e.g., United States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir.), cert. denied --- U.S. ----, 116 S.Ct. 153, 133 L.Ed.2d 97 (1995) (gang membership); United States v. Willis, 37 F.3d 313, 316 (7th Cir.1994) (involvement in previous drug encounters); United States v. Evans, 994 F.2d 317, 322 (7th Cir.), cert. denied 510 U.S. 927, 114 S.Ct. 335, 126 L.Ed.2d 280 (1993) (presence in a high crime area). Furthermore, the reasonableness of the suspicion was buttressed by Deputy Rehg's belief that Duguay's car had turned off the road in an attempt to avoid a roadblock on Dooley Avenue. See, e.g., United States v. Trevino, 60 F.3d 333, 335 (7th Cir.1995), cert. denied --- U.S. ----, 116 S.Ct. 739, 133 L.Ed.2d 689 (1996). Giving due weight to inferences drawn from these facts by the district judge and Marshal Rehg, we concur with the ruling of the district court that the cumulative effect of these articulated bases constituted a reasonable suspicion.
Duguay's other argument is that the district court erred in determining that the warrantless search and seizure of the Nissan Maxima were valid. The sole theory advanced by the government is that the search of Duguay's car was pursuant to a valid decision to impound the car, and that the search was for inventory purposes. Both the decision to take the car into custody and the concomitant inventory search must meet the strictures of the Fourth Amendment. See, e.g., Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). Although the parties have commingled the issues in their briefs, the decision to impound (the "seizure") is properly analyzed as distinct from the decision to inventory (the "search"). See, e.g., Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct. 2464, 2470-71, 41 L.Ed.2d 325 (1974). After careful review of the large body of case law on inventory searches and the considerably smaller number of cases on impoundment, we must conclude that the police conduct here violated the Fourth Amendment. We have two independent reasons for reaching this conclusion.
1. "[S]tandardized criteria or established routine must regulate" inventory searches. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (suppressing evidence because the Florida Highway Patrol did not have a policy with respect to opening containers within a seized car). Among those criteria which must be standardized are the circumstances in which a car may be impounded. The Illinois Motor Vehicle Code extensively regulates the circumstances of permissible impoundment. See 625 ILCS 5/11-1302, et seq.
The lack of a written policy, however, is not dispositive. Wells emphasizes "standardized criteria or established routine," however, suggesting that a well-honed department routine may be sufficient. See, e.g., United States v. Arango-Correa, 851 F.2d 54, 59 (2nd Cir.1988); cf. Pembaur v. Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986) (an "official policy" need not be in writing to support liability under 42 U.S.C. § 1983). At the suppression hearing, two Alton police officers testified about the department impoundment and search policies. The district judge found that the testimony of Detective Scott Waldrup was sufficient to establish that the department had a standard policy.
We disagree. While a written protocol is not sine qua non, we are not satisfied that the Alton Police Department employs a standardized impoundment procedure. Detective Waldrup (who was the department field instructor) testified:Since I have been on the department we always inventory and tow vehicles after the person in control of the vehicle or the owner is arrested.
Aug. 19, 1994 Suppression Hrg. Tr., at 26. As Duguay was not driving the vehicle, under Waldrup's described policy, the impoundment was authorized because Duguay was assumed to be the owner of the car--a proposition which was hotly disputed at the suppression hearing.
Waldrup's testimony is inconsistent with the suppression hearing testimony of Detective Alfred Adams, who testified that the Alton policy was: "if a person is arrested in a vehicle, we tow the vehicle." See August 19, 1994 Suppression Hrg. Tr., at 38. Under Adams' described policy, impoundment was authorized because Duguay was a passenger.
[S]ince I have been on the Alton Police Department we have had an unwritten departmental policy. Any time a person is arrested, taken from the vehicle or out of the vehicle where they do not have control over it, we inventory and tow the vehicle.
Nov. 15, 1994 Trial Tr., at 131. In light of these inconsistencies, in our opinion the district court was not warranted in determining that the Alton impoundment policy was sufficiently standardized under Wells.
