FEDERAL LESSER INCLUDED OFFENSES CHECKLIST
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Introduction And Caveats: This checklist is a comprehensive annotation of lesser included offenses, however please read the following caveats:

CAVEAT I: Further independent research beyond this checklist should be conducted because this checklist is limited to included offenses which have been recognized by judicial decisions under the statutory elements of the offense. Therefore, consideration should always be given as to whether:

1. The charged offense contains a lesser included offense which has yet to be recognized in a published judicial decision, and/or

2. The elements of the offense, as charged, include a lesser offense even though the statutory elements do not.

CAVEAT II: Independent verification of the material in this checklist should always be made before relying on it.

    Rule 31(c) of the Federal Rules of Criminal Procedure provides: "The defendant may be found guilty of an offense necessarily included in the offense charged." The rule has been authoritatively expounded by the Supreme Court.  (Schmuck v. United States, 489 U.S. 705, 103 L. Ed. 2d 734 , 109 S. Ct. 1443 (1989).)  Analysis begins with the statutory elements of the offense. The Court teaches that the focus must be on the statutory elements of the offense. The proper test is whether the elements required to establish a violation of the greater crime necessarily encompass the elements required to establish a violation of the lesser crime.  (Id. at 716.)

    In Sansone v. United States, 380 U.S. 343, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965), the United States Supreme Court held that a lesser-included-offense charge must be given (1) only if the evidence justifies it and (2) only where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser included offense.

    There is no need to instruct on lesser included offense where defendant could not have been found guilty of that offense.  "A district court's failure to instruct on a lesser included offense is not error where a reasonable jury could not have found the defendant guilty of the lesser offense."  (United States v. . Young, 936 F.2d 1050 (9th Cir. 1991).)

    Entitlement to an instruction on lesser included offenses exists only if the theory is supported by law and has some foundation in the evidence. Id. Entitlement turns on a two step process. First, the defendant must identify the lesser included offense. Second, the defendant must demonstrate that a rational jury could find the defendant guilty of the lesser included offense but not the greater.  (United States v. Linn, 880 F.2d 209, 218 (9th Cir. 1989).)  This second prong has been restated as requiring that a rational jury could not convict a defendant of any lesser offense without relying on the precise evidence which establishes guilt of the offense charged.  (Id.)