Can a Jury Find Me Guilty on a Lesser Charge?
A message to everyone who is now indicted under federal law and thinking about a jury agreeing to find them guilty of a lesser charge than what is now being sought by the prosecution: You should really understand how this all works. Not law school. But the truth about what actually does happen in those federal trial courts.
The quick answer to the question is yes. A federal jury can definitely convict you of a lesser included offense regardless of the more serious charge the government indicted you with. But here's the catch that nobody ever puts correctly: it can save your life or blow your entire defense strategy. It's entirely up to how it's dealt with.
The Legal Framework That Controls Everything
In this case, the applicable rule is Federal Rule of Criminal Procedure 31(c). This rule is titled "Lesser Offense or Attempt" and provides that "a defendant may be found guilty of an offense necessarily included in the offense charged." It sounds simple. It's not.
It took the Supreme Court several decades to quarrel about what "necessarily included" means. Different circuit courts were following different tests. Some assessed the relationship between the crimes. Others assessed the facts proved during trials. The whole system was a mess until the case of Schmuck v. United States clarified things in 1989.
Wayne Schmuck was a used car salesman who was caught rolling back odometers. He was charged with mail fraud because the title paperwork involved the mailing of the documents. But his lawyer asked the jury to be able to find him guilty of the odometer fraud, which was a much lighter charge. Of course, this all makes perfect sense. The jury could find that he committed the odometer fraud, but didn't necessarily find him guilty of the mail fraud scheme.
The trial judge disagreed. The appellate courts struggled with it. But the Supreme Court established what we now consider to be the "elements test." "One offense is necessarily included in another only if the elements of the lesser offense are a subset of the elements of the greater offense." You look at the statutes, the "elements" defined by statute, not by the specifics of the case.
Schmuck lost. Odometer tampering must prove you knew you were altering an odometer. Mail fraud must prove scheme to defraud and use of the mails. Different offenses. The elements of the latter are not a subset of the former. Thus, no lesser included offense instruction.
This has more significance than you would think. What the elements test means is that defense counsel can't just point to other similar behavior and recommend a lenient alternative to the jury. The legal elements have to match exactly.
When You Actually Get the Instruction
OK so the elements test is part one. The second part comes from a case called Keeble v. USA in 1973. This is fascinating for defendants.
Harry Keeble had a fight with his brother-in-law on an Indian reservation in South Dakota. Beat him up badly. Later, the same brother-in-law died of exposure to cold. Keeble was charged with assault with intent to inflict great bodily injury, under the Major Crimes Act.
A trial judge denied the request of Keeble's attorney to charge the jury on simple assault, as simple assault was a much less serious crime. Keeble was convicted of the more serious crime because simple assault was not included in the Major Crimes Act as a federal crime.
The Supreme Court reversed the conviction in this case. In the process, they used the words that defense attorneys have used ever since:
"A defendant is entitled to a jury instruction on a lesser included offense when the evidence presents a reasonable doubt concerning his guilt of the felony and a reasonable doubt concerning his guilt of the lesser offense."
Read that again. Entitled. Not "may request" or "at the discretion of the judges." Entitled.
This is why this means so much. The Court lays out why in a way that should chill prosecutors. They say juries don't necessarily follow theory. Juries, if the defendant is obviously guilty of something but there's a question about the element of the greater offense, usually choose to resolve the doubt in favor of convicting. They don't want a defendant getting off free if it's clear something's amiss.
This way, a compromise is reached on the jury's decision. They find the defendant guilty on the major crime because that is the only choice that is open to them, although they were not sure about every fact on that count. The jury would not be allowed to reach that decision if a lesser included offense instruction were not adopted.
The Keeble and Schmuck two-part test has now supplanted every other federal lesser included offense issue. First – Are the elements of the lesser offense a subset of the elements of the offense charged? Second – Could a rational jury convict of the lesser offense and acquit of the greater based on the evidence?
Both must be satisfied. If the factors don't align - no jury instruction. If the evidence is overwhelming on the superior charge and there is no logical basis for the lesser - no jury instruction.
