                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                       File Name: 12a0260p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 11-5194
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 JAMES LAPOINTE,
                                                N
                  Appeal from the United States District Court
               for the Eastern District of Tennessee at Knoxville.
             No. 09-00141-010—Robert Leon Jordan, District Judge.
                                   Argued: February 28, 2012
                            Decided and Filed: August 13, 2012
    Before: MERRITT and ROGERS, Circuit Judges; POLSTER, District Judge.*

                                       _________________

                                            COUNSEL
ARGUED: Jonathan Harwell, HARWELL AND HARWELL, P.C., Knoxville,
Tennessee, for Appellant. Alexandra Hui, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee. ON BRIEF: Jonathan Harwell, Ralph E. Harwell,
HARWELL AND HARWELL, P.C., Knoxville, Tennessee, Russell T.
Greene, Knoxville, Tennessee, for Appellant. Alexandra Hui, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
                                       _________________

                                             OPINION
                                       _________________

         MERRITT, Circuit Judge. A jury convicted Defendant James LaPointe of
(1) conspiring to distribute or conspiring to possess with the intent to distribute
oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (2) attempting to possess

         *
           The Honorable Dan A. Polster, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                   1
No. 11-5194         United States v. LaPointe                                    Page 2


oxycodone with the intent to distribute in violation of 21 U.S.C. § 846. He now appeals.
On the first count, LaPointe claims that he should have received an instruction on the
lesser-included offense of conspiracy to possess oxycodone, a misdemeanor. On the
second count, he claims that the prosecution failed to prove that he took a “substantial
step” towards possession. He received a sentence of 63 months on each count to run
concurrently. We affirm the conviction on Count II, but we reverse and remand for a
new trial on Count I because LaPointe was improperly denied an instruction on a lesser-
included offense.

                                    I. Background

       LaPointe was part of an oxycodone trafficking organization from the summer of
2009 until his arrest on October 27, 2009. During that time, Lance Barabas shipped
oxycodone pills from Tampa, Florida, to Knoxville, Tennessee, where Dustin Wallace
received them and organized their distribution throughout Knoxville. Wallace fronted
most of the oxycodone pills to his distributors with the understanding that they would
repay him with the proceeds from future sales to users. Once he received the proceeds
of those sales, Wallace paid Barabas in Tampa. He also retained a few pills to sell
directly to users. These direct sales were completed with cash and never on credit.

       The United States’ theory on Count I was that LaPointe acted as a low-level
distributor, receiving oxycodone from Wallace and selling it to end users. The Drug
Enforcement Agency introduced conversations, recorded from Wallace’s phone, between
LaPoine and Wallace. During these calls, LaPointe requests drugs from Wallace,
discusses possible customers for oxycodone, and occassionally offers to sell Oxycontin
pills to Wallace. Wallace and another distributor, Will Kaman, testified at trial,
substantially corroborating the recorded calls. In addition, both witnesses stated that
LaPointe sometimes bought pills multiple times a day and that each had witnessed him
distributing pills to his girlfriend and her sister. LaPointe denied any role in the
oxycodone-distribution conspiracy. He claims that the phone calls recorded him
deceiving Wallace into giving him pills on credit. LaPointe asserts that he needed large
quantities of oxycodone to assuage severe pain from prior injuries and did not always
No. 11-5194        United States v. LaPointe                                         Page 3


have the cash to pay for the drugs immediately. The offers to sell pills to Wallace were,
assertedly, an effort to develop a more complex, believable ruse. His defense at trial was
that all his actions were merely aimed at possessing oxycodone for personal use.

       One specific incident forms the factual basis for Count II of the indictment. In
October 2009, Wallace asked LaPointe to receive a package of oxycodone. LaPointe,
who owns an integrated security business, agreed but proposed that Wallace send the
package to his office, rather than to his home. LaPointe promised to be at his office
when the package arrived and repeatedly provided Wallace with the address. Law
enforcement prevented LaPointe from fulfilling his promise and arrested him at home,
before he left for his office, on October 27, 2009. While executing a search of
LaPointe’s office, officers observed UPS deliver a package containing oxycodone.

       The prosecution charged and indicted LaPointe on two counts. In the first count,
the indictment charged two theories conjunctively, “conspiracy to distribute” and
“conspiracy to possess with intent to distribute”:

                1. The defendant did “conspire . . . to commit violations of Title
       21 United States Code § 841(a)(1) . . . to knowingly . . . distribute and
       possess with intent to distribute . . . a detectable amount of oxycodone
       . . . and a quantity of a mixture and substance containing a detectable
       amount of marijuana . . . .”
                2. The second count charged that the defendant did “knowingly
       . . . attempt to possess with intent to distribute a quantity . . . of
       oxycodone . . . .”

