Petition — In re Ramirez

80-193 264 |, EILED "

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Fee 6 106i

ALEXANDER L. STEvas,

CLERK

| arias

IN THE

Supreme Court of the United States

October Term, 1980

THERESA C. SANDERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

for the Ninth Circuit.

PETITION FOR WRIT OF CERTIORARI.

PETER N. PRIAMOS,

Attorney at Law,

707 Wilshire Boulevard,

Suite 3281,

Los Angeles, Calif. 90017,

(213) 628-9152,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented for Review.

1. Whether Petitioner was denied Due Process of Law

as guaranteed by the United States Constitution when, dur-

ing jury deliberations, the bailiff informed the jurors that

they would be required to return on the following Monday

if they failed to reach a verdict by 4:00 P.M. on Friday,

where the jury reached its verdict at 3:50 P.M. on said day,

and where the trial court failed to inquire into the effect of

said communication upon the deliberations of the jury.

2. Whether Petitioner was denied Due Process of Law

as guaranteed by the United States Constitution when the

trial cou:t failed to give cautionary accomplice instructions

sua sponte despite the fact that the status of the witness as

an accomplice was apparent, despite the fact that the ac-

complice testimony was the only direct evidence of guilt,

despite the fact that absent such accomplice testimony no

conviction could have been had, but where the United States

Court of Appeals for the Ninth Circuit found there to exist

some corroboration of the accomplice testimony.

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TABLE OF CONTENTS

Page

Questions Presented for Review ...............05. i

EE a Sx Bos Ws cipihace Visi wha Ue de ce paen 1

PUNE 6 ak a's desc \ pes 684 void Bin bo $v 8b som 1

Constitutional and Statutory Provisions............. 2

eT ge rrr arr eer peer 4

PRES 3s... aba died s 8'0 6 6 8 0:0 ee ea Re Ro epsiels 7

1. A Communication by a Bailiff to the Jury Which

Tends to Hasten Their Verdict Is Inherently Coer-

cive, and Such Communication Creates a Mini-

mal Duty on the Part of the Trial Court to Investi-

gate the Effect of Such Coercion Upon the Jury’s

Decisional Process—Particularly Where, as

Here, the Jury’s Conduct in Conformity With the

Coercion Implies an Effect Upon Their Decisional

POUR ein ops ch ip wo abn bad bata en eter

Where the Testimony of a Single Individual Who

Was Clearly an Accomplice Is the Primary Evi-

dence of Guild, Where Such Testimony Is Only

Indirectly Corroborated Respecting the Participa-

tion of Petitioner, the Trial Court Should Be Re-

quired to Give Cautionary Accomplice Instruc-

go | Pr rere ete sn eee rer

NNN oe ale biel bk Sit ee

TABLE OF AUTHORITIES

Cases Page

Baines v. United States, 347 F. 2d 925 (8th Cir. 1965)

eee. 6-6 OB eoee te FOP C9 CPO CSO Cee eae Cees OO Dore DOE ee COD

PRRs WAS SA EAR e's, 0S Ride wrclladain’d sb ala Mp pM 9, iL,

Continental Baking Co. v. United States, 281 F. 2d 137

PO PUN gcc WEES WK AN Vadis Rene cee st’ bees

Cool v. United States, 409 U.S. 100 (1972) ........

Goff v. United States, 446 F. 2d 623 (10th Cir. 1971)

Henderson v. United States, 204 F. 2d 126 (6th Cir.),

cert. denied, 349 U.S. 920, reh. denied, 349 U.S. 969

CRO? kik SSS REO CEERNS PEC reece as etvscaddea

Holmgren v. United States, 217 U.S. 509 (1910) ....

Jenkins v. United States, 380 U.S. 445 (1965) .... 7,

Lett v. United States, 15 F. 2d 686 (8th Cir. 1927) ..

Little v. United States, 331 F. 2d 287 (8th Cir.), cert.

denied, 379 U.S. 384 (1964) ..............200-

Mattox v. United States, 146 U.S. 140 (1892) ......

Mee v. United States, 316 F. 2d 467 (Sth Cir.), cert.

denied, 377 U.S. 997, reh. denied, 379 U.S. 873

RSI ow, eee kine x bik AA MAN aie ee he dees

Morgan v. United States, 399 F. 2d 93 (Sth Cir.), cert.