The Capital Case Exception That Changed Everything
Beck v. Alabama was decided by the Supreme Court in 1980, establishing a constitutional mandate for lesser included offense instructions in capital cases.
Gilbert Beck was indicted for robbery with intentional killing in Alabama. Gilbert Beck maintained at trial that he was part of the robbery but was neither responsible for nor contemplating the killing. His attorney asked for an instruction concerning the jury regarding the law of felony murder, which was a non-capital offense in Alabama. The trial court denied the request because in Alabama, the law at the time prohibited instructions for lesser included offenses in capital cases.
The jury found them guilty. A judge sentenced them to death.
The Supreme Court overturned this decision. And it's tough on prosecutors. The high court held that putting a jury in this position violates constitutional guarantees against an unjust risk of a wrongful conviction. If a defendant may be guilty of something bad but isn't clear which act constitutes capital murder, jurors will hang a capital conviction in order to avoid putting a dangerous defendant on the street.
This is the "third option" problem. Without the lesser included option on the table, the jury is left with nothing but all or nothing. Guilty of capital murder or not guilty of anything. And in this case, not guilty of anything is not an option that juries feel comfortable with.
Due process mandates that the jury be allowed the full benefit of "reasonable doubt" standards. This cannot be possible with the present options that put the jury into false dilemmas.
Issues of this nature apply only in capital cases as a constitutional matter under Beck. However, the rationale taints all issues of lesser included offenses. Courts are aware of the potential for exactly what Beck spoke of being created by failing to issue instructions on lesser included offenses – jurors convicting of greater crimes because they do not want to acquit a defendant who they recognize as guilty of something.
The Strategic Gamble You Didn't Know You Were Making
This is where most of the defendants get it completely wrong. You could be thinking that you would want this option available to you. It gives the jury more choices. There's a better chance of staying away from the biggest sentence. Right?
Not necessarily.
There's a defense strategy known as the "all or nothing" defense that on purpose does not include the lesser included charges. Also, the courts have upheld that even if this strategy fails, it is still a valid defense strategy.
The logic goes like this: You're arrested for armed robbery. The government's evidence is largely identification testimony. But your defense is simple: it wasn't you. Mistaken identity is the defense in such cases, not the claim of innocent bystanders who happen to have the same hair or same skin pigmentation.
But again, if the jury is charged with the lower offense of theft—robbery minus the element involving the weapon—you've essentially given them an "escape clause" from your real defense. Now they can say to themselves: "Okay, maybe they didn't use the gun for the robbery, but he was for sure there. We can convict for the theft."
However, if the only choice is armed robbery or a jury trial, then the jury must actually determine if the government proved you were there. The case evidence must be strong enough. The doubt you have raised about identification applies to the whole case, not parts.
That's a risk. Obviously. If the jury would have convicted on the lesser charge, they might convict on the greater charge instead of acquitting. You've raised the stakes for yourself.
However, "all or nothing" can be effective. With your whole defense being complete innocence - as opposed to "I did something but not the worst thing" - it might be wise to have the jurors think about guilt versus innocence, rather than the degree of guilt.
"This is an assessment Todd Spodek makes in every federal case. Is it a defense of innocence, or is it a defense of degree of culpability? It all hinges on that answer."
How Prosecutors Think About This
It is important to consider the prosecution's point of view. Prosecutors "don't all think alike about lesser includeds," and this is contingent on their overall strength of case.
If prosecutors have a weak case on the top charge, then they usually REQUEST the jury instruction on the lesser included offense. It does seem counterintuitive, but consider this. If prosecutors figure the jury might acquit them because they can't prove an element of the greater charge, then giving them the opportunity for a lesser verdict increases the chances of them convicting on SOMETHING.
A partial victory—conviction on a lesser offense—is better than a total loss. Prosecutors disdain acquittals. They impact conviction rates. They impact careers. A conviction on a lesser included offense allows prosecutors to claim success despite being bested on the most serious charge.
Prosecutors, who know they have a case, will at times disagree with a lesser included instruction. All-or-nothing applies - but to their favor. Nor do they want to make a compromise decision easy for a jury to make.
