# Petition — In re Ramirez

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1284%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 978

## Text

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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Pi hee

i
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

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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.

?

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-

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1284%3A1. Public record. Not legal advice.