After the presentation of evidence, LaPointe requested and was denied an instruction on
the lesser- included offense of conspiracy to possess oxycodone. The district court held
that conspiracy to possess was not a lesser-included offense of conspiracy to distribute
in Count I of the indictment. The jury subsequently convicted LaPointe of both counts
and sentenced him to 63 months’ imprisonment on each count to be served concurrently.
After filing several post-trial motions, which were denied, he now appeals.
No. 11-5194            United States v. LaPointe                                                  Page 4


                           II. Lesser-Included Offense Instruction

         LaPointe objects to the district court’s decision to deny him a lesser-included
offense instruction on Count I of the indictment. Where a proper request is made in the
district court, we review a refusal to instruct on a lesser-included offense for abuse of
discretion. See United States v. Jones, 403 F.3d 817, 821 (6th Cir. 2005). But if a
defendant is entitled to such an instruction, “it is generally reversible error” not to give
it. United States v. Waldon, 206 F.3d 597, 604 (6th Cir. 2000). A defendant is entitled
to a lesser-included offense instruction 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) the
evidence would support a conviction on the lesser offense; and (4) the proof on the
element or elements differentiating the two crimes is sufficiently disputed so that a jury
could consistently acquit on the greater offense and convict on the lesser.” United States
v. Colon, 268 F.3d 367, 373 (6th Cir. 2001). Only the second and the third requirements
are at issue in this case.

         By denying a lesser-included offense instruction, a court forces the jury either
to acquit the defendant or to find him or her guilty of the full offense. When not offered
the so-called “third option,” the jury is more likely to stretch to assign the defendant an
“unwarranted conviction.” Beck v. Alabama, 447 U.S. 625, 637 (1980) (“While we have
never held that a defendant is entitled to a lesser included offense instruction as a matter
of due process, the nearly universal acceptance of the rule in both state and federal courts
establishes the value to the defendant of this procedural safeguard.”). LaPointe was
entitled to an instruction of conspiracy to possess and reverse.1


         1
           Because we subsequently affirm LaPointe’s conviction on Count II–with its attendant sentence
of 63 months’ imprisonment to be served concurrently–we have the discretion not to address LaPointe’s
objection to his conviction on Count I. Under the “concurrent sentencing doctrine,” “an appellate court
may decline to hear a substantive challenge to a conviction when the sentence on the challenged conviction
is being served concurrently with an equal or longer sentence on a valid conviction.” Dale v. Haeberlin,
878 F.2d 930, 935 n.3 (6th Cir. 1989). We choose not to exercise that discretion here, where it has not
been asked for, because to do so would not advance judicial economy and would impede the resolution
of a significant issue, discussed below, on which other circuits disagree. See United States v. Greer,
588 F.2d 1151, 1154 (6th Cir. 1978); United States v. Maze, 468 F.2d 529, 536 n.6 (6th Cir. 1972).
Furthermore, his conviction on Count I may subject LaPointe to future “adverse collateral consequences,”
United States v. Davis, 547 F.3d 520, 529 (6th Cir. 2008), including “delay of eligibility for parole, a
harsher sentence under a recidivist statute for any future offense, credibility impeachment, and societal
stigma.” United States v. DeCarlo, 434 F.3d 447, 457 (6th Cir. 2006).
No. 11-5194            United States v. LaPointe                                                  Page 5


         A. The Elements of the Lesser Offense are Included Within the Greater

         The district court denied LaPointe’s request for an instruction because it found
that “conspiracy to distribute” does not necessarily include “conspiracy to possess,” see
Colon, 268 F.3d at 376 (“[S]imple possession is not a lesser-included offense of
distribution of a controlled substance.”), and that, as a result, the requested instruction
was not a lesser-included offense of Count I of the indictment.2 But unlike Colon, Count
I also charges LaPointe with “conspiracy to possess with intent to distribute.” Every
circuit to consider the issue agrees that conspiracy to possess is a lesser-included offense
of conspiracy to possess with intent to distribute. See e.g., United States v. Boidi,
568 F.3d 24, 28 (1st Cir. 2009) (Boudin, J.) (“[A] vertical ‘conspiracy to possess drugs
with intent to distribute’ can easily be said to be a ‘conspiracy to possess drugs’ with one
added element, namely, that the parties also had a shared aim that the possessed drugs
then be distributed.”). The district court disregarded these cases and stated simply that
“[a]n offense can be charged conjunctively and proven disjunctively.” United States v.
LaPointe, 3:09-CR-141, 2010 WL 3957725, at *4 (E.D. Tenn. Oct. 7, 2010) (citing
United States v. McAuliffe, 490 F.3d 526, 534 (6th Cir. 2007)).

