             United States Court of Appeals
                        For the First Circuit

No. 07-1527

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                             SCOTT BOIDI,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. George A. O'Toole, Jr., U.S. District Judge]


                                Before

                   Boudin and Lipez, Circuit Judges,

                      and Singal,* District Judge.


     Robert L. Sheketoff with whom David R. Yannetti was on brief
for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.



                             June 3, 2009




     *
         Of the District of Maine, sitting by designation.
            BOUDIN, Circuit Judge.           A federal jury convicted Scott

Boidi on six criminal charges relating to his embezzlement of union

funds and drug conspiracy; he was sentenced to concurrent 84 month

sentences on two of the counts--racketeering and conspiracy to

possess with intent to distribute drugs--and lesser concurrent

sentences on other counts.            He now appeals, attacking the drug

conspiracy    conviction   and    (indirectly)      two    other   convictions

potentially dependant on the drug conspiracy conviction.              He does

not contest his conviction on three counts that charged only

embezzlement.

            The facts, focusing on the drug conspiracy charge, are

taken from the trial.      During the relevant period, approximately

January 2000 through June 2002, Scott Boidi was the union business

manager for Tunnel Workers Local 88 in Quincy--an elected position

he had held since 1991--but some time in 2001 he developed a

serious cocaine addiction.       He began to steal union funds to feed

his drug habit, taking dues money from the union and seeking

unwarranted reimbursements to buy cocaine.

            Boidi's wife twice expelled him from the house and, not

long after the second eviction, Boidi took up with Lynne DeMita, a

childhood    acquaintance.       In    November    2001,   Boidi   moved   into

DeMita's home in Rockland, Massachusetts.             According to DeMita,

they were together as a couple living in various locations until

roughly May or June 2002.    At Boidi's trial, DeMita testified that


                                       -2-
during their time together, Boidi bought cocaine daily, sometimes

two or three times per day.

          DeMita claimed to have been present "99% of the time"

when Boidi bought the drugs.   The purchases took place at various

locations, including the union hall, her home in Rockland, a

Copeland Street apartment in Quincy, friends' homes, and hotels.

DeMita said that, while she never paid for the cocaine, Boidi gave

it to her all the time and that he also shared with other friends

including Steve Zigliano, Michael "Mickey" Cochran, Eddie Silva,

Tommy Bellotti, and his brother Alan.

          There was other uneven testimony as to Boidi's sharing.

Cochran confirmed that he had used cocaine with Boidi, but he said

that their use had been infrequent and he was unsure whether Boidi

had ever provided the cocaine.     Thomas Brennan said that he had

used cocaine with Boidi but that Boidi did not provide it.   Dominic

Mazzeo testified to having shared cocaine that Boidi brought to the

union hall.

          Boidi and DeMita's usual suppliers were Rafael "Ralph"

Soto and his friend Hector Vega.   Soto said that he sold to Boidi

repeatedly over the course of three or four months.   For the first

month and a half Boidi would buy three grams three times per day

but purchases then slowed as Boidi ran short of funds; the largest

amount he ever purchased at one time was fifteen grams, or half an

ounce, which he explained by saying that he took "care of his


                                 -3-
people that worked for him."        Soto said that DeMita frequently was

with Boidi during the purchases and that he had seen DeMita, Boidi,

Belotti and Zigliano use the cocaine.

            Vega,    who   sometimes     worked   as    a   runner   for   Soto,

testified that he sold Boidi a minimum of three grams of cocaine

per order, usually three to five days per week, one to three times

per day over a period of three to four months.                 Vega said that

Boidi was generally alone when he bought the cocaine, although he

had once seen Boidi give some to another person.             Vega also recalls

conversations where he and Boidi discussed "stepping on" the

cocaine (i.e., diluting it)--potentially for further distribution.

            The sales eventually came to an end, and Boidi was

committed at Bridgewater State Hospital from late March 2002 until

mid-April    2002;    he   also    received   inpatient      substance     abuse

treatment at Bournewood Hospital during most of June 2002, after

which he received outpatient treatment.           In July 2002 he took out

a restraining order against DeMita, apparently claiming that she

was   harassing     him.    In    due   course,   the   embezzlement       scheme

unraveled and Boidi became the subject of extensive investigation.

