United States v. Richard Ernest Fritts

505 F.2d 168

Opinions

OPINION

Before ELY and WALLACE, Circuit Judges, and POWELL,

* District Judge.

WALLACE, Circuit 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 instruction on accomplice testimony. We have already rejected the contention. United States v. Randall, 491 F.2d 1317 (9th Cir. 1974). The parallel argument that uncorroborated accomplice testimony cannot lead to a conviction has been similarly rejected. United States v. Castro, 476 F.2d 750 (9th Cir. 1973). Fritts' argument that the government’s use of an accomplice witness after granting him immunity, early parole or other favors violates Fritts’ due process rights is rejected.

Affirmed.

Honorable Charles L. Powell, United States District Judge, Eastern District of Washington, sitting by designation.