United States v. Boidi , 568 F.3d 24 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 07-1527
UNITED STATES OF AMERICA,
Appellee,
v.
SCOTT BOIDI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin and Lipez, Circuit Judges,
and Singal,* District Judge.
Robert L. Sheketoff with whom David R. Yannetti was on brief
for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
June 3, 2009
*
Of the District of Maine, sitting by designation.
BOUDIN, Circuit Judge. A federal jury convicted Scott
Boidi on six criminal charges relating to his embezzlement of union
funds and drug conspiracy; he was sentenced to concurrent 84 month
sentences on two of the counts--racketeering and conspiracy to
possess with intent to distribute drugs--and lesser concurrent
sentences on other counts. He now appeals, attacking the drug
conspiracy conviction and (indirectly) two other convictions
potentially dependant on the drug conspiracy conviction. He does
not contest his conviction on three counts that charged only
embezzlement.
The facts, focusing on the drug conspiracy charge, are
taken from the trial. During the relevant period, approximately
January 2000 through June 2002, Scott Boidi was the union business
manager for Tunnel Workers Local 88 in Quincy--an elected position
he had held since 1991--but some time in 2001 he developed a
serious cocaine addiction. He began to steal union funds to feed
his drug habit, taking dues money from the union and seeking
unwarranted reimbursements to buy cocaine.
Boidi's wife twice expelled him from the house and, not
long after the second eviction, Boidi took up with Lynne DeMita, a
childhood acquaintance. In November 2001, Boidi moved into
DeMita's home in Rockland, Massachusetts. According to DeMita,
they were together as a couple living in various locations until
roughly May or June 2002. At Boidi's trial, DeMita testified that
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during their time together, Boidi bought cocaine daily, sometimes
two or three times per day.
DeMita claimed to have been present "99% of the time"
when Boidi bought the drugs. The purchases took place at various
locations, including the union hall, her home in Rockland, a
Copeland Street apartment in Quincy, friends' homes, and hotels.
DeMita said that, while she never paid for the cocaine, Boidi gave
it to her all the time and that he also shared with other friends
including Steve Zigliano, Michael "Mickey" Cochran, Eddie Silva,
Tommy Bellotti, and his brother Alan.
There was other uneven testimony as to Boidi's sharing.
Cochran confirmed that he had used cocaine with Boidi, but he said
that their use had been infrequent and he was unsure whether Boidi
had ever provided the cocaine. Thomas Brennan said that he had
used cocaine with Boidi but that Boidi did not provide it. Dominic
Mazzeo testified to having shared cocaine that Boidi brought to the
union hall.
Boidi and DeMita's usual suppliers were Rafael "Ralph"
Soto and his friend Hector Vega. Soto said that he sold to Boidi
repeatedly over the course of three or four months. For the first
month and a half Boidi would buy three grams three times per day
but purchases then slowed as Boidi ran short of funds; the largest
amount he ever purchased at one time was fifteen grams, or half an
ounce, which he explained by saying that he took "care of his
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people that worked for him." Soto said that DeMita frequently was
with Boidi during the purchases and that he had seen DeMita, Boidi,
Belotti and Zigliano use the cocaine.
Vega, who sometimes worked as a runner for Soto,
testified that he sold Boidi a minimum of three grams of cocaine
per order, usually three to five days per week, one to three times
per day over a period of three to four months. Vega said that
Boidi was generally alone when he bought the cocaine, although he
had once seen Boidi give some to another person. Vega also recalls
conversations where he and Boidi discussed "stepping on" the
cocaine (i.e., diluting it)--potentially for further distribution.
The sales eventually came to an end, and Boidi was
committed at Bridgewater State Hospital from late March 2002 until
mid-April 2002; he also received inpatient substance abuse
treatment at Bournewood Hospital during most of June 2002, after
which he received outpatient treatment. In July 2002 he took out
a restraining order against DeMita, apparently claiming that she
was harassing him. In due course, the embezzlement scheme
unraveled and Boidi became the subject of extensive investigation.