            By a nine-count superceding indictment on September 21,

2005, Boidi was charged with racketeering (count 1), 18 U.S.C. §

1962(c) (2006), three counts of embezzlement of union assets

(counts 2-4), 29 U.S.C. § 501(c) (2006); conspiracy to possess with

intent to distribute 500 or more grams of cocaine (count 5), 21


                                        -4-
U.S.C.   §§   846,   841(b)(1)(B)(ii)(II)   (2006),   and   use   of   a

communication facility to facilitate a drug crime (count 6), 21

U.S.C. § 843(b).     The remaining three counts are not pertinent.1

          After a lengthy jury trial, Boidi was found guilty on the

six counts just listed and given concurrent sentences of which the

two longest were 84 months.     Boidi now appeals, challenging only

the district court's failure to give a requested lesser included

offense instruction as to the drug conspiracy count; but he also

argues that reversal on this conviction would bring down the RICO

and communications facility convictions.

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

necessarily included in the offense charged," Fed. R. Crim. P. 31,

and a defendant is entitled to such an instruction where (1) the

lesser offense is "included" in the offense charged, United States

v. Ferreira, 625 F.2d 1030, 1031 (1st Cir. 1980), (2) a contested

fact separates the two offenses, id., and (3) "the evidence would

permit a jury rationally to find [the defendant] guilty of the

lesser offense and acquit him of the greater."        Keeble v. United

States, 412 U.S. 205, 208 (1973).




     1
      Boidi was ultimately acquitted as to using and carrying a
firearm during and in relation to a drug trafficking crime (count
7), 18 U.S.C. § 924(c)(1)(A), obstructing a proceeding of the
National Labor Relations Board (count 8), id. § 1505, and
persuading a person to lie to a federal grand jury (count 9), id.
§ 1512(b)(1).

                                  -5-
              Precedent says that we review de novo the decision

whether to give a lesser included offense instruction.                  United

States v. Flores, 968 F.2d 1366, 1367-68 (1st Cir. 1992).              That is

clearly right as to whether a second crime is a lesser included

offense; some circuits then give deference to the district court's

judgment as to whether the jury could rationally find the defendant

guilty of the lesser offense but acquit him of the greater.              E.g.,

United States v. Upton, 512 F.3d 394, 402 (7th Cir.), cert. denied,

129 S. Ct. 39 (2008).        The district judge did not reach the latter

issue here.

              The government does not dispute that possession is a

lesser included offense of possession with intent to distribute,

e.g., Custis v. United States, 511 U.S. 485, 488 (1994); United

States v. Ciampa, 793 F.2d 19, 27 (1st Cir. 1986), but says that

conspiracy to commit each crime is distinguishable: it argues that

an agreement to possess is a different agreement and not a lesser

included      version   of   an   agreement   to   possess   with   intent    to

distribute.      The two different agreements, it says, could easily

turn on different evidence and involve different people.

              The district court agreed that conspiracy to possess is

not a lesser included offense of conspiracy to possess with intent

to distribute, explaining that "it would be if we were talking

about   the    substantive    offenses"     but    that   "the   government   is

entitled to charge[,] at the risk of not being able to prove it, a


                                      -6-
particular agreement as a conspiracy charge."     With more time to

ponder the government's position than a trial judge fashioning an

instruction in mid-trial, we take a different view.

          The government's own position on the issue, although well

argued here, has not been consistent.   In at least one case, United

States v. Moran, Nos. 90-5024, 90-5025, 1991 WL 125461, at *4 (4th

Cir. Oct. 24, 1991) (unpublished), the government took the position

it urges here (and lost); in several others, it was content to

concede the lesser conspiracy was included in the greater.    E.g.,

United States v. White, 972 F.2d 590, 596 (5th Cir. 1992), cert.

denied, 507 U.S. 1007 (1993).

