Jury Instructions - Lesser Included Offenses

Schmuck v. United States, 489 U.S. 705 (1989)

The Supreme Court affirmed the Seventh Circuit en banc decision, holding that a defendant is entitled to a lesser-included offense instruction only if the “elements test” is satisfied. That is, a defendant may only be found guilty of a lesser-included offense if that offense is necessarily included in the offense which is charged in the indictment. It is not proper to examine the “inherent relationship” between the offenses in light of the specific facts of the case. Rather, the Court need only examine the elements of the offense to determine whether one offense is a lesser-included offense of another.

Hopkins v. Reeves, 118 S.Ct. 1895 (1998)

In a death penalty case, the trial court is not required to instruct the jury on lesser included offenses that are not, as a matter of state law, lesser included offenses of the charged offense. In Nebraska, for example, manslaughter is not a lesser-included offense of felony murder. Therefore, in a felony murder prosecution in which the state is seeking the death penalty, it is not required that the jury be instructed on the law of manslaughter.

Beck v. Alabama, 447 U.S. 625 (1980)

A death sentence cannot constitutionally be imposed unless the jury is permitted to consider a verdict of guilt as to a lesser-included non-capital offense, provided that the evidence would support such a verdict.

United States v. LaPointe, 690 F.3d 434 (6th Cir. 2012)

Defendant was charged with conspiracy to possess with intent to distribute oxycodone. He requested an instruction on the lesser included offense of conspiracy to possess oxycodone (a conspiracy). The trial court erred in failing to instruct the jury as requested. First, the court held that the fact that the indictment alleged that the defendants conspired to distribute and to possess with intent to distribute did not mean that a conspiracy to possess was no a lesser included offense because it is not a lesser offense of the conspiracy to distribute. (An indictment frequently charges in the conjunctive, but a jury can convict of either of the methods). Second, the fact that all conspirators did not share the limited conspiracy to simply possess the drugs did no mean that the defendant did not have that limited agreement with others.

United States v. Pillado, 656 F.3d 754 (7th Cir. 2011)

The defendant was enlisted by undercover agents to help unload a kilogram of marijuana from a truck. The defendant was at first reluctant, but later agreed to help. He was prosecuted for possession with intent to distribute the marijuana. He requested an instruction on simple possession. The Seventh Circuit held that the trial court erred in failing to instruct the jury on simple possession. Though he obviously did not possess the marijuana for personal use, that is not the only type of simple possession that exists. The government failed to prove that the defendant’s only possession could have been for the purpose of distributing it. The defendant may have simply abandoned the marijuana, in which case he would not have possessed it with the intent to distribute it.

United States v. Boidi, 568 F.3d 24 (1st Cir. 2009)

A conspiracy to possess drugs is a lesser included offense of a conspiracy to possess with intent to distribute. The government acknowledged that possession is a lesser included offense of possession with intent to distribute; but argued that this logic does not apply to conspiracy offenses. The First Circuit rejected this argument, but held that in order to insist on such an instruction, the defendant must show that that, on the evience presented, it would be rational for the jury to convict only on the lesser included offense and not the greater one. Failure to instruct the jury on the lesser included offense in this case was error.

United States v. Gentry, 555 F.3d 659 (8th Cir. 2009)

The defendant was entitled to a lesser included offense instruction in this case involving possession of methamphetamine with intent to distribute. The evidence would have supported the conclusion that she possessed the drugs without the intent to distribute and therefore a simple possession instruction was appropriate.

Taylor v. Workman, 554 F.3d 879 (10th Cir. 2009)

The state trial court erred in failing to accurately define the elements of a lesser included offense in this murder case, thus depriving the defendant of the ability to avoid a death sentence.

United States v. Hernandez, 476 F.3d 791 (9th Cir. 2007)

The trial court erred in refusing to instruct the jury in this possession with intent to distribute methamphetamine case on the lesser offense of simple possession. The quantity involved was not sufficient to preclude the possibility that it was possessed for personal consumption. The burden is not on the defendant to prove that it was for personal consumption; the burden is on the government to prove that the quantity could not have been for personal consumption. The amount in this case was somewhere between 50 and 100 doses (115 grams), valued in a range of $2,000 to $4,000.