         Neither McAuliffe nor the principle it stands for speaks to the issue in this case.
The government’s right to charge in the conjunctive and prove in the disjunctive reflects
the necessary discrepancies between indictments and jury instructions. Indictments must
be phrased in the conjunctive so that society can be confident that the grand jury has
found probable cause for all of the alternative theories that go forward. Juries, on the
other hand, may convict a defendant on any theory contained in the indictment. As a
result, judges read jury instructions in the disjunctive. This well-settled principle does
not mean, nor should it, that a defendant must show that the desired instruction is a



         2
           LaPointe notes that United States v. Colon only discusses simple possession and distribution
rather than conspiracy to possess and conspiracy to distribute. But another unpublished Sixth Circuit case
has already extended the holding of Colon to conspiracies. See United States v. Fonseca, 193 F. App’x
483, 493 (6th Cir. 2006). LaPointe asks us to ignore this “wrongly decided” case because it merely adopts
Colon’s holding without considering the distinctive attributes of conspiracy instructions. We do not
address this argument because the district court erred elsewhere in holding that, to be entitled to an
instruction, the defendant must show that a proposed charge is a lesser-included offense of all theories
enumerated in an indictment count.
No. 11-5194        United States v. LaPointe                                        Page 6


lesser-included offense of all theories presented in an indictment count. Such a rule
would place a greater burden on the defendant than we place on prosecutors who, at trial,
must succeed on only one of an indictment’s theories. See United States v. Cornell,
162 F. App’x 404, 415 (6th Cir. 2006).

       Instead of weighing requested instructions against the words of the statute under
which a defendant is ultimately judged, the district court’s holding places unnecessary
importance on the way the prosecution drafts and organizes the indictment. See FED. R.
CRIM. P. 7(c)(1). This approach would permit prosecutors to preempt defendants’
requests for lesser-included offense instructions by including multiple theories in each
count of the indictment. It would also hinder appellate review. Because a jury does not
typically have to announce under what theory it finds a defendant guilty, we cannot
know whether LaPointe was convicted of conspiracy to distribute or of conspiracy to
possess with intent to distribute. If the jury convicted him of the latter then his request
for an instruction of conspiracy to possess was all the more reasonable because appellate
courts nationwide agree that conspiracy to possess is a lesser-included offense of
conspiracy to possess with intent to distribute. The district court erred in finding that
elements of the lesser conspiracy were not a part of the greater.

     B. The Evidence at Trial Would Support a Conviction on the Lesser Offense

       Next, the government argues that LaPointe cannot satisfy element three of the
Colon test, namely, whether the “evidence would support a conviction on the lesser
offense.” 268 F.3d at 373. The district court did not address this argument. According
to the government, no evidence supports a conviction for conspiracy to possess because
there was no such conspiracy. The only conspiracy LaPointe could join was the one with
Wallace, Kaman, and others to distribute drugs. At trial, the issue was whether or not
he was a part of that distribution conspiracy. The defense never argued that LaPointe
was part of a conspiracy designed solely to possess oxycodone.

       The government’s argument implies that a conspiracy may have only one
objective rather than multiple. It takes sides in a circuit split–which, until today, this
court has not weighed in on–and follows the holding of an unpublished opinion from the
No. 11-5194        United States v. LaPointe                                        Page 7


Tenth Circuit. See United States v. Gilmore, 438 F. App’x 654 (10th Cir. 2011).
Gilmore, who was convicted of conspiracy to distribute or to possess with intent to
distribute, was denied a lesser-included offense instruction on conspiracy to possess
because he did not try to show that all of the conspirators merely intended for him to
possess drugs. See id. at 657-58. As in this case, defendant’s co-conspirators were part
of a conspiracy to distribute. See id. at 658. The dispute at trial was over Gilmore’s role
in that conspiracy. See id. The court concluded that he was essentially asking for an
instruction on a “different, uncharged conspiracy, not a lesser included offense of the
charged conspiracy.” Id.

