United States of America v. John Richard Varner

* 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN RICHARD VARNER,
Defendant - Appellant.
No. 10-50071
D.C. No. 5:07-cr-00028-VAP-2
MEMORANDUM*
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. ***
FILED
MAR 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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