2. The leading case of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) treats impoundments and inventory searches as distinctive processes, which are warranted in different (though frequently overlapping) circumstances. Impoundments by the police may be in furtherance of "public safety" or "community caretaking functions," such as removing "disabled or damaged vehicles," and "automobiles which violate parking ordinances, and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic." Opperman, at 368-369, 96 S.Ct. at 3096-97. An impoundment must either be supported by probable cause, or be consistent with the police role as "caretaker" of the streets and completely unrelated to an ongoing criminal investigation. Id., at 370, n. 5, 96 S.Ct. at 3097, n. 5. These rationales are distinct from the permissible reasons for conducting a routine inventory of the contents of an impounded vehicle, which are "to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987).
tow[s] vehicles after the person in control of the vehicle or the owner is arrested ... for the protection of the owner of the vehicle and for the liability purpose of the Alton Police Department. We're not about to leave a vehicle parked on Dooley Drive, especially after we have arrested the occupant of it. The vehicle could be vandalized, stolen, a number of things, in which case the Alton Police Department would be liable for the condition of the vehicle.
August 19, 1994 Suppression Hrg. Tr., at 26-27. While protection of the arrestee's property and municipal liability are both valid reasons to conduct an inventory after a legal impoundment, they do not establish the a priori legitimacy of the seizure.
Detective Waldrup's rationales do not support the decision to impound Duguay's car. The suggestion that the police were obliged to impound the vehicle "to protect it" from theft or vandalism, strikes us as making up new police obligations after the fact where none existed before. The police do not owe a duty to the general public to remove vulnerable automobiles from high-crime neighborhoods. The Illinois Local Government Tort Immunity statute does not impose a duty on the police to protect the property of individuals from tort or crime. See 745 ILCS 10/4-102 ("Neither a local public entity nor a public employee is liable for ... failure to prevent commission of crimes."); see also Bank of Illinois v. Over, 65 F.3d 76, 77 (7th Cir.1995). Similarly, the police owe no duty to incarcerated persons to protect personal property from private injury. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
As for avoiding civil liability, it is clear that impounding the car increased the City of Alton's potential exposure. The state owes no legal duty to protect things outside its custody from private injury. Cf. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267, 272 (7th Cir.1990). As there is no tort for omissions by state actors, the assertion of custody over Duguay's automobile could only increase the risk of liability.
Furthermore, impoundment based solely on an arrestee's status as a driver, owner, or passenger is irrational and inconsistent with "caretaking" functions. Under either Detective Waldrup or Detective Adams' policies, towing is required any time the arrestee is carted off to jail, regardless of whether another person could have removed the car and readily eliminated any traffic congestion, parking violation, or road hazard.
Duguay's car was impounded after his arrest, despite the fact that Gloria Vaughn had driven the car, had possession of the keys, and was prepared to remove the car from the street. There was unrefuted evidence that Duguay's brother William Coles, who is another son of the title owner, was also present at the time of the arrest. Aug. 19, 1994 Suppression Hrg. Tr., at 48.
The touchstone of Fourth Amendment analysis is "reasonableness." See, e.g., Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). The policy of impounding the car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for impoundment is for the "caretaking" of the streets. While it is eminently sensible not to release an automobile to the compatriots of a suspected criminal in the course of a criminal investigation, if the purpose of impoundment is not investigative, and in the absence of probable cause, we do not see what purpose denying possession of the car to a passenger, a girlfriend, or a family member could possibly serve. See, e.g., United States v. Pappas, 735 F.2d 1232 (10th Cir.1984).
The decision to impound an automobile, unless it is supported by probable cause of criminal activity, is only valid if the arrestee is otherwise unable to provide for the speedy and efficient removal of the car from public thoroughfares or parking lots. This conclusion is consistent with this court's inventory search precedents. See, e.g., United States v. Wilson, 938 F.2d 785 (7th Cir.1991), cert. denied 502 U.S. 1062, 112 S.Ct. 946, 117 L.Ed.2d 115 (1992) (solo driver arrested); United States v. Velarde, 903 F.2d 1163 (7th Cir.1990) (both passenger and driver had suspended licenses); United States v. Griffin, 729 F.2d 475 (7th Cir.), cert. denied 469 U.S. 830, 105 S.Ct. 117, 83 L.Ed.2d 60 (1984) (driver lacked valid license, and passenger arrested for outstanding warrant). Similarly, the Illinois courts have repeatedly found that impoundments and subsequent inventory searches are invalid if the basis of impoundment was not reasonable. See, e.g., People v. Fox, 62 Ill.App.3d 854, 20 Ill.Dec. 84, 379 N.E.2d 917 (1978) (passenger could have removed car); People v. Velleff, 94 Ill.App.3d 820, 50 Ill.Dec. 222, 419 N.E.2d 89 (1981) (passenger could have removed car); People v. Brown, 100 Ill.App.3d 57, 55 Ill.Dec. 429, 426 N.E.2d 575 (1981) (car legally parked and no indication it had been abandoned). Under Illinois law, impoundment is permissible only when the arrestee was not able to provide for immediate removal of the vehicle.2 This principle is also reiterated in the Illinois Motor Vehicle Code, which enumerates the circumstances in which the police may impound a vehicle.3 These Illinois authorities are illustrative of the constitutionally permissible parameters of the power to impound. The government has not satisfied its burden of showing that this impoundment was reasonable or permissible.