United States v. Trujillo, 390 F.3d 1267 (10th Cir. 2004)

A defendant is not prohibited from having the jury instructed on a lesser included offense just because he denies participation in the offense at all. Consistent with the Supreme Court decision in Mathews v. United States, 485 U.S. 58 (1988) (defendant may inconsistently argue “I didn’t do it; and if I did, I was entrapped”) a defendant can argue that he had no involvement in a drug deal, but if he did, it was personal use, not trafficking.

United States v. McCullough, 348 F.3d 620 (7th Cir. 2003)

Defendant was charged with willfully selling firearms without recording the name, age, and residence of the buyer. 18 U.S.C. § 922(b)(5). At trial, he requested a jury instruction on the lesser record keeping offense. 18 U.S.C. § 922(m). Because it is impossible to violate § 922(b)(5) without also violating § 922(m), the trial court should have given the lesser included instruction. The fact that it is possible to commit the record keeping violation without committing the greater offense (for example, by making some other false entry that does not relate to the buyer’s name, age or residence) does not mean that the record keeping offense is not a lesser included offense. Moreover, the lesser offense requires proof that the defendant acted knowingly, while the greater offense requires proof that the defendant acted willfully. This does not preclude the record keeping offense from being characterized as a lesser offense of the false recording offense. The failure to instruct the jury on the lesser offense was reversible error.

United States v. Mendez, 117 F.3d 480 (11th Cir. 1997)

The offense of possessing stolen mail (18 U.S.C. § 1708) is a lesser included offense of forcibly taking mail from a mail carrier (18 U.S.C. § 2114), when the two crimes are committed contemporaneously.

United States v. Gonzalez, 122 F.3d 1383 (11th Cir. 1997)

The offense of obstruction of a federal officer (18 U.S.C. § 1501) is a lesser included offense of forcibly assaulting, resisting, impeding or interfering with a federal official (18 U.S.C. § 111). The failure to instruct the jury on the lesser offense resulted in reversing the conviction.

United States v. Benally, 146 F.3d 1232 (10th Cir. 1998)

The trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter, as well as the defense of self-defense.

United States v. Estrada-Fernandez, 150 F.3d 491 (5th Cir. 1998)

The defendant was charged with assault with a dangerous weapon pursuant to 18 U.S.C. § 113(a)(3). He requested a charge on the lesser included offense of simple assault, pursuant to § 113(a)(5). The trial court erred in failing to charge the jury as requested. Though the defendant testified that he was not involved in the altercation, “at all,” the Fifth Circuit held that the jury was entitled to believe none, all, or any part of his testimony. “Even if the defendant presents a totally exculpatory defense, the lesser-included offense instruction should be given if the prosecution’s evidence provides a rational basis for the jury’s finding the defendant guilty of a lesser offense.”

United States v. Barrett, 870 F.2d 953 (3rd Cir. 1989)

The trial judge instructed the jury that they could return a verdict of guilty, guilty of a lesser-included offense, or not guilty. The verdict form, however, only provided for a verdict of guilty or not guilty. Thus, when the jury returned a verdict of guilty, it was not possible to determine whether they were convicting him of the charged offense or the lesser-included offense. This requires reversal of the conviction.

Vujosevic v. Rafferty, 844 F.2d 1023 (3rd Cir. 1988)

The defendant admitted to having engaged in aggravated assault of the victim, but claimed that the co-defendant was responsible for the murder. He was entitled to a lesser-included charge on aggravated assault. Failing to do so constituted reversible error.

United States v. Baker, 985 F.2d 1248 (4th Cir. 1993)

Defendant was charged with conspiring to possess with intent to distribute cocaine. There was a plausible theory that he intended to purchase the cocaine in order to consume it. It was reversible error to fail to instruct the jury on the lesser offense of conspiring to possess cocaine.

United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996)

The trial court erred in declining to instruct the jury on the lesser-included offense of negligent violations of the Clean Water Act. The defendant was charged with a knowing violation of the Act.

