United States First Circuit

Conviction and sentence for drug conspiracy and other crimes is vacated and remanded where: 1) the district court failed to give a requested lesser included offense instruction that the jury could rationally have convicted defendant of, instead of an instruction and subsequent conviction for a greater crime where the facts did not necessarily compel the jury to find that the suppliers and defendant were conspiring that defendant should possess the drugs with intent to distribute; and 2) the reversal of the drug conspiracy conviction brings down defendant's conviction for use of a communication facility to facilitate a drug crime as the communications facility charge was tied to the conspiracy count.

Appellate Information

• Decided 06/03/2009
• Published 06/03/2009

Judges

• BOUDIN, Circuit Judge., Before BOUDIN and LIPEZ, Circuit Judges, and SINGAL, District Judge.

Court

• United States First Circuit

Counsel

• For Appellant:
  
• Robert L. Sheketoff with whom David R. Yannetti was on brief for appellant.


• For Appellees:
  
• Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.