GROG. SOS ahs BORD CHMOD oh 6 ihv os cee cc cee’

On Lee v. United States, 343 U.S. 747, reh. denied, —

SAS PST Oe a eae ci RS ee bow la been bo wo

Parker v. Gladden, 385 U.S. 363 (1966) atin nak

Stone v. United States, 113 F. 2d 524 (2d Cir.), cert.

denied, 324 U.S. 867, reh. denied, 325 U.S. 892

CRD a hs ek bo ROMS bao kf ULANS Ec tais cae ve’

Stoneking v. United States, 232 F. 2d 38 (8th Cir.), cert.

Gentes, FES Vids Bae ase 6s Sons ei Weve sees

12

Ss

*-%

iv

Page

Sunderland v. United States, 19 F. 2d 202 (8th Cir. 1927)

Tuckerman v. United States, 291 F. 958 (6th Cir.), cert.

denied, 263 U.S. 716 (1923), and ovrid. on other

SONNE FOP i AO OOO ei ina COW Seales CKO.

United States v. Cady, 495 F. 2d 742 (8th Cir. 1974)

6. 5.6.5 ©.6°O' Os © 6.0.8 0 ¢€.6 8 6 2 616 8'6 OCP 8 ¢ 6.6 oO. O: 8 601010 @€.6 068 6 O

United States v. Dellinger, 472 F. 2d 340 (Sth Cir.), cert.

denied, 410 U.S. 970 (1973) ..........cecceceee

United States v. Finnazo, 288 F. 2d 175 (6th Cir.), cert.

GORGE, FOOT) Se CEMOE) ss oc clecciccccsccnw’

United States v. Garcia, 528 F. 2d 580 (Sth Cir.), reh.

denied, 531 F. 2d 575, and cert. denied, 426 U.S. 952

9, TESTERS TINS «*, caster piaany Ae

United States v. Grosso, 358 F. 2d 154 (3rd Cir. 1965),

reversed on other grounds, 390 U.S. 62..........

United States v. House, 471 F. 2d 886 (1st Cir. 1973)

United States v. Ketola, 478 F. 2d 64 (9th Cir.), cert.

denied, 414 U.S. 847 (1973) ......... ccc eee

United States v. La Sorsa, 480 F. 2d 522 (2d Cir.), cert.

Gees. 436 US. Bee Cas oe ok ao 8.0 00:50 6 ota cea

United States v. Lee, 506 F. 2d 111 (D.C. Cir. 1974),

cert. denied, 421 U.S. 1002 (1975) .............

United States v. Levi, 177 F. 2d 827 (7th Cir. 1949)

eo ‘com OOS 0'D. @ O19. 8.0 2.10 :6 8 6.2 6 2506 £0.22 9 'O.0.0°° 2S C66 2.6.0 8.60

11

13

rT... 4 eee ee Yt. SP

mae tt geal

:>

enous

:

' Vv

Page

United States v. Owens, 460 F. 2d 268 (10th Cir. 1972)

EES BBS [RENE TREE i FR ROR ATR ACP a Ale Oe RR PUR 12

United States v. Waldron, 568 F. 2d 185 (10th Cir.), cert.

Gented, 4340.5. 1000 C4977). sk kk ectieccce 12

United States v. Wasko, 473 F. 2d 1282 (7th Cir. 1973)

eS PR ay St SNPS AE Rh A” oi - Bad aye DA ae > Ae a 12

United States v. Wright, 573 F. 2d 68 (ist Cir.), cert.

denied, 436 U.S. 949 (1978) and ovrid. on other

grounds, 585 F. 2d 1113 (1st Cir. 1978) ......... 11

Washington v. Texas, 388 U.S. 14 (1967).......... )

Wheaton v. United States, 133 F. 2d 522 (8th Cir. 1943)

68 RG SRE Ce ae RR DIES cy cee) en ae 8

Williamson v. United States, 332 F. 2d 123 (Sth Cir.

DE ara a ate Tei aa. go a's de keWc Ve 4 12

Constitution

United States Constitution, Fifth Amendment ....... 2

United States Constitution, Sixth Amendment ....... 2

Statutes

United States Code, Title 18, Sec. 495 ........ we aa

United States Code, Title 18, Sec. 641 ........ ae

United States Code, Title 18, Sec. 1708..... \. 3,

United States Code, Title 28, Sec. 1254(1) ......... l

IN THE

Supreme Court of the United States

October Term, 1980

THERESA C. SANDERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI.

