United States v. John Varner

FILED NOT FOR PUBLICATION MAR 13 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-50071 Plaintiff - Appellee, D.C. No. 5:07-cr-00028-VAP-2 v. MEMORANDUM* JOHN RICHARD VARNER, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Submitted March 7, 2013** Pasadena, California Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ralph R. Beistline, Chief District Judge for the U.S. District Court for the District of Alaska, sitting by designation. Defendant-Appellant John Varner was convicted on four counts of conspiracy and tax fraud. Varner appeals his conviction, arguing that the trial court erred in failing to give the jury an accomplice instruction sua sponte and that counsel’s failure to request the instruction constituted ineffective assistance. A district court’s failure to give a jury instruction sua sponte is reviewed for plain error. United States v. Guthrie, 931 F.2d 564, 567 (9th Cir. 1991). Because we have held that “where an accomplice instruction is not requested, it is not plain error not to give one sua sponte,” United States v. Gere, 662 F.2d 1291, 1295 (9th Cir. 1981), Varner’s first argument fails. Nor was counsel’s failure to request the instruction ineffective assistance. On the record before us, we conclude that defense counsel’s conduct “falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984). The judgment is AFFIRMED.