And so, it results in strange bedfellows. Sometimes both prosecution and defense are opposed to the lesser included jury instruction—and for reasons diametrically opposed to each other. The defense holds all its client innocent. The prosecution holds all its client guilty. Neither wants the middle path.
At other times, there may be a desire for the instruction by both sides, perhaps in order for the defense to show willingness to compromise, while the prosecution covers itself.
It is finally up to the judge. However, a judge has to abide by the law. When the two Keeble/Schmuck test requirements are met, the jury hears the instruction. What the litigants want is not more important than what the law says.
Double Jeopardy and What Happens After
Additionally, if the jury finds you guilty of a "lesser included" offense, then an important thing happens regarding the "greater" charge. This is established through the case Green v. United States and the "implied acquittal" rule.
Everett Green was charged with arson and first degree murder. The jury found him guilty of arson and second degree murder, second degree murder being the lesser included offense of first degree murder. There was no verdict on first degree murder.
The prosecution wished to retry him for first degree murder, claiming that the jury never did in fact acquit on that charge. The Supreme Court disagreed. Since he was convicted of second degree murder, it necessarily follows that the jury found him not guilty of first degree murder. If not, then he would have been convicted of the latter.
This is huge protection. Once you've been convicted of the lesser charge, retrial on the greater charge is barred. Double jeopardy kicks in. You've been implicitly acquitted.
Be careful, however, in cases like Blueford v. Arkansas from 2012. If a jury says during their deliberations that they are indeed deadlocked on the larger charge but unanimous on the other charge, and a mistrial is declared, that's not a final enough determination to amount to an acquittal. The government can retry you on all charges.
The pivotal issue here is the issue of finality. A jury trial verdict, even one that is mute on the larger indictment, has finality. However, a report in the midst of the trial, preliminary to the entry of any verdict, does not have the same finality.
The Instruction Language Matters
Trial judges give a lesser included offense instruction in some cases. When a judge does give a lesser included offense instruction, the wording of the instruction can lead to different results. The Ninth Circuit model instruction states:
"The crime of [charged offense] is broader than the crime of [lesser offense]. If (1) any or all of you are not convinced beyond a reasonable doubt that the defendant is guilty of the crime of [charged offense]; and (2) all of you are convinced beyond a reasonable doubt that the defendant is guilty of the [lesser crime]."
Notice the "any" or "all" in brackets in the first part. In fact, a right to make this choice exists for the defendant. When should the jury be allowed to consider the lesser charge: if ALL jurors have doubt about the greater charge, or if ANY jurors have doubt?
This election makes a difference. Think about a jury with eleven members willing to convict on the greater charge but one holdout with reservations. According to the "all" rule, there must be a unanimous doubt about the greater charge before the jury can consider the lesser charge. According to the "any" rule, it is sufficient that one member of the jury have reservations in order to consider the lesser charge.
Such an attorney can utilize this subtlety. In a case where the objective is to create a doubt about everything, the "any" form would be more appropriate. In a case where defense attorneys believe a majority of jurors have a doubt, the "all" form would be more appropriate.
Actual Examples of How This Works in Practice
Conspiracy involving federal distribution of narcotics. Conspiracy to distribute 500g+ of cocaine is charged by the government and requires a minimum mandatory sentencing requirement. However, the evidence reveals your client's participation in the conspiracy; yet the evidence is not sufficient to establish attribution regarding the quantity. The defense requests the jury be instructed on the conspiracy to distribute a smaller quantity that does not have a mandatory sentencing requirement. The elements are in line: the smaller is a subset of the larger. The evidence is sufficient to make the rational conclusion regarding the smaller quantity. The jury is instructed and they convict on the smaller quantity; the client escapes the mandatory sentencing provision.
Federal bank robbery. The federal crime of armed bank robbery is prosecuted by the government through 18 U.S.C. 2113(d). Defense: client robbed the bank but does not agree with the dangerous weapon requirement—perhaps it was a toy gun, perhaps client had his hands in his pockets but no weapon. Request defense counsel be instructed on the crime of simple bank robbery, 18 U.S.C. 2113(a). The elements compare. Supporting evidence exists for the dispute of the weapon. An instruction is given.