Having concluded that the impoundment and search of Duguay's car constituted a violation of the Fourth Amendment, we now address the separate question of whether the exclusionary rule's remedy is appropriate. See Arizona v. Evans, 514 U.S. 1, ----, 115 S.Ct. 1185, 1190, 131 L.Ed.2d 34 (1995). Evans requires a court finding a Fourth Amendment violation to determine whether, in context, suppression of the evidence is consistent with the exclusionary rule's "general deterrent effect" on future police conduct. Id. In our opinion, suppression of the evidence is consistent with the rule's general deterrent effect; the government has offered no basis for a contrary conclusion.
For the foregoing reasons, the conviction on Count III is AFFIRMED. The denial of the motion to suppress is REVERSED. The conviction on Count I is VACATED and Count I is REMANDED for a new trial.
KANNE, Circuit Judge, dissenting in part and concurring in part.
In weighing the testimony of the Alton police detectives, the majority notes what are described as "inconsistencies" and thus determines that the Alton police did not have a standard policy with regard to the impoundment of vehicles. Supra at 352. I disagree.
[I]f a person is arrested in a vehicle, we tow the vehicle.
[W]e always inventory and tow vehicles after the person in control of the vehicle or the owner is arrested.
Any time a person is arrested, taken from the vehicle or out of the vehicle where they do not have control over it, we inventory and tow the vehicle.
Rather than being inconsistent, a realistic reading of this testimony, placed in context, discloses that the Alton police have a standard policy that if the person in control of a vehicle is arrested and taken into custody, that vehicle is impounded and an inventory search conducted. It certainly does not seem to me to have been error for the long-tenured district judge--who observed the detectives testify--to have made such a determination.
The Supreme Court in Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), directs that "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." While briefly mentioned by the majority, I do not believe this admonition by the Supreme Court played a part in the majority's analysis of the existence of a standard impoundment policy.
Turning to the validity of the impoundment of the vehicle controlled by Duguay, it is not my view that the Alton police detectives were (as the majority suggests) "making up new police obligations after the fact where none existed before." Supra at 352. This is a clear indication-although unstated--that the majority believes the impoundment of the car over which Duguay had control to be pretextual. Again, I see no reason to discount the district judge's contrary credibility determination. More significantly, however, the issue is not a question of pretext but whether the impoundment was objectively reasonable under the circumstances.
Like the district judge, I find that the situation with which the detectives were confronted was sufficient to establish a reasonable and constitutionally correct basis for impounding Duguay's vehicle, to-wit: prevent it from being vandalized or stolen.
We, along with other courts of appeals, have determined that the police may lawfully impound automobiles when doing so accords with established procedures and is necessary either to remove the automobile from a public way or to protect the automobile or its contents from theft or vandalism. See, e.g., United States v. Ramos-Morales, 981 F.2d 625, 627 (1st Cir.1992); Cabbler v. Superintendent, 528 F.2d 1142, 1145-46 (4th Cir.1975); United States v. Staller, 616 F.2d 1284, 1290 (5th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980); United States v. Balanow, 528 F.2d 923, 924 (7th Cir.1976); United States v. Agofsky, 20 F.3d 866, 872-73 (8th Cir.1994); United States v. Ibarra, 955 F.2d 1405, 1409 (10th Cir.1992). We recognized in Griffin that a police department's unique province as a caretaker of the public interest affords it some degree of latitude in determining whether impoundment is appropriate. 729 F.2d at 480 (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976)).
In this case, the officers were faced with the choice of abandoning the car in a high crime area (with the attendant consequences) or impounding it for safekeeping. It seems quite reasonable for the Alton police to have opted for impoundment where the owner is absent and the person asserting control is under arrest. The police were certainly not required to turn the car over to bystanders Coles or Vaughn. The most prudent and constitutionally valid course, under the situation which presented itself to the detectives, was the one taken.
I therefore dissent as to Count I, and I concur with the result in Count III.