By a nine-count superceding indictment on September 21,
2005, Boidi was charged with racketeering (count 1), 18 U.S.C. §
1962(c) (2006), three counts of embezzlement of union assets
(counts 2-4), 29 U.S.C. § 501(c) (2006); conspiracy to possess with
intent to distribute 500 or more grams of cocaine (count 5), 21
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U.S.C. §§ 846, 841(b)(1)(B)(ii)(II) (2006), and use of a
communication facility to facilitate a drug crime (count 6), 21
U.S.C. § 843(b). The remaining three counts are not pertinent.1
After a lengthy jury trial, Boidi was found guilty on the
six counts just listed and given concurrent sentences of which the
two longest were 84 months. Boidi now appeals, challenging only
the district court's failure to give a requested lesser included
offense instruction as to the drug conspiracy count; but he also
argues that reversal on this conviction would bring down the RICO
and communications facility convictions.
A "defendant may be found guilty of . . . an offense
necessarily included in the offense charged," Fed. R. Crim. P. 31,
and a defendant is entitled to such an instruction where (1) the
lesser offense is "included" in the offense charged, United States
v. Ferreira, 625 F.2d 1030, 1031 (1st Cir. 1980), (2) a contested
fact separates the two offenses, id., and (3) "the evidence would
permit a jury rationally to find [the defendant] guilty of the
lesser offense and acquit him of the greater." Keeble v. United
States, 412 U.S. 205, 208 (1973).
1
Boidi was ultimately acquitted as to using and carrying a
firearm during and in relation to a drug trafficking crime (count
7), 18 U.S.C. § 924(c)(1)(A), obstructing a proceeding of the
National Labor Relations Board (count 8), id. § 1505, and
persuading a person to lie to a federal grand jury (count 9), id.
§ 1512(b)(1).
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Precedent says that we review de novo the decision
whether to give a lesser included offense instruction. United
States v. Flores, 968 F.2d 1366, 1367-68 (1st Cir. 1992). That is
clearly right as to whether a second crime is a lesser included
offense; some circuits then give deference to the district court's
judgment as to whether the jury could rationally find the defendant
guilty of the lesser offense but acquit him of the greater. E.g.,
United States v. Upton, 512 F.3d 394, 402 (7th Cir.), cert. denied,
129 S. Ct. 39 (2008). The district judge did not reach the latter
issue here.
The government does not dispute that possession is a
lesser included offense of possession with intent to distribute,
e.g., Custis v. United States, 511 U.S. 485, 488 (1994); United
States v. Ciampa, 793 F.2d 19, 27 (1st Cir. 1986), but says that
conspiracy to commit each crime is distinguishable: it argues that
an agreement to possess is a different agreement and not a lesser
included version of an agreement to possess with intent to
distribute. The two different agreements, it says, could easily
turn on different evidence and involve different people.
The district court agreed that conspiracy to possess is
not a lesser included offense of conspiracy to possess with intent
to distribute, explaining that "it would be if we were talking
about the substantive offenses" but that "the government is
entitled to charge[,] at the risk of not being able to prove it, a
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particular agreement as a conspiracy charge." With more time to
ponder the government's position than a trial judge fashioning an
instruction in mid-trial, we take a different view.
The government's own position on the issue, although well
argued here, has not been consistent. In at least one case, United
States v. Moran, Nos. 90-5024, 90-5025, 1991 WL 125461, at *4 (4th
Cir. Oct. 24, 1991) (unpublished), the government took the position
it urges here (and lost); in several others, it was content to
concede the lesser conspiracy was included in the greater. E.g.,
United States v. White, 972 F.2d 590, 596 (5th Cir. 1992), cert.
denied, 507 U.S. 1007 (1993).
In all events, courts that have confronted this or
comparable issues have regularly concluded or assumed that a less
serious conspiracy can be a lesser included offense of a similar
but greater one. This is so both as to drug cases involving the
same issue as our case2 and as to cases (we list many in an
2
United States v. Carroll, 140 F. App'x 168, 169 (11th Cir.