Federal assault of others. Government charges assault with intent to commit murder under 18 U.S.C. § 113(a)(1). Client admits assault but not killing intent. Requested defense jury instruction on assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). Elements may or may not fit depending on how charged statutes are broken down. Difficulty in analysis of whether the 'lesser' is in fact a subset.
Securities fraud. Charges: wire fraud, securities fraud. Defense claims lack of intent to fraud, only aggressive sales practices. Does NOT ask for lesser included because defense is complete innocence, not partial guilt. All-or-nothing strategy.
Early Warning Signs That Your Case May Involve This Issue
How do you know if lesser included offenses are relevant to your case? The following are indicators:
"Armed," "aggravated," "with intent to," "resulting in death," "involving a dangerous weapon" – these words all refer to elements that could be contested as opposed to the conduct. It makes all the difference if you can contest the aggravating circumstance without contesting the underlying offense.
Your defense is "I did the act, but not THAT." When your argument is that you were there but lacked the necessary intent, that you were involved but to a lesser extent, that you committed the offense, but not the enhanced offense, the lesser includeds are the roadmap to a just verdict.
The verdict is in question. There's definite proof of some features, but not enough for others. That's when juries typically reach a verdict. And it's at this point when you want the verdict to be a formal option and not just the jury's conviction of the overall charge.
The amount of drugs, however, is in dispute. In federal drug prosecutions, quantity has consequences for so-called "mandatory minimums." When a government quantity charge turns on cooperating witnesses and disputed evidence, "lesser quantity" instructions may be the difference between a sentence in years and one in decades.
Mistakes That Undermine This Defense
Three disastrous mistakes defendants make in lesser included offenses:
Mistake One: Assuming your lawyer knows. Not all defense attorneys are familiar with federal lesser included offenses in depth. Some will automatically request every possible jury instruction without thought, while others will simply ignore it altogether. Do you have an attorney who considers this in your case, in addition to other matters, not in passing but as part of their strategic plan?
Mistake Two: Asking for the lesser charge if you are claiming innocence. If you are saying you didn't do it, wrong person, false evidence, government wrongdoing, asking for the lesser included jury instruction damages the strength of your claim. "Why are they presenting this to us if they are saying they are innocent?" This communicates you don't really believe in your claim.
Mistake Three: Putting off until trial the consideration of these issues. The analysis of the elements must be done during discovery. You must be aware of precisely what issues of instruction you will demand and what issues of instruction you will oppose prior to trial. The judge will ask for suggested jury instructions prior to trial. If you fail to analyze these issues, you've made the choice by default.
The Way Forward
If you're facing federal charges and are trying to determine the viability of claiming lesser included offenses, you should be represented by an attorney who understands the law and the strategy. The rule of law is very specific on the issue at question. Rule 31(c) specifies that conviction for necessarily included offenses is allowed.
However, the strategy itself is not at all clear. It all depends on what exactly your defense is. It also depends on the strength of the government's evidence as far as each element of your defense is concerned. It also depends on whether or not you are asserting innocence or challenging the level of culpability.
The failure in this situation can lead to disaster. When you should go all-or-nothing, but you ask for a lesser included, you give the jury a way out, which leads to a conviction. When you fail to ask, and you should, a conviction still takes place on the greater crime because a not guilty verdict simply feels wrong.
Examples from Todd Spodek include federal cases in which a "lesser included offense" meant imprisonment versus freedom. Cases in which a "practical understanding" of jury thought processes instead of "ideal" jury thought processes made all the difference.
The federal system is merciless. This 93% conviction rate is due to the fact that the prosecution won't bring a case that they think they can't win. By the time you get charged with the crime, the government already believes they can get you. It's a matter of looking for the tactical opportunities that exist, despite the fact that the prosecution is going to get a conviction, and these include the option to plead to a lesser included offense.
Call Spodek Law Group at 212-300-
The jury will be told what the law is. What that means, exactly, especially regarding the possibility of a "lesser offense," could mean the difference between years or decades for you. Whether you'll return home to your loved ones or have to live without them. This isn't theoretical. This is your life. The way you address this question will begin to write the next chapter in your life. Take the time to ensure you know what your options are before you and the jury retire to deliberate.
