United States v. Trujillo, No. 73-1935.
| Decision Date | 06 June 1974 |
| Docket Number | No. 73-1935. |
| Citation | 497 F.2d 408 |
| Parties | UNITED STATES of America, Appellee, v. Joe TRUJILLO, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jack L. Love, Federal Public Defender, Albuquerque, N. M., for appellant.
Harris L. Hartz, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., with him on the brief), for appellee.
Before HILL, SETH and DOYLE, Circuit Judges.
Joe Trujillo appeals from his conviction by a jury on separate counts of possession of heroin with intent to distribute and distribution of heroin, both in violation of 21 U.S.C. § 841(a) (1). The charges stem from an incident in which the appellant purchased eleven "caps" of heroin with $50.00 he had obtained from an undercover narcotics agent. Following the purchase he delivered eight of the caps to the agent.
At the trial, several relatives and acquaintances of the appellant testified to his extensive history of paint sniffing and alcohol abuse, and to his erratic and unpredictable behavior when subjected to the influence of those substances. The appellant testified that prior to the incident in question he had sniffed half a can of paint and consumed a quantity of wine as well as a Coke containing some unknown drug, and that he was experiencing the effects of that activity throughout the transaction. A psychiatrist testified for the defense that the appellant was probably having difficulty in understanding reality and distinguishing right from wrong as a result of the various substances he had consumed.
The prosecution presented testimony from the agents involved that the appellant had not behaved abnormally, and from a second psychiatrist that the appellant was probably capable of understanding and controlling his conduct at the time of the offense. At the close of the evidence, the court instructed the jury on the defenses of diminished capacity and intoxication.
The sole question we are asked to consider is whether the jury should have also been instructed that it might find the appellant guilty of mere possession in violation of 21 U.S.C. § 844(a) as a lesser included offense. The theory which the appellant advances is that the jury might have perceived his mental state to be such that he could commit the offense of possession, but would be incapable of the offense of distribution or possession with intent to distribute. We are convinced such a distinction cannot be made. Both section 841 (a) and section 844(a) use the terms "knowingly or intentionally" in describing the mental state necessary to commit offenses thereunder. While the specific objectives of the two actions differ, we can develop no gradation from the mental...
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Tenner v. State
...supra at 221-22. Likewise, the jury may be tempted to consider a lesser-included offense as an act of mercy. United States v. Trujillo, 497 F.2d 408, 409 (10th Cir.1974). "The court's role is to prevent the introduction of an appeal to mercy ... while admitting all supportable theories of t......
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United States v. Coppola, No. 75-1001.
...See Fed.R.Crim.P. 31(c), and see Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. Trujillo, 497 F.2d 408 (10th Cir. 1974); United States v. Carroll, 510 F.2d 507 (2d Cir. 1975); United States v. Celestine, 510 F.2d 457 (9th Cir. 1975); 8 J.......
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U.S. v. Chapman, 78-2015
...necessary or appropriate unless justified by the evidence and it is not to be used to subject an element of mercy. United States v. Trujillo, 497 F.2d 408 (10th Cir. 1974). The availability of lesser included offense instructions is further dependent upon the nature of the crime charged cou......
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U.S. v. Burns
...with intent to distribute, is a prototypal "lesser included offense." United States v. Brischetto, supra; see also United States v. Trujillo, 497 F.2d 408 (10th Cir. 1974). Burns and Andrade were arrested while in possession of cocaine, but previous to any distribution. We have herein held ......