       The Tenth Circuit’s approach contradicts the First Circuit’s. See supra Boidi,
568 F.3d at 27-29. A jury convicted Boidi of conspiracy to possess drugs with intent to
distribute. On appeal, his conviction was reversed because he was not granted an
instruction on conspiracy to possess. See id. at 27. The court of appeals rejected the
argument that a defendant must demonstrate, with separate evidence, a separate group
conspiring only to possess contraband. See id. It is well-established that a single
conspiracy may have multiple objectives, including the violation of several criminal
laws. See Ingram v. United States, 360 U.S. 672, 679 (1959) (citing United States v.
Rabinowich, 238 U.S. 78, 86 (1915)). The correct question is whether there is “some
core of facts that is common to the scenario that the government sought to prove and the
one that the defendant claims to show only a lesser included offense.” Id. at 28.
Circumstances will sometimes require a defendant to produce new evidence
demonstrating a separate conspiracy. See United States v. Garcia, 27 F.3d 1009, 1015
(5th Cir. 1994) (“A defendant is not entitled to a lesser included offense instruction
simply because he admits to committing a lesser offense at a different time with other
persons.”). But in Boidi the same evidence could be used to support both the greater and
the lesser conspiracies. See 568 F.3d at 28.

       In this case, if it had been presented with an instruction on conspiracy to possess,
the jury would have looked at the same core facts as it did when convicting LaPointe of
conspiracy to possess with intent to distribute. The lesser conspiracy would have had
No. 11-5194        United States v. LaPointe                                        Page 8


the   same     members–Wallace,         Kaman,      and    LaPointe–and       the    same
contraband–oxycodone–as the greater. See id. (“Whether one looks at the greater or
lesser crime in this case, the conspirators and drugs sold to [defendant] are identical . .
. .”). The only factual question differentiating the greater conspiracy from the lesser is
whether LaPointe shared with his co-conspirators the intent to distribute the oxycodone.
The evidence the government relied on to prove this final element, primarily recorded
phone calls and co-conspirators’ testimony, already “support[ed] a conviction on the
lesser offense.” Colon, 268 F.3d at 373. See also Boidi, 568 F.3d at 29 (“The witnesses
that the government chose to prove the greater offense are the proof of the lesser
included one.”) (emphasis in the original).

       We agree with the First Circuit. Under the theory of criminal liability for
conspiracy, a group of individuals involved in a single conspiracy may have multiple
objectives–say, robbery, embezzlement, drug trafficking, and murder. See Ingram,
360 U.S. at 679. A defendant may be convicted, with the same body of evidence, of
joining the conspiracy as to all or merely some subset of the conspiracy’s objectives.
See United States v. Atehortva, 17 F.3d 546, 552 (2d Cir. 1994). The prosecution must
separately prove a defendant’s intention to join each objective of the conspiracy. See
United States v. Warman, 578 F.3d 320, 333 (6th Cir. 2009) (“the [government] must
prove that [the defendant] was aware of the objects of the conspiracy, and that he
voluntarily associated himself with it to further its objectives.”) (quoting United States
v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999)). It may not simply show a defendant’s
membership in a conspiracy and then, without more, assign him or her guilt for all of the
conspiracy’s substantive objectives. Instructions on lesser-included offenses ensure that
the prosecution satisfies its burden by listing for the jury all of the possible objectives
of the conspiracy. Because common evidence supports both possible criminal objectives
of the conspiracy in this case, the court should have granted the instruction and forced
the prosecution to demonstrate exactly to what LaPointe agreed.

       Although the government does not challenge Colon’s fourth requirement for
entitlement to a lesser-included offense charge, it is in any event satisfied here.
No. 11-5194            United States v. LaPointe                                                  Page 9


See Colon, 268 F.3d at 373 (“[T]he proof on the element or elements differentiating the
two crimes is sufficiently disputed so that a jury could consistently acquit on the greater
offense and convict on the lesser.”). A properly-instructed jury could rationally acquit
LaPointe of conspiracy to possess with intent to distribute while convicting him of
conspiracy to possess. A jury could find that Wallace and Kaman intended for LaPointe
to possess oxycodone and that he shared that intent. Many of the government’s phone
conversations demonstrated this joint, unlawful objective. The government’s witnesses
also testified that the conspirators successfully accomplished this goal and LaPointe did
indeed possess oxycodone. That a subset of the conspirators also possessed a further
desire that LaPointe distribute oxycodone does not invalidate their shared intent that he
first possess the drugs. To hold otherwise would be inconsistent with the common-law
rule of leniency and would unreasonably require defendants to contest their co-
conspirators’ subjective intent simply to receive a lesser-included offense instruction.
Here, a jury could find that there was a conspiracy among Wallace, Kaman, and
LaPointe with the shared objective of putting LaPointe in possession of oxycodone.3 See
United States v. Yang, 281 F.3d 534, 544 (6th Cir. 2002) (“It is the mutual understanding
or agreement itself that is criminal . . . .”).

