          United States Court of Appeals
                     For the First Circuit


No. 14-1817

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         ABDULLAHI NUR,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

       [Hon. George Z. Singal, Senior U.S. District Judge]


                             Before

                 Thompson, Kayatta, and Barron,
                         Circuit Judges.


     Robert L. Sheketoff for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.


                         August 27, 2015
            KAYATTA,   Circuit    Judge.     The   United     States   charged

Abdullahi Nur with possession of crack with intent to distribute,

21 U.S.C. § 841(a)(1).          At the conclusion of his trial, Nur's

counsel asked the district court to instruct the jury that, if it

did not find Nur guilty of intent to distribute it could still

convict Nur of the lesser-included offense of simple possession as

long as it found beyond a reasonable doubt that he was guilty of

that offense.    After the district court declined the request, the

jury convicted Nur of the charged offense.              We now vacate that

conviction,    holding   that    Nur   was   entitled    to   the   requested

instruction.

                                       I.

            On October 25, 2011, at 2:00 am, two police officers

pulled over Nur for erratic driving.           Nur fled into the woods,

where the officers apprehended him after he tripped and fell into

a creek.    Nur admitted that he had been drinking that evening.            A

third officer testified that, during a search of Nur's person at

the scene, he found three individually-wrapped bags in Nur's

sweatshirt pocket. Split amongst the three bags were approximately

seven grams of crack cocaine.1

            One of the officers who apprehended Nur took him back to

the station.    That officer testified that Nur asked him during the




     1   7.27 grams.
                                   - 2 -
ride whether the police would help him join the Army if he provided

them with valuable information about drugs.         The officer testified

that he told Nur that they would speak about it back at the station,

after Nur was advised of his Miranda rights.            Once at the station,

the    two   officers   who   had   apprehended   Nur    interrogated   him.2

According to the officers' trial testimony, Nur confessed to facts

that, in brief, made clear that he had been on his way to sell the

crack found in his possession.         Nur also said that he had enough

money to make bail back at a hotel room in Scarborough.

             After concluding the interview, the officers searched

Nur's hotel room with the consent of the room's other resident,

Nur's girlfriend.        They discovered seventeen hundred dollars,

separated into hundred dollar increments and wrapped in an elastic.

In his confession at the station, Nur had said that the money was

his.

             At trial, Nur proved to be more than a handful, even for

the very skilled trial judge assigned to the case.            Nur spoke out

of turn multiple times, interrupting his own attorney and the




       2
       Nur's station-house admissions were unrecorded even though
there were two rooms equipped with recording devices in the
station. One of those rooms contained a breathalyzer, and one of
the officers said that he did not "bring [Nur] [to that room]
because [he] knew [he'd] be going down there shortly to administer
a breath test [for Nur], and with [Nur's] breath [he] didn't
want . . . it to affect the ambient air." The other room required
a combination to enter, and the officer "either didn't have [the]
code or . . . didn't know it."
                                     - 3 -
judge. For reasons that are unclear on the record, the proceedings

ended in a mistrial.     At the retrial, Nur opted to proceed pro se,

with standby counsel sitting in attendance.           Nur fumbled through

cross examinations of the government's witnesses and introduced no

substantive evidence.     In closing, Nur argued that the government

had not proven any part of its case beyond a reasonable doubt,

contending that all the officers lied.             He argued both that he

"did not possess drugs" and that he "did not intend to distribute

drugs."   Nur thereupon refused to yield after exhausting his time

for closing arguments.       After issuing carefully calibrated and

repeated warnings, the district court held Nur in contempt and had

him removed from the courtroom.            The district court thereupon

appointed Nur's standby counsel as "full counsel," "in charge" of

Nur's defense.

