United States v. Donald Jay Gregory

Donald J. Gregory appeals his conviction for one count of bank robbery in violation of 18 U.S.C. § 2113 (a). Gregory contends that the district court erred by not instructing the jury on the lesser included offense of bank larceny and by not suppressing identification evidence and statements elicited by police questioning.

I

LESSER INCLUDED OFFENSES

Gregory contends that the district court erred by refusing to give the jury his requested instruction on the offense of bank larceny, 18 U.S.C. § 2113 (b), as a lesser offense necessarily included in bank robbery, 18 U.S.C. § 2113 (a). Federal Rule of Criminal Procedure 31(c) provides that “[t]he defendant may be found guilty of an offense necessarily included in the offense charged.” Whether one offense is “necessarily included” in another is reviewed de novo. United States v. Brown, 761 F.2d 1272, 1278 (9th Cir.1985).

Our circuit originally held that a lesser included offense is one that possesses an “inherent relationship” to the greater crime charged. See United States v. Lopez, 885 F.2d 1428, 1436 (9th Cir.1989). Our “inherent relationship” test, however, has been rejected by the Supreme Court in Schmuck v. United States, -…