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GRIFFIN v. UNITED STATES Blackmun, J., concurring in judgment
evidence was sufficient.” United States v. Townsend, 924 F. 2d 1385, 1414 (1991).
What we have said today does not mean that a district court cannot, in its discretion, give an instruction of the sort petitioner requested here, eliminating from the jury’s consideration an alternative basis of liability that does not have adequate evidentiary support. Indeed, if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury’s consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. Justice Blackmun, concurring in the judgment. I agree with the Court that petitioner has not made out a violation of the Due Process Clause, although I do not follow the Court on its self-guided tour of the common law. See ante, at 49–52. It is enough, I think, to observe that petitioner has not presented any sustained constitutional argument whatsoever. I agree further with the Court’s conclusion that Yates v. United States, 354 U. S. 298 (1957), does not require reversal in this case, and that petitioner has not sufficiently distinguished Turner v. United States, 396 U. S. 398 (1970). See ante, at 56–59. I would emphasize more strongly than does the Court, however, the danger of jury confusion that was inherent in this multiple-defendant, 23-count indictment and the resulting 5- to 6-week trial.