           Prior to the closing arguments that led to Nur's removal

and the appointment of counsel on his behalf, the district court

had   conducted   a   charging   conference   to    review   proposed   jury

instructions.     During that charging conference, Nur raised no

relevant objections to the proposed instructions.              After Nur's

removal, the district court gave those instructions, and then asked

if there were any objections or proposed additions.          The following

colloquy ensued:

           Standby counsel: Your Honor, I am in a very
           difficult position here. I have not discussed
           this issue with my client for reasons that I

                                   - 4 -
           will not disclose to the Court at this point
           in time. But in my view the evidence in this
           case supports a lesser-included instruction
           for possession of cocaine base.

           AUSA: To the extent that it matters, [at] the
           last trial the defendant did not want that.

           Standby counsel: I understand that. But I --
           I have no authority from him, I have no
           permission from him to request this, but in my
           view as now active counsel, the evidence
           supports that.

           The Court:     Mr. Nur had these proposed
           instructions and approved them earlier.

           Standby counsel:   He did.

           The Court: Taking that into account, I don't
           think it's appropriate.

           On appeal, Nur argues that the district court's failure

to give the instruction allowing the jury to convict him for simple

possession denied him a fair trial and constituted reversible

error.   In response, the government makes no claim that Nur failed

to preserve his objection.     The government also does not argue

that Nur's counsel lacked authority to request the instruction on

his behalf.   Nor does the government argue that the request was

tendered too late.    Instead, the government efficiently argues

only that Nur was not entitled to the requested instruction because

he categorically denied all elements of the charge against him

and, in any event, the evidence as the government views it made it

irrational to acquit him of the charged offense, yet convict him

of the lesser offense.

                                - 5 -
                                      II.

              Our circuit's precedent dictates (and both parties here

agree) that we review de novo a district court's decision whether

to grant a properly raised request to instruct the jury on a

lesser-included offense.           United States v. Chiaradio, 684 F.3d

265, 280 (1st Cir. 2012).            In evaluating "a district court's

decision not to give a requested instruction[,] . . . we examine

the evidence on the record and draw those inferences as can

reasonably be drawn therefrom, determining whether the proof,

taken in the light most favorable to the defense can plausibly

support the theory of the defense."           United States v. Baird, 712

F.3d 623, 627 (1st Cir. 2013) (quotation marks, alterations and

citation omitted).         We do not weigh the evidence, but merely

inquire into its sufficiency.         Id.

                                      III.

              Federal Rule of Criminal Procedure 31 provides that a

"defendant may be found guilty of . . . an offense necessarily

included in the offense charged." Fed. R. Crim. P. 31(c)(1). Such

an offense is known as a "lesser included offense."                Chiaradio,

684 F.3d at 280.     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."     Keeble v. United States, 412 U.S. 205, 208 (1973); see

also Kelly v. United States, 370 F.2d 227, 229 (D.C. Cir. 1966).

                                     - 6 -
While the rule has its origins as an aid to the prosecution, it

has long been settled that "it may also be availed of by the

defense."     United States v. Markis, 352 F.2d 860, 866 (2d Cir.

1965), vacated, 387 U.S. 425 (1967).           See generally Keeble, 412

U.S. at 208; Sansone v. United States, 380 U.S. 343, 349 (1965);

Berra v. United States, 351 U.S. 131, 134 (1956), superseded on

other grounds by statute, 26 U.S.C. §§ 7201, 7203, 7207, as

recognized in Sansone, 380 U.S. 343; Stevenson v. United States,

162 U.S. 313, 322–23 (1896).

             Instructions on lesser-included offenses preserve the

jury's fact-finding role, see, e.g., United States v. Arnt, 474

F.3d 1159, 1165 (9th Cir. 2007) ("The integrity of the jury's fact-

finding role undergirds our requirement that a lesser-included

offense     instruction   be   given   [at    defendant's   request]   when

supported by law and the evidence.").              It also protects the

defendant from some harsh realities of jury decision-making, see,

e.g., Keeble, 412 U.S. at 212–13 ("[A] defendant is entitled to a

lesser    offense   instruction--in    this    context   or   any   other--

precisely because he should not be exposed to the substantial risk

that the jury's practice will diverge from theory.            Where one of

the elements of the offense charged remains in doubt, but the

defendant is plainly guilty of some offense, the jury is likely to

resolve its doubts in favor of conviction.").         While "[a]n element

of the mercy-dispensing power is doubtless inherent in the jury

                                   - 7 -
system, and may well be a reason why a defendant seeks a lesser

included    offense    instruction,.           .    .    it   is   not     by    itself   a

permissible basis to justify such an instruction."                              Kelly, 370

F.2d at 229.     The defendant's right to such an instruction "does

not extend beyond the right of the prosecutor."                      Id.

