(concurring):
I concur in the result. At the same time, I note that I am somewhat mystified over the trial court’s failure to instruct the jury to the effect that the testimony of an accomplice should be viewed with caution. All jurists recognize that this is true, especially when there appears the likelihood that an accomplice presenting testimony favorable to the prosecution is likely to obtain some benefits in exchange therefor. It is true that the defense counsel made no request that the instruction be given, and Martin, in attacking his conviction collaterally, may be able to establish that, by reason of his defense attorney’s dereliction in that respect, along with other circumstances, he did not receive that effective assistance of counsel to which he was entitled. Certainly it is inconceivable that there, was any valid “strategic” reason which might have justified the defense attorney’s failure to request an instruction of such importance to his client in this case. If I could act alone, I would hold that the court should have, acting sua sponte, given the instruction, and that its failure to do so constitutes plain reversible error. This, apparently, is the rule of the Tenth Circuit. See United States v. Owens, 460 F.2d 268, at 269 (10th Cir. 1972); see also Williamson v. United States, 332 F.2d 123 (5th Cir. 1964); cf. United States v. House, 471 F.2d 886 (1st Cir. 1973). And see the carefully researched opinion of Judge Coffin in McMillen v. United States, 386 F.2d 29, 30-36 (1st Cir. 1967).
Our court, however, has held that, absent the request of defense counsel, the court’s failure to give the cautionary instruction is not plain error unless “the need for the instruction is sufficiently clear. . . . ” United States v. Marsh, 451 F.2d 219, at 221 (9th Cir. 1971). Applying, as I must, that qualified rule, I cannot bring myself to the conclusion that the judgment here challenged should be reversed.