Petitioner, THERESA C. SANDERS, prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Ninth Circuit entered De-

cember 8, 1980, affirming her conviction under 18 U.S.C.

§ 641, 18 U.S.C. § 495 and 18 U.S.C. § 1708, and that

on hearing the judgment of conviction be reversed.

Opinions Below.

The opinion of the Court of Appeals (App. 1) is reported

in an unpublished opinion, No. 79-1784, decided December

8, 1980.

Jurisdiction.

The judgment of the Court of Appeals for the Ninth Cir-

cuit was entered on December 8, 1980. This court has

jurisdiction under 28 U.S.C. § 1254(1).

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pl, anes

Constitutional and Statutory Provisions.

United States Constitution, Amendment V:

‘*No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.”’

United States Constitution, Amendment VI:

‘In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defence.’’

18 U.S.C. 641:

‘*Whoever embezzles, steals, purloins, or knowingly

converts to his use or to the use of another, or without

authority, sells, conveys or disposes of any record,

voucher, money, or thing of value of the United States

or of any department or agency thereof, or any property

made or being made under contract for the United

States or any department or agency thereof; or

“Whoever receives, conceals, or retains the same with

intent to convert it to his use or gain, knowing it to

have been embezzled, stolen, purloined or converted—

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‘Shall be fined not more than $10,000 or imprisoned

not more than ten years, or both; but if the value of

such property does not exceed the sum of $100 he shall

be fined not more than $1,000 or imprisoned not more

than one year, or both.

‘The word ‘‘value’’ means face, par, or market value,

or cost price, either wholesale or retail, whichever is

greater.’ ”’

18 U.S.C. 495:

**Whoever falsely makes, alters, forges, or counterfeits

any deed, power of attorney, order, certificate, receipt,

contract or other writing, for the purpose of obtaining

or receiving, or of enabling any other person, either

directly or indirectly, to obtain or receive from the

United States or any officers or agents thereof, any

sum of money; or

“Whoever utters or publishes as true any such false,

forged, altered, or counterfeited writing, with intent

to defraud the United States, knowing the same to be

false, altered, forged, or counterfeited; or

“Whoever transmits to, or presents at any office or

officer of the United States, any such writing in support

of, or in relation to, any account or claim, wit!) intent

to defraud the United States, knowing the same to be

false, altered, forged, or counterfeited— »

‘Shall be fined not more than $1,000 or imprisoned not

more than ten years, or both.’ ”’

18 U.S.C. 1708:

**Whoever steals, takes, or abstracts, or by fraud or

deception obtains, or attempts so to obtain, from or out

of any mail, post office, or station thereof, letter box,

mail receptacle, or any mail route or other authorized

depository for mail matter, or from a letter or mail

carrier, any letter, postal card, package, bag, or mail,

or abstracts or removes from any such letter, package,

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bag, or mail, any article or thing contained therein, or

secretes, embezzles, or destroys any such letter, postal

card, package, bag, or mail, or any article or thing

contained therein; or

“Whoever steals, takes, or abstracts, or by fraud or

deception obtains any letter, postal card, package, bag,

or mail, or any article or thing contained therein which

has been left for collection upon or adjacent to a col-

lection box or other authorized depository of mail

matter; or

“Whoever buys, receives, or conceals, or unlawfully

has in his possession, any letter, postal card, package,

bag, or mail, or any article or thing contained therein,

which has been so stolen, taken, embezzled, or ab-

stracted, as herein described, knowing the same to have

been stolen, taken embezzled, or abstracted—

‘Shall be fined not more than $2,000 or imprisoned not

more than five years, or both.’ ”’

Statement of the Case.

This is a Petition for Writ of Certiorari after an appeal

in United States Courts of Appeals for the Ninth Circuit

was denied. Said appeal was from a conviction in the United

States District Court for the Central District of the State of

California of two counts of violation of Federal laws, for

which Petitioner was granted five years probation and was

required to pay restitution in the sum of $5,175.73.

