United States of America v. Marvin W. Thorne, Appellant, 527 F.2d 840 (D.C. Cir. 1975)

Appellant Marvin W. Thorne and Jerome Fortney were charged in a seven-count indictment with two counts of armed robbery (22 D.C.Code §§ 2901, 3202), two counts of robbery (22 D.C.Code § 2901), two counts of assault with a dangerous weapon (22 D.C.Code § 502), and one count of possession of a prohibited weapon (22 D.C.Code § 3214(a)), all growing out of the May 19, 1971, robbery of a gasoline station and an offduty employee of that station who was sleeping in a nearby automobile. Appellant was tried alone¹  before a jury and was convicted on all counts. The trial court, the Honorable William B. Jones presiding, sentenced appellant to a prison term of eight to twenty-four years on each of the armed robbery counts, three to ten years on each of the assault counts, and one year on the count charging possession of a dangerous weapon. Appellant raises only two claims of any substance in this appeal. First, appellant contends that the trial court erred in refusing to charge the jury with a precautionary instruction relating to 'an informer's testimony' respecting the testimony of Fortney, the government's principal witness, rather than with an instruction relating to the testimony of an accomplice. Secondly, appellant claims that the trial court improperly sentenced him as an adult in violation of the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5010. We find no merit in either of appellant's claims and, accordingly, we affirm his conviction on all counts.

Appellant's argument that the court erred in denying his request for an instruction on informer's testimony²  is premised on the contention that Fortney occupied the dual status of accomplice and informer. We reject this contention. The definition of 'informer' upon which appellant relies³  was not included in the 1966 version of the Criminal Jury Instructions available to the trial judge. Even if that definition had been available, we believe that the trial judge properly exercised his discretion in concluding that Fortney was more properly considered an accomplice than an informer.⁴  Moreover, we believe the comments of the trial judge and the instruction given adequately cautioned the jurors and informed them of Fortney's interest. During Fortney's testimony, the court announced that

the witness Fortney has entered a plea of guilty in this court yesterday and was promised that the Government would move to dismiss the remaining counts of the indictment at the time of sentence on the plea of guilty to armed robbery.

In other words, he plead guilty to armed robbery and at the time of sentence, which isn't yet, the Government will move to dismiss the remaining counts of the indictment.

Tr. 134. It was made clear to the jury that Fortney's promise to testify was one of the conditions demanded in return for dismissal of the remaining counts against him.⁵  Counsel for appellant cross-examined Mr. Fortney concerning his motive for testifying. In addition, the court, sua sponte, then gave the following cautionary instruction:

Ladies and gentlemen, you just heard the testimony of Jerome Fortney. Jerome Fortney in law is known as an accomplice. An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises or encourages another in the commission of a crime regardless of his--that is, the accomplice's--degree of participation.

Accomplices in the commission of a crime are competent witnesses and the Government has the right to use them as a witness. The testimony of an accomplice should be received with caution and scrutinized with care. You should give it such weight as in your judgment it is fairly entitled to receive.

You should consider the motives of an accomplice in testifying and the circumstances under which his testimony is offered. You may convict a person accused of crime upon the uncorroborated testimony of an accomplice only if you believe that the testimony of the accomplice proves the guilt of the defendant beyond a reasonable doubt.⁶ 

Tr. 146--47.

Under the circumstances, we find no reversible error in the decision of the trial judge refusing to instruct the jury concerning informer's testimony.

Appellant's second contention, that the trial judge failed to make the requisite findings that appellant would not benefit from sentencing under the Federal Youth Corrections Act,⁷  18 U.S.C. § 5010, requires no elaborate discussion. The Supreme Court enunciated the standard by which courts are to make this determination in Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974). The Court held that § 5010(d) requires that, before a sentencing judge may incarcerate a youthful offender under an adult sentence, he must make a finding on the record that the offender would not benefit from sentencing under subsections (b) and (c). This finding need not be accompanied by reasons, however, because the purpose of the 'no benefit' finding is designed merely to ensure that the sentencing judge was aware of the Act and that the youth offender before him was eligible for the treatment it provided. Id. at 442--43, 94 S. Ct. 3042.

The requirement of the 'no benefit' finding was designed to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act.

Once it is clear that the sentencing judge has considered the option of the treatment under the Act and rejected it, however, no appellate review is warranted.

Id. at 443, 94 S. Ct. at 3052. The record clearly demonstrates that the trial judge met this standard and properly exercised his discretion to sentence appellant as an adult.⁸  Having made the requisite 'no benefit' finding, the trial judge was under no obligation to justify further his decision not to sentence appellant under the Federal Youth Corrections Act.

For these reasons, we conclude that appellant's claims are without merit and, accordingly, we affirm.

So ordered.