United States of America, Cross-Appellee v. Alvin Barker

ORDER AMENDING OPINION AND DENYING REHEARING

The opinion filed August 13, 1993, slip op. 8761, and appearing at 1 F.3d 957 (9th Cir.1993), is amended as follows:

Slip Opinion at 8767-68, 1 F.8d at 959-60:

Delete the text following the citation to United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.1977), cert. denied, 434 U.S. 1047 , 98 S.Ct. 893 , 54 L.Ed.2d 798 (1978). Beginning, a new paragraph, insert the following:

Any other holding would lead to an impermissible result if a jury did not return a guilty verdict on the possession portion of the crime. The government would be precluded from proving an essential element of the charged offense, and the district court would breach its duty to instruct the jury on all the essential elements of the crime charged. See United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985) (the government is “entitled to prove the[ ] elements of the charged offenses by introduction of probative evidence”); United States v. Combs, 762 F.2d 1343, 1346 (9th Cir.1985) (“When a person is prosecuted under a statute, the requirements of the statute should be explained to the jury so that they may determine whether or not the defendant’s conduct…