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680

Lesser Included Offenses Under 18 U.S.C. § 1153

In Keeble v. United States, 412 U.S. 205 (1973), the Supreme Court held that an Indian defendant charged with a major crime violation under 18 U.S.C. § 1153, was entitled to request and receive an instruction on a lesser included offense not enumerated in that section, even though he could not have been charged with such an offense in the first instance. The Court felt this result was compelled by 18 U.S.C. § 3242, which provides that Indians charged with violations of 18 U.S.C. § 1153 shall be "tried in the same manner as are all other persons committing such offense within the exclusive jurisdiction of the United States."

If the jury returns a verdict of guilt upon the lesser offense, the court has jurisdiction to impose sentence for the lesser offense even though it would not have had jurisdiction over the offense initially. The rationale is that this result must have been intended by the Supreme Court when it handed down the ruling in Keeble. See United States v. Bowman, 679 F.2d 798 (9th Cir.), cert. denied, 459 U.S. 1210 (1983); United States v. John, 587 F.2d 683 (5th Cir. 1979); United States v. Felicia, 495 F.2d 353, 355 (8th Cir.), cert. denied, 419 U.S. 849 (1974). See also United States v. Walkingeagle, 974 F.2d 551 (4th Cir. 1992), cert. denied, 113 S. Ct. 1818 (1993), holding that the court, after dismissing the felony count under Fed. R. Crim. P. 29(a), retained jurisdiction over a lesser included misdemeanor, and properly submitted it to the jury.

[cited in USAM 9-20.100]