On August 24, 1979, a 37 count indictment was filed

charging Petitioner, in Count I, with conspiring to violate

Title 18 U.S.C. § 641, and Title 18 U.S.C. § 495, by the

theft of United States Treasury checks and the attempted

and actual false endorsement of the payees thereon. Count

Il charged Petitioner with violation of Title 18 U.S.C. §

1708, by theft of letters containing United States Treasury

checks. Count 37 of said indictment charged Petitioner with

gira

violation of Title 18 U.S.C. § 1708, by unlawfully having

in her possession the contents of letters which were stolen

from the mail.

Petitioner pled not guilty as to all counts. On November

2, 1979, after trial by jury, Petitioner was found guilty

respecting Counts I and II only.

On November 27, 1979, Petitioner filed a Motion for

New Trial, and said motion was denied on November 30,

1979.

During the trial, an accomplice, SHIRLEY EDWARDS,

testified that Petitioner gave her certain treasury checks

which had been stolen by Petitioner from her place of em-

ployment, the United States Post Office. She testified further

concerning the manner in which she cashed the checks.

Other witnesses testified as to the manner in which the

stolen treasury checks were transported and received by the

post office and established that Petitioner had access to the

checks.

An individual, COLUMBUS MACKEY, JR.., testified

that he received the stolen checks from SHIRLEY

EDWARDS and cashed them at his liquor store.

Agents of the Secret Service testified that Petitioner made —

certain inconsistent statements concerning the manner in

which she paid the bail for Petitioner’s son who had been

incarcerated. Petitioner explained the inconsistencies.

No person observed Petitioner with the stolen checks

other than the accomplice, SHIRLEY EDWARDS. Fur-

thermore, her fingerprints were not found on any of the .

checks.

Defense counsel did not request an instruction regarding

accomplices and no such instruction was given by the court

sua sponte.

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a,

At approximately 11:15 A.M., on Friday, November 2,

1979, the jury commenced deliberations. The trial judge

informed the bailiff that the jury would be dismissed at 4:00

P.M. due to other engagements of the Judge. At approxi-

mately 3:15 P.M., the bailiff relayed such information to

the jury. Upon inquiry by one of the jurors as to the con-

sequences of their failure to reach a verdict by that time,

the bailiff informed the jurors that they would be required

to return on the following Monday. The jury reacted

disfavorably to this proposition.

At the time the bailiff originally informed the jury of the

consequences of delay, the foreman informed the bailiff

that the jury would probably be required to return on the

following Monday.

At approximately 3:50 P.M., the bailiff returned to the

jury to inform them they could deliberate longer on Friday.

The bailiff was informed at that time that the jury had

reached its verdict before the bailiff had the opportunity to

tell the jurors that they could deliberate longer.

The District Court of Appeals for the Ninth Circuit

affirmed the conviction in a memorandum opinion (App.

1).

Petitioner seeks review of the affirmance of the conviction

and sentence, and outright reversal of the conviction.

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1. A Communication by a Bailiff to the Jury Which

Tends to Hasten Their Verdict Is Inherently Coer-

cive, and Such Communication Creates a Minimal

Duty on the Part of the Trial Court to Investigate

the Effect of Such Coercion Upon the Jury’s De-

cisional Process—Particularly Where, as Here, the

Jury’s Conduct in Conformity With the Coercion

Implies an Effect Upon Their Decisiona’ Process.

In the case at bar, the bailiff advised the jury of the

negative consequences of failing to reach a verdict at 4:00

P.M. The jurors did in fact reach a verdict at approximately

3:50 P.M. The coincidence between the time of reaching

a verdict and the time stated by the bailiff implies that the

jury was in fact influenced by such coercion.

Private communications between the jury and the officer

in charge are absolutely forbidden unless their harmlessness

is made to appear. (Mattox v. United States, 146 U.S. 140

(1892); Morgan v. United States, 399 F. 2d 93, 97 (Sth

Cir.), cert. denied, 393 U.S. 1025 (1968); Little v. United

States, 331 F. 2d 287, 295 (8th Cir., cert. denied, 379

U.S. 384 (1964); Mee v. United States, 316 F. 2d 467 (Sth

Cir.), cert. denied,.377 U.S. 997, reh. denied, 379 U.S.

873 (1963); Sunderland v. United States, 19 F. 2d 202, 212

(8th Cir. 1927); Stone v. United States, 113 F. 2d 524 (2d

Cir.), cert. denied, 324 U.S. 867, reh. denied, 325 U.S.

892 (1944).)