            The rule only applies, of course, when the offense

charged actually includes a lesser-included offense, which is

defined    as   an   offense     "necessarily            included"   in     the    charged

offense.    Fed. R. Crim. P. 31(c)(1); Schmuck v. United States, 489

U.S. 705, 716 (1989) ("Under [the 'elements'] test, one offense is

not 'necessarily included' in another unless the elements of the

lesser    offense    are   a    subset    of       the    elements   of     the    charged

offense.").      In this case, the parties rightly agree that the

offense charged (possession of crack with intent to distribute)

"necessarily included" the lesser offense of simple possession of

crack.     The trial court was therefore required to grant Nur's

request to give such an instruction to the jury if two further

conditions were met:           (1) "a contested fact separates the two

offenses," and (2) "on the evidence presented, it would be rational

for the jury to convict only on the lesser included offense and

not the greater one."          United States v. Boidi, 568 F.3d 24, 27, 29

(1st Cir. 2009).

            The government concedes that the first condition was

satisfied in this case; i.e., "a contested fact separates the two

                                         - 8 -
offenses."       That    fact   is   the   intent   to    distribute.        Nur

specifically argued that he "did not intend to distribute drugs."

             Instead, the government argues that it would not have

been rational in this case for a jury to convict Nur on the lesser,

simple-possession offense while acquitting him on the greater

offense because his defense was "completely exculpatory," in the

sense that Nur claimed he was guilty of no offense, with the

officers having lied on all material points.             Clearly, though, the

law cannot be that a defendant must admit to the lesser crime in

order to obtain the lesser-included-offense instruction.                Rather,

for the defendant's position at trial to eliminate the defendant's

right to insist on a lesser-included-offense instruction, that

position need interact with the evidence so as to limit the scope

of rational dispute to elements common to the two offenses. See

Keeble, 412 U.S. at 208 ("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 included offense and acquit him of the

greater."). To determine whether a case presents such a situation,

we need to assess both the nature of the defense and the possible

constructions of the evidence that are rationally possible.                  See

United States v. Thornton, 746 F.2d 39, 48 (D.C. Cir. 1984)

("[E]ven   where   the    defendant    presents     a    totally   exculpatory

defense,   the   instruction     should    nonetheless     be   given   if   the

                                     - 9 -
evidence presented by the prosecution provides a rational basis

for the jury's finding the defendant guilty of a lesser included

offense.") (emphasis in original); see also United States v.

Ferreira, 625 F.2d 1030, 1032 (1st Cir. 1980) (the jury could

rationally have convicted defendant of the lesser offense while

acquitting him of the greater offense even in the absence of any

express challenge by the defendant to the government's evidence

tending to prove the element distinguishing the two offenses).          In

short, merely denying the entire charge as not believable does not

automatically render irrational a conviction by the jury on only

the lesser included offense.

              This conclusion makes great sense because a lesser-

included-offense instruction is a double-edged sword that can be

wielded by the prosecution as well.         See Keeble, 412 U.S. at 208.

While the instruction may in theory reduce the probability of a

conviction on the greater offense, it also lessens the likelihood

of a complete acquittal.     See United States v. Szpyt, 785 F.3d 31,

48 (1st Cir. 2015) (Kayatta, J., dissenting).         If the defendant's

denial   of    all   culpability   were   itself   sufficient   to   render

irrational a jury decision that convicts only on the lesser

offense, the government might be unduly restrained in its own

exercise of its Rule 31 privilege.          Cf. Kelly, 370 F.2d at 229

(explaining that the defendant's right to such an instruction "does

not extend beyond the right of the prosecutor").

