Defense Request of Lesser Included Offense Instruction Precludes Questioning Sufficiency of Conviction (10/3/17)

In United States v. Hurley, 2017 U.S. App. LEXIS 17217 (9th Cir. 2017) (nonpublished), CA9 here and GS here, Hurley, a former IRS agent, was convicted for receiving a gratuity under 18 USC. § 201(c).  As the Court of Appeals explains in the cryptic nonpublished decision, this conviction was for a lesser included offense to the more serious offense actually charged (solicitation of bribery).  Hurley questioned on appeal whether the evidence was sufficient to support the conviction on the lesser included offense.  The Court held

Hurley is precluded from challenging the jury's verdict regarding this crime because he asked that the jury be permitted to consider it as a lesser included offense on this count. United States v. Butler, 74 F.3d 916, 918 n.1, 924 (9th Cir. 1996) (rejecting argument that conviction on lesser included offense was improper when defendant himself requested the challenged instruction). Even if Hurley received nothing of value on the day he allegedly solicited the $20,000, his actions at trial invited any error in the verdict. See United States v. Frank, 36 F.3d 898, 903 (9th Cir. 1994) ("The doctrine of invited error prevents a defendant from complaining of an error that was his own fault." (citation omitted)).

The use of lesser included offense instructions to give the jury a point between the normal binary choice of guilt or innocence to the more serious offense charged is an interesting topic.  I discuss that topic in more detail in the chapter, Chapter 12, Criminal Penalties and the Investigation Function, for which I was principal draftsman in Michael Saltzman and Leslie Book, IRS Practice and Procedure (Thomsen Reuters 2015).  I offer the following from the introduction in ¶ 12.05[3][b][i] (footnotes omitted):

The doctrine is most frequently encountered at the close of a trial for a greater offense when one of the parties wants the jury to have a choice in addition to guilt or acquittal on the charged greater offense. Why would either the prosecutor or the defendant want to present to the jury this additional choice? The prosecutor may be concerned that he has not proved all elements of the greater offense beyond a reasonable doubt or that the jury may not be willing to convict for the charged greater offense but, the prosecutor fears, will return a verdict of acquittal unless given a lesser alternative. The defendant may assess the risks differently. The defendant may be concerned that the jury will convict of the greater offense rather than acquit, but would convict only of the lesser offense if offered that opportunity. 

If the jury properly determines that one or more uncommon elements of the greater offense were not proved beyond a reasonable doubt, but that all of the common elements were proved, a conviction for the lesser included offense works just as the lesser included offense doctrine is intended to work. It permits the jury to convict for the lesser offense because the lesser offense was proved beyond a reasonable doubt. But a fear expressed with presenting to the jury an alternative between conviction and acquittal is that it will permit a jury to compromise. Moreover, even in a case where the jury believed the elements of the greater offense were proved, the jury may think the law simply wrong and effectively nullify it in the case by returning a verdict of not guilty. Offering the compromise verdict may effectively mitigate the benefits or harms (depending on perspective) of occasional jury nullification. And perhaps the greatest concern — a concern of constitutional dimensions — arising from a failure to give a lesser included offense choice to the jury where it is appropriate is that without that choice the jury may convict where it is convinced that the defendant did something seriously wrong and worth punishing even though it is not convinced that he is guilty of the crime charged.

I had not previously considered the issue of whether the lesser included offense presented to the jury at the defendant's request would preclude the defendant from questioning whether the evidence supported a conviction of the lesser included offense.  Apparently it does.

I attach the Government's brief, here, which, at pp. 47-52, the Government discusses the authority the Ninth Circuit accepted summarily.

Because Hurley asked for the lesser included offense instruction, the Court sustained a conviction that the evidence apparently did not support.  That is a bit odd.  It seems to me that the time to hash out whether there is a sufficient record to permit the instruction is at the close of trial.