         This result is appropriate because there is conflicting evidence of LaPointe’s
participation in the conspiracy to possess with intent to distribute, which the jury should
evaluate in light of the lesser-included instruction. LaPointe’s co-conspirators clearly
intended for him to distribute the oxycodone. But the evidence proving whether or not
he shared or acted upon this further intent is contested. See Boidi, 568 F.3d at 30
(“‘intent to distribute’ had to reflect not only awareness but an agreed purpose of both
a dealer and [the defendant].”). LaPointe’s co-conspirators claimed to have seen him
give oxycodone to his girlfriend and her sister; however, LaPointe claims to have tricked


         3
          The government also observes that LaPointe is not entitled to an instruction on conspiracy to
possess because he alleges only a simple buyer-seller relationship, which does not establish a conspiracy.
See United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003) (citing United States v. Anderson, 89 F.3d
1306, 1310 (6th Cir.1996)). However, LaPointe’s admitted involvement in the conspiracy surpassed the
simple buyer-seller relationship. Were a jury to accept his testimony as true, LaPointe admits going along
with the conspiracy in an effort to obtain the drugs and thus tricking his co-conspirators. This goes far
beyond the simple street-dealer relationship contemplated by Brown and its progeny.
No. 11-5194        United States v. LaPointe                                     Page 10


his co-conspirators into fronting him the pills on credit to feed his addiction. LaPointe
may never have had the intent to distribute. The jurors should be given a chance to
weigh the credibility of this testimony again with a full slate of options available to
them.

        A common core of facts would have been probative on both the greater and the
lesser-included conspiracy. As a result, the cost to the district court of granting
LaPointe’s request for a lesser-included instruction was minimal. Given the conflicting
evidence, an instruction on conspiracy to possess would have protected against the
danger that the jury stretched for a conviction. Under these circumstances, it was error
to refuse LaPointe’s request for a lesser-included offense instruction. The conviction on
Count I of the indictment is reversed and remanded for a new trial.

                           III. Sufficiency of the Evidence

        On Count II of the indictment, attempted possession of oxycodone with intent to
distribute, LaPointe claims that there was not sufficient evidence that he took a
“substantial step” towards the commission of the crime. The district court disagreed.
See LaPointe, 2010 WL 3957725, at *2-3. “When appeal is taken from a criminal
conviction on the grounds that the evidence is insufficient to support the conviction, the
reviewing court determines ‘whether after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United States v. Pennyman,
889 F.2d 104, 106 (6th Cir. 1989) (quoting United States v. Gallo, 763 F.2d 1504, 1518
(6th Cir. 1985)). We reverse a conviction for insufficiency of the evidence only if it is
not supported by substantial and competent evidence, whether direct or wholly
circumstantial, upon the record as a whole. See United States v. Beddow, 957 F.2d 1330,
1334 (6th Cir. 1992). “[A] defendant claiming ‘insufficiency of the evidence bears a
very heavy burden.’” United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006)
(quoting United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986)).
No. 11-5194        United States v. LaPointe                                     Page 11


       LaPointe argues that there was insufficient evidence because he only agreed to
receive the package of oxycodone pills and was arrested at home before he could take
any “substantial step” towards commission. See United States v. Shelton, 30 F.3d 702,
705 (6th Cir. 1994) (“To prove an attempt, the government must show a defendant’s
intent to commit the proscribed criminal conduct together with the commission of an act
that constitutes a substantial step towards commission of the proscribed criminal
activity.”) (citations omitted). Demonstrating a “substantial step” does not require a
physical act; a defendant’s words alone can be “a substantial step.” See United States
v. Burns, 298 F.3d 523, 539 (6th Cir. 2002) (recorded conversations between defendant
and third parties “constituted a substantial step toward the completion of the offense.”);
United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999) (“[W]hen a defendant
engages in active negotiations to purchase drugs, he has committed the ‘substantial step’
towards the crime of possession required to convict him of attempted possession.”).

       During his conversations with Wallace, LaPointe went beyond simply agreeing
to participate and actively facilitated the attempted crime by suggesting a delivery
location for the drugs, repeatedly providing his business address, instructing Wallace on
how to list the package’s recipient, and volunteering to be at his office when the package
arrived. A rational juror could find that these conversations constituted a “substantial
step” sufficient to “corroborate the firmness” of LaPointe’s intent to possess oxycodone
with intent to distribute. Bilderbeck, 163 F.3d at 975. The police did not need to wait
until LaPointe left his house before arresting him. We affirm the district court’s
conclusion on this issue.

       Accordingly the judgment of the district court on Count II is affirmed and the
judgment on Count I is reversed. The case is remanded to the district court for further
proceedings consistent with this opinion.