                                   - 10 -
          Thus, even recognizing that Nur argued that he was

completely innocent because the police lied about everything, we

must still ask whether the jury could have rationally found that

the government did not prove beyond a reasonable doubt that Nur

intended to distribute the crack, yet still have convicted him of

possession.   Without suggesting that a jury need or would have so

found, and while acknowledging that the evidence of an intent to

distribute is strong, for the following reasons we think that a

jury could have so found.

          The evidence in this case presented a two-act play.              The

compelling    evidence   of   possession    consisted        of     the   drugs

themselves and the testimony of three officers about what they saw

at the scene of the arrest.      The compelling evidence supporting

the intent to distribute charge, in turn, consisted largely of

Nur's alleged admissions later made at the station to two of those

officers, not including the one who testified that he actually

found the drugs on Nur at the scene of the arrest. Those admissions

could have been recorded, but were not recorded for reasons that

are not compelling, even if certainly plausible.         A rational jury

could have decided, based on its assessment of the different

officers' respective testimony, that the report of Nur's statement

at the station gilded the lily to fit an enhanced charge.

          That still leaves the quantity of drugs involved, a fact

common   to   both   offenses.      The    quantity     of        those   drugs

                                 - 11 -
(approximately seven grams) was not itself contested.            To convict

Nur on the possession charge would be to find him in possession of

that quantity.      The evidence showed that seven grams was worth

roughly $700, as compared to the $50 that a "street level addict"

would "typically" spend on a single purchase according to a

government    witness.      That   quantity,     the    government   argues,

"permitted the jury to conclude that the drugs were not intended

for personal use."        That is certainly true.         But the issue is

whether the evidence compelled such a finding, as it would have,

for example, if Nur possessed a kilo.           See Thornton, 746 F.2d at

42, 48 (concluding that no one could claim that a heroin stash

worth $44,000 wholesale was for personal use only). We see nothing

in the testimony about the quantity of drugs "typically" purchased

by a user that would compel a jury to conclude that users never

bought $700 worth of drugs.         The government also points to the

drug's packaging in multiple dose sizes, but that suggests only

that it was to be sold or was recently bought for use.           The amount

of   cash   with   no   apparent   job   was   also    suspicious,   but   not

necessarily compelling without inference.               The fact that drug

dealers often organize their cash into $100 bundles does not compel

a jury to reason in reverse that $100 bundles necessarily mean the

owner of the cash is a drug dealer.            In any event, the evidence

that Nur owned the cash was his admission at the station.



                                   - 12 -
            Our conclusion concerning the evidence is limited.           A

jury rationally could have found that, notwithstanding proof of

possession, the government did not prove an intent to distribute

beyond a reasonable doubt.

            The government contends, lastly, that the failure to

give the requested instruction constituted harmless error.             "We

have previously indicated, in the context of a habeas corpus

petition, that harmless-error analysis can theoretically apply to

a trial court's failure to instruct a jury on a lesser included

offense."    United States v. Flores, 968 F.2d 1366, 1372 (1st Cir.

1992) (citing Tata v. Carver, 917 F.2d 670, 671–72 (1st Cir.

1990)).    Assuming but not deciding that the harmless-error escape

hatch is within reach on direct review, it would nevertheless

"require    highly   unusual   circumstances"   to   find   harmless   the

failure to give a lesser-included-offense instruction, see Flores,

968 F.2d at 1372, as such a failure removes from the realm of jury

decision-making a rational rendition of the record.           On de novo

review, drawing all inferences in the defendant's favor, such a

finding would be inconsistent with what we have already stated.




                                 - 13 -
                                  IV.

            For   the   aforementioned   reasons,   we   vacate   Nur's

conviction and remand for further proceedings consistent with this

opinion.3




     3  Neither party addresses on this appeal whether the
government must retry the case if it wants a conviction, or instead
has the option of relying on the jury findings to support entry of
conviction on only the offense of possession. See Boidi, 568 F.3d
at 31.
                                - 14 -
