United States v. Richard Ernest Fritts

505 F.2d 168 UNITED STATES of America, Plaintiff-Appellee, v. Richard Ernest FRITTS, Defendant-Appellant. No. 74-1331. United States Court of Appeals, Ninth Circuit. Sept. 19, 1974, Rehearing denied Nov. 15, 1974, Certiorari Denied March 24,1975, See 95 S.Ct. 1428 . William R. McVay (argued), Los Angeles, Cal., for defendant-appellant. James Mueller, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. OPINION Before ELY and WALLACE, Circuit Judges, and POWELL, 1 District Judge. WALLACE, Circuit Judge: 1 Fritts was convicted of conspiracy to import marijuana, 21 U.S.C. 963, importation of marijuana, 21 U.S.C. 952(a), 960(a)(1), and possession with intent to distribute marijuana, 21 U.S.C. 841(a)(1). We affirm. 2 As regards the first claimed error, we do not believe the question of whether Fritts' attorney would be allowed to testify was properly before the trial court. If it were, there was no offer of proof made as to what he would testify. See United States v. Crowder, 464 .f.2d 1284 (9th Cir. 1972), cert. denied, 411 U.S. 908 , 93 S.Ct. 1537 , 36 L.Ed.2d 198 (1973); McCormick, Law of Evidence 51, at 110 (2d ed. 1972). We decline to guess, as suggested by Fritts. 3 The trial…

(dissenting):

I respectfully dissent. I can recall no stronger case for a holding that the court’s failure, acting sua sponte, to present a cautionary instruction in respect to the prosecuting testimony of the accomplices constituted reversible error. Concerning this, I have hitherto expressed my general views in United States v. Randall, 491 F.2d 1317, 1321-1323 (9th Cir. 1974) (dissenting opinion).

In the present case, one of the accomplices who testified for the prosecution had been granted immunity in exchange for his incriminating testimony against the appellant, given by the accomplice *170 before the grand jury. For a prior offense, this accomplice had been in the custody of federal penal authorities, but he was freed in advance of the time of the appellant’s trial.

The second accomplice who testified against the appellant was originally charged with the commission of three felonies in connection with the transaction involving the appellant. The prosecution dismissed two of these felony charges before this accomplice presented his testimony incriminating the appellant. Moreover, this prosecution witness had also been in federal custody because of a prior conviction and…

Before ELY and WALLACE, Circuit Judges, and POWELL, * District Judge.

Fritts was convicted of conspiracy to import marijuana, 21 U.S.C. § 963 , importation of marijuana, 21 U.S.C. §§ 952 (a), 960(a)(1), and possession with intent to distribute marijuana, 21 U.S.C. § 841 (a)(1). We affirm.

As regards the first claimed error, we do not believe the question of whether Fritts’ attorney would be allowed to testify was properly before the trial court. If it were, there was no offer of proof made as to what he would testify. See United States v. Crowder, 464 F.2d 1284 (9th Cir. 1972), cert. denied, 411 U.S. 908 , 93 S.Ct. 1537 , 36 L.Ed.2d 198 (1973); McCormick, Law of Evidence § 51, at 110 (2d ed. 1972). We decline to guess, as suggested by Fritts.

The trial judge stated before the jury that the prosecutor had intimidated the witness Palmer. While we decry such conduct, it does not require reversal of this conviction since the record does not disclose that Palmer’s testimony was affected by the intimidation. See Fuller v. Cox, 315 F.Supp. 867, 870 (W.D.Va. 1970).

Finally, Fritts claims reversal is in order because the trial court failed to give, on its own motion, a cautionary…