United States v. Harold E. Nichols

Harold Nichols was convicted of one count of conspiracy to defraud the United States, three counts of tax evasion and two counts of using a false social security number. He challenges the district court’s refusal to give a lesser included offense instruction regarding the crime of failure to file a tax return. We affirm.

A defendant is entitled to an instruction on a lesser included offense if: (1) “the offense on which the instruction is sought is a lesser included offense of the offense charged” and (2) “the jury rationally could conclude that the defendant was guilty of the lesser included offense but not the greater.” United States v. Pedroni, 958 F.2d 262, 267-68 (9th Cir.1992). We consider the first requirement de novo and review the district court’s resolution of the second for abuse of discretion. United States v. Torres, 937 F.2d 1469, 1476 (9th Cir.1991).

An offense is a lesser included offense of the offense charged where “the elements of the lesser offense are a subset of the elements of the charged offense.” Schmuck v. United States, 489 U.S. 705, 716 , 109 S.Ct. 1443, 1450 , 103 L.Ed.2d 734 (1989). No instruction is to be given “[w]here the lesser offense requires…