          In all events, courts that have confronted this or

comparable issues have regularly concluded or assumed that a less

serious conspiracy can be a lesser included offense of a similar

but greater one.   This is so both as to drug cases involving the

same issue as our case2 and as to cases (we list many in an


     2
      United States v. Carroll, 140 F. App'x 168, 169 (11th Cir.
2005) (per curiam) (unpublished); United States v. Ruhbayan, 406
F.3d 292, 295-96 (4th Cir.), cert. denied, 546 U.S. 917 (2005);
United States v. Araujo, No. 98-21008, 2000 WL 309408, at *1 (5th
Cir. Feb. 28, 2000) (per curiam) (unpublished); United States v.
Neely, No. 94-5107, 1996 WL 60329, at *2 (4th Cir.) (unpublished),
cert. denied, 519 U.S. 861 (1996); United States v. Valencia, No.
94-10348, 1995 WL 444658, at *4 (9th Cir.) (unpublished), cert.
denied, 516 U.S. 1001 (1995); United States v. Vaandering, 50 F.3d
696, 703 (9th Cir. 1995); United States v. Underwood, No. 94-5897,
1995 WL 241992, at *1 (6th Cir. Apr. 25, 1995) (unpublished);
United States v. Garcia, 27 F.3d 1009, 1014-15 (5th Cir.), cert.
denied sub nom Chavez v. United States, 513 U.S. 1009 (1994);
United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993), cert.
denied, 510 U.S. 1040 (1994); Moran, 1991 WL 125461, at *4; United

                                -7-
addendum) involving other kinds of drug or non-drug conspiracies

having an additional element separating a more serious one from a

less serious one.      This court has assumed the same in passing,

United States v. Arroyo, 546 F.3d 54, 56 (1st Cir. 2008), but has

not formally decided the issue.

          The initial question is an abstract and strictly legal

one: whether, looking to the required elements of a pair of crimes,

the two crimes coincide except that to commit the greater crime, an

additional     ingredient   (or   ingredients)   is   necessary.   That

requirement is satisfied here: 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.

          Of course, to justify the instruction in a particular

case, there must--at a factual level--be 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. If the government charges and seeks to prove a conspiracy

to possess with intent to distribute heroin in New York in 2005 but

the evidence arguably showed only a conspiracy to possess in San

Francisco in 2007, this would call only for an instruction that the


States v. Miller, 939 F.2d 605, 609 (8th Cir. 1991); United States
v. O'Meara, 895 F.2d 1216, 1219-20 (8th Cir.), cert. denied, 498
U.S. 943 (1990).

                                    -8-
jury not convict if the government proves a conspiracy different

than that charged.     E.g., United States v. Candelaria-Silva, 166

F.3d 19, 39 (1st Cir. 1999), cert. denied sub nom Ortiz-Miranda v.

United States, 529 U.S. 1055 (2000).

          This is a problem that a trial judge might have to sort

out in deciding whether to give a multiple conspiracy instruction,

but it is not remotely present here.      Whether one looks at the

greater or lesser crime in this case, the conspirators and drugs

sold to Boidi are identical; the only further question is whether

Boidi intended to distribute the drugs and whether the distributors

shared in that aim as part of the agreement.   However this question

is answered, the two offenses relate to the same underlying events.

          In arguing here against the requested instruction, the

government says that different witnesses could be needed to prove

the lesser crime; but, in reality, to justify the instruction, the

lesser "included" offense has to be a version of much the same

factual scenario as the greater offense charged in the indictment

with a single difference: that the added element needed for the

greater offense need not be proved.        The witnesses that the

government chose to prove the greater offense are the proof of the

lesser included one.

          Of course, the government might have different witnesses

who could prove a possession conspiracy involving Boidi that was

substantially different from and not included within the greater


                                 -9-
conspiracy sought to be proved at trial; it could choose to

prosecute for this crime or not, but it would not be a lesser

included offense in this case.      The instruction is required only

where the evidence actually presented at trial would itself allow

a rational jury to convict of the lesser offense rather than the

greater one urged by the government.      Ferreira, 625 F.2d at 1031.

