Earlier this month, the Sixth Circuit Court of Appeals, in U.S. v. LaPointe, 2012 FED App. 11-5194 (6th Cir.), remanded the decision of the trial court where the defendant was originally charged with "conspiring to distribute or conspiring to possess with the intent to distribute oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (2) attempting to possess oxycodone with the intent to distribute in violation of 21 U.S.C. § 846." He was convicted on both counts and sentenced to sixty-three (63) months for each count to run concurrently.
LaPointe appealed both counts and won his appeal on Count I based on the denial of the lower court to allow jury instruction of the lesser included offense of conspiracy to possess. The lower court argued that the charge of conspiracy to distribute did not always include conspiracy to possess. However, the appellate court found that the Indictment of LaPointe described Count I as conspiracy to possess with intent to distribute which has always been held to include the lesser offense of conspiracy to possess. The appellate court reasoned that conspirators can have different objectives during the commission of a crime, and a defendant has the right for the jury to hear the lesser-included offenses so long as said offense meets the Colon standard which is the following:
• A proper request is made
• The elements of the lesser offense are identical to part of the elements of the greater offense
• The evidence would support a conviction on the lesser offense
• The proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on the lesser offense. See United States v. Colon, 268 F.3d 367, 373 (6th Cir.2001).
LaPointe's Count I conviction was reversed and remanded back to the lower courts to issue an opinion consistent with the appellate court's ruling.