dissenting.
Although (or perhaps because) I differ with one aspect of the panel’s opinion, I should stress at the outset my concurrence in its other two facets — the upholding of the trial court’s Fed.R.Evid. (“Rule”) 404(b) ruling and the determination that the évidence at trial was amply sufficient to support the jury verdict. In a sense it is those very factors — as totally dependent as they and McGuire’s conviction are on the testimony of accomplices Dodds and Earlywine — that make the troublesome nature of the jury instruction about those witnesses so critical.
Rule 404(b) deals with one of the most sensitive areas of the law of evidence, most particularly in criminal cases. All of us in the criminal justice system (judges and lawyers alike) recognize the need to minimize the possibility that jurors might convict a defendant because of what he or she has done in the past, rather than on what he or *463she is charged with now. That same need to avoid convictions simply because defendant is a bad man or a bad woman, rather than by proving defendant’s commission of the charged offense, is what drives Rule 404(b)’s prohibition against the admissibility of proof as to prior acts or crimes merely as evidence of defendant’s propensity to commit the current crime.
In this instance the trial judge properly analyzed the proffered evidence from McGuire’s two accomplices in terms of the non-propensity purposes that are permitted by Rule 404(b), as well as the judge’s having engaged in the appropriate balancing called for by Rule 403. With that evidence before the jurors, it follows as a matter of course that they could rationally have found McGuire guilty beyond a reasonable doubt of having committed the current bank robbery — the standard dictated by the seminal decision in Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979) and its numerous progeny in this Circuit and elsewhere.
But the fact that such Rule 404(b) evidence — indeed all of the evidence leading to McGuire’s conviction — emanated from the uncorroborated testimony of those two accomplices makes it all the more important that the jury have been properly cautioned about the need to view such testimony through a special lens. Here is the full instruction that the trial judge gave in that respect:
Oftentimes, in cases where more than one person is claimed to have participated with accomplices in criminal activity, for which criminal charges have been or may be brought, such claimed accomplices, for the purpose of avoiding or lessening potential charges, may admit their participation and guilt in criminal offenses, and negotiate with the government about giving testimony concerning the participation of others in such offenses or other criminal activity, in exchange for some type of favorable treatment for himself by the government prosecuting officials. Such favorable treatment may take many forms, such as dismissal of all prosecution, substituting a lesser charge, and/or recommendation to a court for a lighter sentence or probation from sentence.
Such plea negotiation or bargaining is an approved and legitimate practice in law enforcement and judicial proceedings for the dual purposes of detecting or proving participation of others in a crime than the testifying person, and enhancing the operation of the law enforcement and judicial processes.
Nevertheless, while such agreements are approved and sanctioned by courts and society, a jury listening to testimony of a co-defendant or a claimed accomplice in a crime, is entitled to consider and should carefully weigh such testimony to determine its believability or credibility in the light of whether any of the special benefits given to a cooperating witness may have induced such witness to testify falsely.
Because that instruction departs so materially — and, I submit, does so to McGuire’s serious detriment — from the clearly-established law of this Circuit (and, it is worth noting, from the law of other Circuits as well), I am constrained to dissent.
For some four decades this Court has plainly demanded that juries must be warned unequivocally about the skepticism with which uncorroborated accomplice testimony must be viewed. Thus nearly a quarter century ago United States v. Birmingham, 447 F.2d 1313, 1317 (10th Cir.1971) put the matter succinctly, citing to decisions of this Court from 1955 and 1969:
The rule is established in this Circuit, however, that the court must instruct the jury that testimony of accomplices must be carefully scrutinized, weighed with great care, and received with caution.
My research has disclosed no departure from that principle, which has been confirmed and reconfirmed on a number of occasions. This Court spoke to the issue at somewhat greater length in United States v. Shepherd, 739 F.2d 510, 512-13 (10th Cir.1984):
This Court has affirmed convictions based upon uncorroborated accomplice testimony. E.g., United States v. Webb, 466 F.2d 190 (10th Cir.1972), cert. denied, 414 U.S. 1012, 94 S.Ct. 378, 38 L.Ed.2d 250 (1973); United States v. Birmingham, 447 F.2d *4641313 (10th Cir.1971). However, we have been sufficiently concerned in such cases that we have found plain error requiring reversal if the trial court failed to give a jury instruction that the testimony of accomplices must be carefully scrutinized, weighed with great care and received with caution. United States v. Hill, 627 F.2d 1052 (10th Cir.1980); United States v. Owens, 460 F.2d 268 (10th Cir.1972).
And both Birmingham and Shepherd have consistently been confirmed to be alive and well and living in this Circuit as recently as last year (United States v. Brown, 995 F.2d 1493, 1503 n. 3 (10th Cir.1993); United States v. Chatman, 994 F.2d 1510, 1515 (10th Cir.1993); United States v. Miller, 987 F.2d 1462, 1465 (10th Cir.1993)).
Nor is the Tenth Circuit alone in this respect. For example, in the Seventh Circuit (where I preside over criminal trials) the instruction prepared by the Committee on Federal Criminal Jury Instructions and consistently delivered to juries delivers the identical message (Instruction 3.22):
You have heard testimony from _ who stated that he was involved in the commission of the alleged crime charged against the defendant. You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care.
In the Fifth Circuit the caveat to the jury prescribed by the District Judges Association is put even more strongly (Instruction 1.15):
The testimony of an alleged accomplice, and the testimony of one who provides evidence against a defendant as an informer for pay or for immunity from punishment or for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness’s testimony has been affected by any of those circumstances, or by the witness’s interest in the outcome of the case, or by prejudice against the defendant, or by the benefits that the witness has received either financially or as a result of being immunized from prosecution. You should keep in mind that such testimony is always to be received with caution and weighed with great care.
You should never convict any defendant upon the unsupported testimony of such a witness unless you believe that testimony beyond a reasonable doubt.
What all of these instructions have in common is an emphasis on the special burden that such uncorroborated accomplice evidence bears, undiluted by any emphasis about the benefits that the criminal justice system may derive from plea bargains. By contrast, the jury in this case was first instructed about the value and legitimacy of accomplice testimony in assisting law enforcement officials (something that really says nothing about the credibility of the accomplice witnesses, which is and should be the jury’s sole concern) before it was given a substantially watered-down version of the strongly cautionary instruction that this Court has properly insisted upon again and again. In this case I believe that the dilution presented by the trial court’s instruction would fail any fair Rule 403-like balancing test, for the message that was given to the jury by the most credible source — the judge — is one in which the potential prejudice to the defendant substantially outweighed the proper cautionary message.
Now I recognize of course that McGuire may well be guilty of the crime with which he was charged, and he máy well deserve an extended prison sentence if properly convicted of that crime. But the strength of our system lies in assuring its protections to those who may be the least deserving among us, not just to those who are most worthy and therefore least need those protections. It must be remembered that as deep-dyed a villain as McGuire is portrayed to be, those testifying against him are admittedly equally deep-dyed — and they had a direct interest in receiving benefits for their having testified against McGuire. Surely the jury that hears their testimony ought to be given a clear and accurate understanding of the standard that applies to such evidence (and without that understanding being tainted by the jury first being told about a basic irrelevancy: the usefulness of such testimony to prosecutors).
*465It is of course true that trial judges are given plenty of room for the exercise of their sound discretion. But I suggest that it represents an abuse of that discretion for any trial judge to depart so dramatically from the roadmap that has been clearly marked out by the uniform decisions in this Circuit — and to do so in an area where that error cannot be characterized as harmless. Accordingly I must respectfully dissent.