Statements of the bailiff or of the court to the jury tending

to influence their verdict have repeatedly been held suffi-

cient for reversal. (Parker v. Gladden, 385 U.S. 363 (1966)

(bailiff told juror that defendant was a wicked fellow and

guilty; told another juror that appellate court would correct

any errors the jury might make); Jenkins v. United States,

380 U.S. 445 (1965) (coercive effect of statement by judge

that jury must reach a verdict); Wheaton v. United States,

133 F. 2d 522 (8th Cir. 1943) (bailiff told jury that if they

failed to reach a verdict they would be required to stay until

the following day—the fact that the jury reached a verdict

soon after the statement implied coercion); United States

v. Dellinger, 472 F. 2d 340 (Sth Cir.), cert. denied, 410

U.S. 970 (1973) (fact that jury verdict came in close tem-

poral proximity to hung jury message indicated prejudice). )

Furthermore, the court may not, through the medium of

the bailiff, fix a specific time within which the jury must

return a verdict or otherwise coerce the verdict. (United

States v. Grosso, 358 F. 2d 154, 158 (3rd Cir. 1965),

reversed on other grounds, 390 U.S. 62; Henderson v.

United States, 204 F. 2d 126 (6th Cir.), cert. denied, 349

U.S. 920, reh. denied, 349 U.S. 969 (1952) (communi-

cation of a judge through the medium of the bailiff was

improper); United States v. Contreras, 463 F. 2d 773 (9th

Cir. 1972) (‘‘Allen’’ charge given prior to time jury indi-

cated it was deadlocked was premature); Goff v. United

States, 446 F. 2d 623 (10th Cir. 1971) (judge may not fix

a specific time within which the jury must return a verdict). )

The within court should sccept this matter for further

argument and briefing in order to clarify existing principles

respecting jury coercion thereby exercising its supervisory

function respecting the federal judicial system. In particular,

this court should establish more precise guidelines con-

cerning what acts constitute jury coercion. Further, this

court should examine the effect of a jury apparently acting

in conformity with the coercive influence. Does such a

coincidence between the coercive influence and the actions

of the jury impose a minimal duty on the trial court to

investigate further?

sie ies

2. Where the Testimony of a Single Individual Who

Was Clearly an Accomplice Is the Primary Evidence

of Guilt, Where Such Testimony Is Only Indirectly

Corroborated Respecting the Participation of Pe-

titioner, the Trial Court Should Be Required to Give

Cautionary Accomplice Instructions Sua Sponte.

The United States Supreme Court has heretofore remained

virtually silent regarding the question of whether, or under

what circumstances, a cautionary instruction relating to ac-

complice testimony is required, and whether, or under what

circumstances, the omission of such an instruction is prej-

udicial or plain error.

Petitioner has found several cases in which the United

States Supreme Court has indirectly, or through dicta, made

Statements concerning the accomplice instruction issue.

(Cool v. United States, 409 U.S. 100 (1972) (Court rec-

ognizes that accomplice instructions have been in common

use and represent a recognition that an accomplice may have

a special interest in testifying, thus casting doubt upon the

veracity of such testimony); Washington v. Texas, 388 U.S.

14 (1967) (dicta) (accomplice has greater interest in lying

in favor of the prosecution); On Lee v. United States, 343 .

U.S. 747, reh. denied, 344 U.S. 848 (dicta) (use of ac-

complices raises serious question of credibility and defen-

dant is entitled to have the issue submitted to the jury with

careful instructions). )

In Holmgren v. United States, 217 U.S. 509 (1910) and

Caminetti v. United States, 242 U.S. 470 (1917), perhaps

the most recent United States Supreme Court cases directly

dealing with the subject of accomplice instructions, the court

held that where a defendant submitted a proposed accom-

plice instruction couched in improper form, failure to give

such an instruction was not error.

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pe

As will be summarized briefly below, decisions of the

various circuits have been greatly inconsistent. This court

should accept this petition not only because its supervisory

function over the federal courts may be exercised, but also

to define with clarity its stance on the accomplice instruction

issue. Such a clarification would allow for greater unifor-

mity of decision between the various circuits as well as

between courts within each circuit individually.