United States v. Lucien, 61 F.3d 366 (5th Cir. 1995)

The police searched the defendant’s house and discovered sixteen grams of cocaine base, foil wrappings, $1,200 in currency, and three guns. The defendant was charged with possession with intent to distribute. He was denied a request for a lesser-included instruction on possession of a controlled substance under 21 U.S.C. §844(a). The trial court erred in this regard. The packaging was consistent with the defendant’s purchasing several packages of the cocaine base; the money was not necessarily indicative of an intent to distribute cocaine and the guns are not inconsistent with simple possession. The error also required reversal of the conviction for possessing a firearm in connection with the offense set forth in the indictment – because the conviction for the offense set forth in the indictment was reversed.

United States v. Deisch, 20 F.3d 139 (5th Cir. 1994)

The defendant was charged with violating 21 U.S.C. §841, possessing with intent to distribute cocaine base. The trial court instructed the jury on what the government urged was a lesser-included offense, possession of cocaine base under the third sentence of 21 U.S.C. §844. The Fifth Circuit holds that the §844 offense is not a lesser-included offense of the §841 offense. This is because §841 outlaws the possession of any controlled substance, and then sets forth a scheme of punishments, depending on the nature of the contraband that is possessed. §844, on the other hand, expressly outlaws the possession of cocaine base in the third sentence. Thus, §844 contains an element lacking in §841: the controlled substance must be cocaine base.

United States v. Browner, 937 F.2d 165 (5th Cir. 1991)

Assault with a deadly weapon is not a lesser-included offense of voluntary manslaughter under the Schmuck standard. There must be a deadly weapon for the assault offense, but not for the voluntary manslaughter offense. Therefore, over the defendant’s objection, it was improper to charge the jury on the law of assault with a deadly weapon.

Cordova v. Lynaugh, 838 F.2d 764 (5th Cir. 1988)

The evidence in the defendant’s death penalty trial suggested that four men attacked a couple in a parked car, killed and robbed the man and raped his female companion. The evidence would have supported a finding that the petitioner did not have the intent to rob the man thus rendering him not guilty of the capital offense but only of the rape. This would not have made him eligible for the death penalty. The trial court erred in failing to instruct the jury on the lesser-included offense.

United States v. Sitton, 968 F.2d 947 (9th Cir. 1992)

The police seized a large quantity of a mixture containing methamphetamine from a storage facility. The defendants were charged with possession with intent to distribute. The defendant claimed that this was the waste from a prior manufacture of meth and that this was going to be discarded, not distributed. The government’s chemist could not state how much methamphetamine was in the mixture and acknowledged that it could have been waste, based on the acetone content. The trial court erred in not instructing the jury on the law of simple possession.

United States v. Spencer, 905 F.2d 1260 (9th Cir. 1990)

The defendant was charged with taking property under 18 U.S.C. §661. The evidence did not support this charge, and the government requested an instruction on the “lesser included offense” of receiving stolen property, 18 U.S.C. §662. The trial judge agreed that the evidence was insufficient for a conviction under §661 and gave an instruction on the lesser-included offense. The jury returned a verdict of guilty on the lesser-included offense. However, a §662 offense is not a lesser-included offense of a §661 offense. Having found insufficient evidence under §661, the court should have entered a judgment of acquittal and dismissed the indictment.

Vickers v. Ricketts, 798 F.2d 369 (9th Cir. 1986)

The defendant offered evidence of a brain disorder which may well have reduced his culpability in this murder trial with respect to the element of premeditation. It was error for the state trial court to refuse to give the lesser-included offense instruction.

Wiggerfall v. Jones, 918 F.2d 1544 (11th Cir. 1990)

The state trial court violated the defendant’s due process rights by failing to instruct the jury on a lesser non-capital offense. The defendant was tried under Alabama’s then-existing death penalty statute, which, in essence, required that if a defendant was indicted under this section, the jury had only two options: guilty with the sentence being death and innocence. The jury could not recommend life, and could not find the defendant guilty of a lesser-included offense.

United States v. Gibbs, 904 F.2d 52 (D.C.Cir. 1990)

Though the evidence was sufficient to convict the defendants of possession with intent to distribute crack cocaine, a jury could also have found the defendants guilty only of simple possession. Therefore, it was error to fail to give the lesser-included offense instruction to the jury.