GOVERNMENT OF THE CANAL ZONE, PLAINTIFF-APPELLEE,
v.
OBDULIA ROSALIA MORALES, DEFENDANT-APPELLANT

5th Cir. | 1979-10-03
No. 78-5756
Before CLARK, GEE and HILL, Circuit Judges.
603 F.2d 1121 Court of Appeals for the Fifth Circuit (1979)

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Holding

The court held that any error in failing to instruct the jury on accomplice testimony was harmless beyond a reasonable doubt due to corroborating evidence.


Facts & Procedural History

Appellant was convicted of conspiracy to defraud a military exchange service. The conviction was based partly on accomplice testimony, and the trial c…

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Appellant appeals from a conviction of conspiracy to defraud the Army and Air Force Exchange Service of the Canal Zone, an agency of the United States, in violation of 18 U.S.C.A. § 371. The following errors are urged upon us as grounds for reversal: (1) the trial court erred in admitting certain inculpatory statements, categorized as hearsay by C.Z.Code tit. 5, § 2962, without first making the specific findings of reliability required by C.Z.Code tit. 5, § 2962(6); (2) the trial court failed to instruct the jury that under C.Z.Code tit. 6, § 42(a), “[a] conviction can not be had on the testimony of an accomplice unless his testimony is corroborated by other evidence which in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense.”

We find no merit in the first ground for reversal urged upon us by Appellant.

The issue raised by the district court’s failure to give an accomplice instruction is controlled by our decision, this day, in Government of the Canal Zone v. Thrush G. (Garces), 603 F. 2d 1118. As in the present case, Appellants in Thrush G. (Garces) failed to request any accomplice instruction at trial.1 Noting that our review therefore was limited by the plain error standard, Fed.R.Crim.P. 52(a), we held that “in prosecutions under the Canal Zone Code, where an accomplice testifies against the defendant, it is error not to instruct the jury on the substance of Section 42.” 603 F. 2d at 1120.

However, having carefully reviewed the record in this case we are convinced that the testimony of the alleged accomplice was in no sense uncorroborated. The witness, Maggie Wilson, testified to several instances in which she observed the Appellant participating in underringing activities. In addition to other witnesses who testified to Appellant’s underringing activities, the government called Charles G. Fields, a security officer with the Exchange, who recounted an interview with Appellant in which she made incriminating statements.

Thus, we hold that any error committed by the district court in not instructing the jury on the provisions of Section 42 of the Canal Zone Code was harmless beyond a reasonable doubt.

AFFIRMED.

. The alleged accomplice, Maggie Wilson, also testified in Thrush G. (Garces). As we there noted, it is not at all clear that Mrs. Wilson was an “accomplice” within the meaning of C.Z. Code tit. 6, § 42(b). However, in view of our holding in this case, we do not find any need to resolve that question.


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