The District Court of Appeals for the Ninth Circuit herein,

held in the case at bar that no plain error existed by reason

of the failure to give accomplice instructions sua sponte

because the testimony was corroborated and because the

evidence revealed the motives of the accomplice in testi-

fying. The court cited United States v. Lee, 506 F. 2d 111,

120-121 (D.C, Cir. 1974), cert. denied, 421 U.S. 1002

(1975); United States v. Ketola, 478 F. 2d 64, 65 (9th Cir.),

cert. denied, 414 U.S. 847 (1973) to support its conclusions,

Petitioner contends that even if some indirect corrobo-

rative evidence exists, failure to give the cautionary instruc-

tion sua sponte should nevertheless be deemed prejudicial

error—at least where, as here, the accomplice testimony

was the only direct evidence of guilt; where the corrobo-

ration was weak; where conviction without the accomplice

testimony would have been impossible; and finally, where

it was clear that the witness was in fact an accomplice.

Furthermore, the second ground of denying the appeal

herein, to wit, that the jury heard evidence concerning the

motives of the accomplice, should not be sufficient to negate

the requirement for the instruction. Such implied ‘‘bad

motive’’ of an accomplice is probably present in virtually

every trial where an accomplice is involved. Jurors, as a

matter of common sense, are likely to be aware that a par-

ticipant in a crime may be testifying to gain leniency. There-

fore, if this court accepts the above exception to the general

ae ee

requirement for giving accomplice instructions, it would,

in effect, be negating the requirement for such instructions

altogether.

The following is a brief summary of the law on accom-

plice instructions in the various circuits. Great lack of

uniformity exists.

In the First Circuit, courts have held that while it is

prudent to give cautionary instructions, whether requested

or not, failure to do so is not automatic error, at least where

the testimony is not incredible or otherwise insubstantial on

its face. (United States v. Wright, 573 F. 2d 68 (1st Cir.),

cert. denied, 436 U.S. 949 (1978) and ovrid. on other

grounds, 585 F. 2d 1113 (1st Cir. 1978); United States v.

House, 471 F. 2d 886 (1st Cir. 1973).)

In the Second Circuit, where accomplice testimony is an

important part of the government’s case, it is recommended

practice to instruct. However, such an instruction is not

required unless the defendant suffers substantial prejudice.

(United States v. La Sorsa, 480 F. 2d 522 (2d Cir.), cert.

denied, 414 U.S. 855 (1973).)

In the Sixth Circuit, courts have apparently rejected al-

together the contention that an omission of a cautionary

instruction as to accomplice testimony is grounds for re-

versal. (Continental Baking Co. v. United States, 281 F. 2d

137 (6th Cir. 1960); Tuckerman v. United States, 291 F.

958 (6th Cir.), cert. denied, 263 U.S. 716 (1923), and

ovrid. on other grounds, 399 F. 2d 896; United States v.

Finazzo, 288 F. 2d 175 (6th Cir.), cert. denied, 368 U.S.

837 (1961).) The courts in this circuit have failed to disclose

whether their decisions were affected by consideration of

such circumstances as whether the accomplice’s testimony

was corroborated, or was weak or strong. In addition, the

Sixth Circuit cases appear to misconstrue Caminetti v.

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United States, supra, as supporting the broad view that

failure to give cautionary instructions is never reversible

error in the context of accomplices.

In contrast, in the Tenth Circuit, courts have held that

the accomplice instruction must be given sua sponte where

such evidence was the PRIMARY EVIDENCE OF GUILT

or the only evidence DIRECTLY implicating the defendant,

unless there is SUBSTANTIAL CORROBORATION.

(United States v. Owens, 460 F. 2d 268 (10th Cir. 1972);

United States v. Waldron, 568 F. 2d 185 (10th Cir.), cert.

denied, 434 U.S. 1080 (1977).)

A somewhat similar standard exists in the Fifth Circuit

where cases have held that a cautionary instruction was

required where the government’s case rested upon the tes-

timony of a single accomplice (Williamson v. United States,

332 F. 2d 123 (Sth Cir. 1964)), or where the accomplice’s

testimony lacked credibility on its face (United States v.

Garcia, 528 F. 2d 580 (Sth Cir.), reh. denied, 531 F. 2d

575, and cert. denied, 426 U.S. 952 (1976)), OR WHERE

THE TESTIMONY OF AN ACCOMPLICE IS THE ONLY

DIRECT EVIDENCE OF GUILT (Tillery v. United States,

411 F. 2d 644 (Sth Cir. 1969)).

In the Seventh Circuit, varying results have been reached.