2005) (per curiam) (unpublished); United States v. Ruhbayan, 406
F.3d 292, 295-96 (4th Cir.), cert. denied, 546 U.S. 917 (2005);
United States v. Araujo, No. 98-21008, 2000 WL 309408, at *1 (5th
Cir. Feb. 28, 2000) (per curiam) (unpublished); United States v.
Neely, No. 94-5107, 1996 WL 60329, at *2 (4th Cir.) (unpublished),
cert. denied, 519 U.S. 861 (1996); United States v. Valencia, No.
94-10348, 1995 WL 444658, at *4 (9th Cir.) (unpublished), cert.
denied, 516 U.S. 1001 (1995); United States v. Vaandering, 50 F.3d
696, 703 (9th Cir. 1995); United States v. Underwood, No. 94-5897,
1995 WL 241992, at *1 (6th Cir. Apr. 25, 1995) (unpublished);
United States v. Garcia, 27 F.3d 1009, 1014-15 (5th Cir.), cert.
denied sub nom Chavez v. United States, 513 U.S. 1009 (1994);
United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993), cert.
denied, 510 U.S. 1040 (1994); Moran, 1991 WL 125461, at *4; United
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addendum) involving other kinds of drug or non-drug conspiracies
having an additional element separating a more serious one from a
less serious one. This court has assumed the same in passing,
United States v. Arroyo, 546 F.3d 54, 56 (1st Cir. 2008), but has
not formally decided the issue.
The initial question is an abstract and strictly legal
one: whether, looking to the required elements of a pair of crimes,
the two crimes coincide except that to commit the greater crime, an
additional ingredient (or ingredients) is necessary. That
requirement is satisfied here: a vertical "conspiracy to possess
drugs with intent to distribute" can easily be said to be a
"conspiracy to possess drugs" with one added element, namely, that
the parties also had a shared aim that the possessed drugs then be
distributed.
Of course, to justify the instruction in a particular
case, there must--at a factual level--be some core of facts that is
common to the scenario that the government sought to prove and the
one that the defendant claims to show only a lesser included
offense. If the government charges and seeks to prove a conspiracy
to possess with intent to distribute heroin in New York in 2005 but
the evidence arguably showed only a conspiracy to possess in San
Francisco in 2007, this would call only for an instruction that the
States v. Miller, 939 F.2d 605, 609 (8th Cir. 1991); United States
v. O'Meara, 895 F.2d 1216, 1219-20 (8th Cir.), cert. denied, 498
U.S. 943 (1990).
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jury not convict if the government proves a conspiracy different
than that charged. E.g., United States v. Candelaria-Silva, 166
F.3d 19, 39 (1st Cir. 1999), cert. denied sub nom Ortiz-Miranda v.
United States, 529 U.S. 1055 (2000).
This is a problem that a trial judge might have to sort
out in deciding whether to give a multiple conspiracy instruction,
but it is not remotely present here. Whether one looks at the
greater or lesser crime in this case, the conspirators and drugs
sold to Boidi are identical; the only further question is whether
Boidi intended to distribute the drugs and whether the distributors
shared in that aim as part of the agreement. However this question
is answered, the two offenses relate to the same underlying events.
In arguing here against the requested instruction, the
government says that different witnesses could be needed to prove
the lesser crime; but, in reality, to justify the instruction, the
lesser "included" offense has to be a version of much the same
factual scenario as the greater offense charged in the indictment
with a single difference: that the added element needed for the
greater offense need not be proved. The witnesses that the
government chose to prove the greater offense are the proof of the
lesser included one.
Of course, the government might have different witnesses
who could prove a possession conspiracy involving Boidi that was
substantially different from and not included within the greater
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conspiracy sought to be proved at trial; it could choose to
prosecute for this crime or not, but it would not be a lesser
included offense in this case. The instruction is required only
where the evidence actually presented at trial would itself allow
a rational jury to convict of the lesser offense rather than the
greater one urged by the government. Ferreira, 625 F.2d at 1031.