           We therefore hold that a possession conspiracy is a

lesser included offense of a conspiracy to possess with intent to

distribute and that the scenarios here overlap, but the instruction

requires that a further condition be met (it can, as above, be

phrased   as   two   further   conditions):   that,   on   the   evidence

presented, it would be rational for the jury to convict only on the

lesser included offense and not the greater one.           Otherwise the

instruction need not be given.      Flores, 968 F.2d at 1371.

           The government is right in saying that a jury on this

record could not rationally have doubted that Boidi distributed

drugs to DeMita.     Whether or not sharing with a girlfriend is often

so prosecuted, it is as much "distribution" as selling on a street

corner.   United States v. Cormier, 468 F.3d 63, 70 n.3 (1st Cir.

2006).    Evidence as to Boidi's sharing with or selling to other

persons appears in the record but is not as strong or consistent.

           The evidence as to sharing with DeMita came not only from

DeMita's extensive (and possibly unfriendly) testimony but also

from both Soto and Vega and from defense counsel's own cross


                                  -10-
examination of DeMita, which included questions that assumed joint

cocaine use, such as "you liked to smoke it . . . so he needed

more, right?"          So Boidi clearly possessed the cocaine with intent

to distribute.           If he had been charged and convicted of that

substantive crime, the case would be all over.

                 Instead Boidi was charged only with conspiracy to commit

the substantive crime.          The penalties are the same, 21 U.S.C. §

846,       but   the   government   may    get   evidentiary   and   atmospheric

advantages by charging conspiracy.               Here, it is true that it was

"distribution" to give the drug to a girlfriend; Boidi had a

continuing relationship with the dealers; and they knew that Boidi

was re-distributing the drugs at least to DeMita.               Yet, on a close

look, these facts do not necessarily compel a finding that the

charged conspiracy occurred.

                 The use of conspiracy doctrine in a vertical context has

caused courts unease.         In this circuit the continuing purchase and

sale relationship between Soto, Vega and Boidi, and the dealers'

knowledge of Boidi's re-distribution, would permit a jury to infer

both an agreement between them that Boidi possess the drugs and the

requisite intent as to distribution.3              But it would not compel a

jury to find the latter element, because the "intent to distribute"



       3
      United States v. Moran, 984 F.2d 1299, 1303-04 (1st Cir.
1993). Compare United States v. Hawkins, 547 F.3d 66, 74-75 (2d
Cir. 2008), and United States v. Lechuga, 994 F.2d 346, 350-51 (7th
Cir.) (en banc) (Posner, J.), cert. denied, 510 U.S. 982 (1993).

                                          -11-
had to reflect not only awareness but an agreed purpose of both a

dealer and Boidi.

          "Intent" is notoriously a trap term, conflating the

distinction between knowledge and purpose.         See United States v.

Tobin, 552 F.3d 29, 32-33 (1st Cir. 2009).        But a conspiracy is an

agreement between two (or more) parties having a shared "objective"

or "design" to commit the crime, so mere knowledge by Soto or Vega

as to what Boidi would do with the drugs is not enough unless they

shared Boidi's purpose to re-distribute.4         A main rationale for

making conspiracy a crime is that the shared purpose increases the

likelihood   of   accomplishment    and   makes   the   enterprise   more

dangerous. Moran, 984 F.2d at 1302-03; Developments, supra note 7,

at 924-25.

          The intent "to further, promote, or cooperate in" the

buyer's illegal activity "is the gist of conspiracy" and "knowledge

is the foundation of intent," but "not every instance of sale of

restricted goods . . . in which the seller knows the buyer intends

to use them unlawfully, will support a charge of conspiracy."

Direct Sales Co. v. United States, 319 U.S. 703, 711-12 (1943).




     4
      2 LaFave, Substantive Criminal Law § 12.2(c)(6), at 285 (2d
ed. 2003) ("[T]here must be a common design, so that if only one
party to the agreement has the necessary mental state then even
that person may not be convicted of conspiracy."); see
Developments in the Law: Criminal Conspiracy, 72 Harv. L. Rev. 922,
927 (1959).