Certain cases suggest that where accomplice testimony is

presented, a cautionary instruction should be given and that

plain error is committed where (1) the trial judge’s omission

is combined with another error, (2) the evidence against the

defendant is weak, or (3) the accomplice testimony consti-

tutes a crucial part of the evidence against the accused.

(United States v. Levi, 177 F. 2d 827 (7th Cir. 1949).)

Other cases within the circuit have suggested contrary re-

sults. (United States v. Johnson, 398 F. 2d 29 (7th Cir.

1968); see also United States v. Wasko, 473 F. 2d 1282

(7th Cir. 1973).)

a i

In the Eighth Circuit, courts have held that the omission

of a cautionary instruction was not reversible error unless

such instruction was requested by defense counsel in a

proper form and unless the accomplice testimony was un-

corroborated. (Stoneking v. United States, 232 F. 2d 38

(8th Cir.), cert. denied, 352 U.S. 835 (1956); Lett v. United

States, 15 F. 2d 686 (8th Cir. 1927); Baines v. United

States, 347 F. 2d 925 (8th Cir. 1965); United States v.

Cady, 495 F. 2d 742 (8th Cir. 1974).)

The lack of uniformity between decisions of the various

circuits is due in part to this court’s reluctance to address

this issue in a direct manner. As noted above, at least one

circuit has attempted to apply certain dicta contained in

United States Supreme Court cases decided at the turn of

the century. Such application, in Petitioner’s opinion, is

erroneous.

The court herein should accept this case in order to clarify

its position on this subject, to avoid misapplication of its

early decisions, and to insure uniformity of decision between

the various circuits.

Conclusion.

Based on the foregoing arguments and authorities, it is

submitted that this court should accept this case for a hearing

on the merits.

Dated: February 5, 1981.

Respectfully submitted,

PETER N. PRIAMOS,

Attorney at Law,

Attorney for Petitioner.

APPENDIX.

Memorandum.

United States Court of Appeals for the Ninth Circuit.

United States of America, Plaintiff-Appellee, vs. Theresa

C. Sanders, Defendant-Appellant. No. 79-1784.

Filed: Dec. 8, 1980.

Appeal from the United States District Court for the Cen-

tral District of California, Robert M. Takasugi, Judge

Presiding.

BEFORE: FLETCHER, ALARCON and CANBY, Circuit

Judges.

Sanders appeals her conviction for conspiracy to steal

United States Treasury checks.

She contends that: (1) a statement made by the bailiff to

the jurors during during their deliberations constituted a

denial of due process, and (2) the court’s failure to give an

unrequested cautionary instruction on accomplice testimony

constituted plain error. |

I.

Sanders argues that the statement of the bailiff, in re-

sponse to a juror’s question that the jury would have to

return on Monday if they failed to reach a verdict by 4:00

p.m. constituted an instruction to reach a verdict.

A statement to the jury that it has to reach a verdict is

coercive and reversible error, Jenkins v. United States, 380

U.S. 445, 446 (1964). The statement made by the bailiff

was not coercive. It did not require the jurors to surrender

views conscientiously held. Instead, it was an instruction

that deliberations would continue if the jury had not reached

a verdict within 45 minutes. An instruction to the jury to

deliberate further is not coercive unless accompanied by a

demand that a verdict be reached, or that the minority num-

i

*-*

*.

sreilies

bers should defer to the views of the majority Walsh v.

United States, 371 F.2d 135, 136 (9th Cir.) cert.denied,

388 U.S. 915 (1967). The bailiff’s comment was harmless

and non-coercive: Under these circumstances, no eviden-

tiary hearing was required to determine the effect of the

statement on the jury.

Il.

The accomplice’s testimony was corroborated. Under

such circumstances, it is not plain error to fail to give a

cautionary instruction sua sponte, United States v. Lee, 506

F.2d i11, 120-21 (D.C. Cir. 1974), cert. denied, 421 U.S.

1002 (1975).

The jury was made aware that the accomplice was tes-

tifying pursuant to a plea bargain. Failure to give a cau-

tionary instruction sua sponte is not plain error where the

evidence reveals the motives and raises questions concern-

ing the credibility of an accomplice, United States v. Ketola,

478 F.2d 64, 65 (9th Cir.), cert. denied, 414 U.S. 847

(1973). |

JUDGMENT IS AFFIRMED.