The People of the Territory of Guam v. Doris P. Rosario

On Appeal from the District Court of Guam Appellate Division.

Before MERRILL and GOODWIN, Circuit Judges, and SCHNACKE, District Judge.

Rosario was charged, in a two-count indictment, with (1) unlawfully, knowingly and intentionally delivering a narcotic drug, and (2) unlawfully possessing such a drug with the- intent to deliver and dispense.

After the jury had been instructed, but before it retired to consider its verdict, the trial judge suggested that the lesser included offense instruction be given as to the second count. No such instruction had theretofore been requested as to either count. After the suggestion of the trial judge, defendant agreed that the instruction should be given as to the second count, but urged it also be given as to the first count, stating that “possession” is a lesser included offense within “delivery”. This request was denied; the lesser included offense instruction was given only as to count two, and the jury found defendant guilty of the lesser offense. Defendant was found guilty as charged in count one.

In Olais-Castro v. United States, 416 F.2d 1155 (9th Cir. 1969), this court discussed the meaning of “lesser included” and…