                                   -12-
Ample circuit authority confirms the need for joint purpose--neatly

summed by the Second Circuit:

           Evidence that a buyer intends to resell the
           product instead of personally consuming it
           does not necessarily establish that the buyer
           has   joined    the   seller's   distribution
           conspiracy. This is so even if the seller is
           aware of the buyer's intent to resell. It is
           axiomatic that more is required than mere
           knowledge of the purpose of a conspiracy.

Hawkins, 547 F.3d at 74; see also Lechuga, 994 F.2d at 349; United

States v. Glenn, 828 F.2d 855, 857-58 (1st Cir. 1987) (Breyer, J.).

           Stake and purpose are closely related, and DeMita's share

increased the frequency and quantity of Boidi's purchases.    So the

jury here could have found that Soto or Vega had a stake in the

redistribution beyond mere knowledge of it or, put differently,

that re-distribution as well as possession was a joint aim.    But,

by contrast to what Soto or Vega's stake would have been if Boidi

were engaged in commercial re-distribution on a large scale, the

inference of joint purpose to re-distribute here is far from

inevitable or compelling.

           The required instruction is prompted by a concern that,

deprived of a lesser included option, the jury may stretch to

convict the defendant of the greater crime.     Flores, 968 F.2d at

1369; United States v. Balthazard, 360 F.3d 309, 320 (1st Cir.

2004).   Here nothing compelled the jury to find that the suppliers

and Boidi were conspiring that Boidi should possess the drugs with



                                -13-
intent to distribute.      The jury could rationally have convicted of

the lesser conspiracy, and the instruction should have been given.

           So, the conspiracy conviction cannot stand (although the

government could retry the charge with the required instruction),

so we turn to the consequences.         It is clear that the conspiracy

conviction must be vacated, but two separate issues remain: whether

a conviction on the lesser included offense may be substituted

without a new trial or Boidi's consent, and what effects either

vacation or substitution have on two of Boidi's other convictions.

           Where a lesser included offense charge should have been

given, several circuits have allowed the district court on remand,

in its discretion and with the government's consent, to enter

judgment of conviction on the lesser included offense where the

jury necessarily found every fact required for conviction of the

lesser offense.5      The premise is that, given the actual conviction

supported by adequate evidence, the best the defendant could have

obtained   by   the   charge   is   conviction   on   the   lesser   included

offense.

           The government's answering brief urged that the district

court be given this option; Boidi filed no reply brief and so is

not on record as arguing that the other circuits' approach is wrong


     5
      United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert.
denied, 449 U.S. 954 (1980); United States v. Crutchfield, 547 F.2d
496, 502 (9th Cir. 1977); United States v. Whitaker, 447 F.2d 314,
322 (D.C. Cir. 1971); see also United States v. Levy, 703 F.2d 791,
794 n.9 (4th Cir. 1983).

                                     -14-
or contesting this solution here.       We think that the approach is at

least colorable but leave Boidi free on remand (if the government

presses the request) to argue that it is mistaken, that the

necessary conditions have not been met or that the district court

ought not allow it for other reasons.

           As to the impact of our vacating of the drug conviction

on Boidi's other convictions, Boidi's brief asserts summarily that

the RICO conviction must fall because the drug conspiracy was one

of the predicate acts; but the RICO conviction was supported by the

jury's   specific   finding   that    the    government    had     proven   five

predicate acts--three acts of embezzlement of union assets plus the

conspiracy and the use of a communications facility to facilitate

a drug crime.

           The   three   embezzlement       acts   are   legally    sufficient

predicates and only two are needed to support the RICO conviction.

United States v. Cianci, 378 F.3d 71, 91 (1st Cir. 2004); United

States v. Edwards, 303 F.3d 606, 642 (5th Cir. 2002), cert. denied,

537 U.S. 1192 (2003).    Boidi has not countered this argument and no

counter is obvious.      Thus, the RICO conviction stands whether or

not a possession conspiracy conviction is substituted on remand;

but the RICO sentence--indeed, all of the sentences imposed on

Boidi--will likely have to be recomputed.

