United States of America v. Abdullahi Nur

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

-- 1 of 14 --

- 2 -
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 of 14 --

- 3 -
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 of 14 --

- 4 -
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 of 14 --

- 5 -
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 of 14 --

- 6 -
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 of 14 --

- 7 -
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 of 14 --

- 8 -
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 of 14 --

- 9 -
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 of 14 --

- 10 -
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 of 14 --

- 11 -
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 of 14 --

- 12 -
(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 of 14 --

- 13 -
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 of 14 --

- 14 -
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 of 14 --