We therefore hold that a possession conspiracy is a
lesser included offense of a conspiracy to possess with intent to
distribute and that the scenarios here overlap, but the instruction
requires that a further condition be met (it can, as above, be
phrased as two further conditions): that, on the evidence
presented, it would be rational for the jury to convict only on the
lesser included offense and not the greater one. Otherwise the
instruction need not be given. Flores, 968 F.2d at 1371.
The government is right in saying that a jury on this
record could not rationally have doubted that Boidi distributed
drugs to DeMita. Whether or not sharing with a girlfriend is often
so prosecuted, it is as much "distribution" as selling on a street
corner. United States v. Cormier, 468 F.3d 63, 70 n.3 (1st Cir.
2006). Evidence as to Boidi's sharing with or selling to other
persons appears in the record but is not as strong or consistent.
The evidence as to sharing with DeMita came not only from
DeMita's extensive (and possibly unfriendly) testimony but also
from both Soto and Vega and from defense counsel's own cross
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examination of DeMita, which included questions that assumed joint
cocaine use, such as "you liked to smoke it . . . so he needed
more, right?" So Boidi clearly possessed the cocaine with intent
to distribute. If he had been charged and convicted of that
substantive crime, the case would be all over.
Instead Boidi was charged only with conspiracy to commit
the substantive crime. The penalties are the same, 21 U.S.C. §
846, but the government may get evidentiary and atmospheric
advantages by charging conspiracy. Here, it is true that it was
"distribution" to give the drug to a girlfriend; Boidi had a
continuing relationship with the dealers; and they knew that Boidi
was re-distributing the drugs at least to DeMita. Yet, on a close
look, these facts do not necessarily compel a finding that the
charged conspiracy occurred.
The use of conspiracy doctrine in a vertical context has
caused courts unease. In this circuit the continuing purchase and
sale relationship between Soto, Vega and Boidi, and the dealers'
knowledge of Boidi's re-distribution, would permit a jury to infer
both an agreement between them that Boidi possess the drugs and the
requisite intent as to distribution.3 But it would not compel a
jury to find the latter element, because the "intent to distribute"
3
United States v. Moran, 984 F.2d 1299, 1303-04 (1st Cir.
1993). Compare United States v. Hawkins, 547 F.3d 66, 74-75 (2d
Cir. 2008), and United States v. Lechuga, 994 F.2d 346, 350-51 (7th
Cir.) (en banc) (Posner, J.), cert. denied, 510 U.S. 982 (1993).
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had to reflect not only awareness but an agreed purpose of both a
dealer and Boidi.
"Intent" is notoriously a trap term, conflating the
distinction between knowledge and purpose. See United States v.
Tobin, 552 F.3d 29, 32-33 (1st Cir. 2009). But a conspiracy is an
agreement between two (or more) parties having a shared "objective"
or "design" to commit the crime, so mere knowledge by Soto or Vega
as to what Boidi would do with the drugs is not enough unless they
shared Boidi's purpose to re-distribute.4 A main rationale for
making conspiracy a crime is that the shared purpose increases the
likelihood of accomplishment and makes the enterprise more
dangerous. Moran, 984 F.2d at 1302-03; Developments, supra note 7,
at 924-25.
The intent "to further, promote, or cooperate in" the
buyer's illegal activity "is the gist of conspiracy" and "knowledge
is the foundation of intent," but "not every instance of sale of
restricted goods . . . in which the seller knows the buyer intends
to use them unlawfully, will support a charge of conspiracy."
Direct Sales Co. v. United States, 319 U.S. 703, 711-12 (1943).
4
2 LaFave, Substantive Criminal Law § 12.2(c)(6), at 285 (2d
ed. 2003) ("[T]here must be a common design, so that if only one
party to the agreement has the necessary mental state then even
that person may not be convicted of conspiracy."); see
Developments in the Law: Criminal Conspiracy, 72 Harv. L. Rev. 922,
927 (1959).
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Ample circuit authority confirms the need for joint purpose--neatly
summed by the Second Circuit:
Evidence that a buyer intends to resell the
product instead of personally consuming it
does not necessarily establish that the buyer
has joined the seller's distribution
conspiracy. This is so even if the seller is
aware of the buyer's intent to resell. It is
axiomatic that more is required than mere
knowledge of the purpose of a conspiracy.
