U.S. v. Brischetto, 76-1081
| Decision Date | 13 July 1976 |
| Docket Number | No. 76-1081,76-1081 |
| Citation | 538 F.2d 208 |
| Parties | UNITED STATES of America, Appellee, v. Vince Joseph BRISCHETTO, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert D. Blitz, Reizman & Blitz, Clayton, Mo., for appellant.
Donald J. Stohr (former U. S. Atty.), Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Barry A. Short, U. S. Atty., St. Louis, Mo., on brief.
Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and HENLEY, Circuit Judges.
VAN OOSTERHOUT, Senior Circuit Judge.
Defendant Vince Joseph Brischetto has taken a timely appeal from his conviction by a jury on an indictment charging him with possession of 75 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the resulting sentence of five years to be followed by a mandatory minimum two year parole.
The sole issue presented by this appeal is the denial of defendant's requested instruction covering the included offense of possession of marijuana, in violation of 21 U.S.C. § 844. Such offense carries a substantially lower penalty than the offense charged in the indictment. For the reasons hereinafter stated, we hold the court erred in refusing to give the included offense instruction and we reverse the conviction.
The law with respect to submission of included offense instructions is well-settled. In Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973), the Supreme Court held:
Although the lesser included offense doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged, it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. The Federal Rules of Criminal Procedure deal with lesser included offenses, see Rule 31(c), and the defendant's right to such an instruction has been recognized in numerous decisions of this Court. (Citations omitted.)
In United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974), this court held:
A defendant is entitled to an instruction on a lesser included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense ; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i. e., a charge may be demanded by either the prosecution or defense. (Citations omitted.)
In our present case there is no question but that elements (1), (2) and (5) set forth in Thompson were met. The Government contends that the trial court properly denied the requested included offense instruction on the grounds that items (3) and (4) of the Thompson standards have not been met.
An essential element of the offense covered by the indictment is proof of intent to distribute. Such proof is not required for a conviction under ...
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