           The effect of vacating the drug conspiracy conviction on

the communications facility conviction is more complicated. In the


                                     -15-
indictment, the communications facility charge was tied to the

conspiracy count, and the district court instructed the jury that

it had to find that Boidi knowingly and intentionally used a

communications facility to cause or facilitate the drug traffic

offense charged in count 5 (the conspiracy).   Thus, presumptively

our vacation of the latter conviction undoes the former as well.

          The government says that the communications conviction

can be supported by a conviction for conspiracy to possess and so

should be reinstated on remand if that conviction is substituted.

But conspiracy to possess is a misdemeanor under federal law,6 and

so cannot supply the requisite felony to support the conviction, 21

U.S.C. §§ 843(b), 802(13); United States v. Baggett, 890 F.2d 1095,

1098 (10th Cir. 1989), although it could be re-tried if the

government retries the original conspiracy charge or otherwise

permissibly satisfies the felony predicate requirement.

          Where multiple convictions are entered, the sentences are

often driven by the most serious of the crimes; RICO, of course, is

a serious crime but its sentence often reflects the underlying


     6
      21 U.S.C. §§ 844, 846; see Lopez v. Gonzales, 549 U.S. 47,
52-54 & n.4, 59-60 (2006); Ruhbayan, 406 F.3d at 295-96; United
States v. Stone, 139 F.3d 822, 830 (11th Cir. 1998); United States
v. Foree, 43 F.3d 1572, 1574 (11th Cir. 1995); United States v.
Sikes, No. 93-50084, 1994 WL 1260, at *3 (9th Cir. Jan. 3, 1994)
(unpublished); United States v. Johnson, Nos. 92-5459, 92-5477,
1993 WL 133801 (6th Cir. Apr. 28, 1993) (unpublished); cf. 18
U.S.C. § 3559(a). United States v. David might appear to the
contrary but seemingly the section 843(b) charge there was in fact
tied to a conspiracy to possess with intent to distribute. 940
F.2d 722, 736 (1st Cir. 1991), cert. denied, 504 U.S. 955 (1992).

                               -16-
predicate acts.   U.S.S.G. § 2E1.1.   A preliminary look suggests

that without the present drug conviction, Boidi might enjoy a lower

ultimate sentence and that the sentences on all of the counts could

be affected; what the outcome would be if the possession conspiracy

conviction is substituted can be addressed by the district court

and parties on remand if and when necessary.

          The convictions on counts 5 and 6 are vacated; the

convictions on the remaining counts are affirmed.      All of the

sentences are vacated.   The case is remanded for proceedings not

inconsistent with this opinion.

          It is so ordered.




                               -17-
                                     ADDENDUM

               Conspiracy cases, other than replicas of this case,

recognizing or assuming that lesser conspiracies can be included in

greater ones include Johnson v. United States, No. 06-1316-pr, 2009

WL 535973, at *1 (2d Cir. 2009) (unpublished) (government conceded

conspiracy to distribute is lesser included offense of conspiracy

to distribute and possess with intent to distribute within 1000

feet of a school for Double Jeopardy purposes); United States v.

Moore, 525 F.3d 1033, 1038-39 (11th Cir. 2008) (conspiracy to

accept illegal gratuity lesser included offense of conspiracy to

commit bribery); United States v. Thomas, 182 F. App'x 147, 147-48

(4th     Cir.    2006)     (unpublished)      (conspiracy       to     manufacture

methamphetamine       lesser    included      offense      of    conspiracy      to

manufacture 50 grams of methamphetamine within 1000 feet of a

school); United States v. Smith, 43 F. App'x 529,                    532 (4th Cir.

2002) (unpublished) (conspiracy to commit unarmed bank robbery

lesser    included    offense    of    conspiracy     to   commit      armed   bank

robbery); United States v. Bias, Nos. 96-50483, 96-50499, 1998 WL

708772, at *1 (9th Cir. Oct. 6, 1998) (unpublished) (same); United

States v. Dietz, No. 93-8073, 1994 WL 319259, at *1 (10th Cir. June

30,    1994)    (unpublished)   (conspiracy      to   transport       wildlife   in

interstate      commerce    lesser    included   offense    of   conspiracy      to

export).




                                       -18-