Hawkins, 547 F.3d at 74; see also Lechuga, 994 F.2d at 349; United
States v. Glenn, 828 F.2d 855, 857-58 (1st Cir. 1987) (Breyer, J.).
Stake and purpose are closely related, and DeMita's share
increased the frequency and quantity of Boidi's purchases. So the
jury here could have found that Soto or Vega had a stake in the
redistribution beyond mere knowledge of it or, put differently,
that re-distribution as well as possession was a joint aim. But,
by contrast to what Soto or Vega's stake would have been if Boidi
were engaged in commercial re-distribution on a large scale, the
inference of joint purpose to re-distribute here is far from
inevitable or compelling.
The required instruction is prompted by a concern that,
deprived of a lesser included option, the jury may stretch to
convict the defendant of the greater crime. Flores, 968 F.2d at
1369; United States v. Balthazard, 360 F.3d 309, 320 (1st Cir.
2004). Here nothing compelled the jury to find that the suppliers
and Boidi were conspiring that Boidi should possess the drugs with
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intent to distribute. The jury could rationally have convicted of
the lesser conspiracy, and the instruction should have been given.
So, the conspiracy conviction cannot stand (although the
government could retry the charge with the required instruction),
so we turn to the consequences. It is clear that the conspiracy
conviction must be vacated, but two separate issues remain: whether
a conviction on the lesser included offense may be substituted
without a new trial or Boidi's consent, and what effects either
vacation or substitution have on two of Boidi's other convictions.
Where a lesser included offense charge should have been
given, several circuits have allowed the district court on remand,
in its discretion and with the government's consent, to enter
judgment of conviction on the lesser included offense where the
jury necessarily found every fact required for conviction of the
lesser offense.5 The premise is that, given the actual conviction
supported by adequate evidence, the best the defendant could have
obtained by the charge is conviction on the lesser included
offense.
The government's answering brief urged that the district
court be given this option; Boidi filed no reply brief and so is
not on record as arguing that the other circuits' approach is wrong
5
United States v. Burns, 624 F.2d 95, 105 (10th Cir.), cert.
denied, 449 U.S. 954 (1980); United States v. Crutchfield, 547 F.2d
496, 502 (9th Cir. 1977); United States v. Whitaker, 447 F.2d 314,
322 (D.C. Cir. 1971); see also United States v. Levy, 703 F.2d 791,
794 n.9 (4th Cir. 1983).
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or contesting this solution here. We think that the approach is at
least colorable but leave Boidi free on remand (if the government
presses the request) to argue that it is mistaken, that the
necessary conditions have not been met or that the district court
ought not allow it for other reasons.
As to the impact of our vacating of the drug conviction
on Boidi's other convictions, Boidi's brief asserts summarily that
the RICO conviction must fall because the drug conspiracy was one
of the predicate acts; but the RICO conviction was supported by the
jury's specific finding that the government had proven five
predicate acts--three acts of embezzlement of union assets plus the
conspiracy and the use of a communications facility to facilitate
a drug crime.
The three embezzlement acts are legally sufficient
predicates and only two are needed to support the RICO conviction.
United States v. Cianci, 378 F.3d 71, 91 (1st Cir. 2004); United
States v. Edwards, 303 F.3d 606, 642 (5th Cir. 2002), cert. denied,
537 U.S. 1192 (2003). Boidi has not countered this argument and no
counter is obvious. Thus, the RICO conviction stands whether or
not a possession conspiracy conviction is substituted on remand;
but the RICO sentence--indeed, all of the sentences imposed on
Boidi--will likely have to be recomputed.
The effect of vacating the drug conspiracy conviction on
the communications facility conviction is more complicated. In the
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indictment, the communications facility charge was tied to the
conspiracy count, and the district court instructed the jury that
it had to find that Boidi knowingly and intentionally used a
communications facility to cause or facilitate the drug traffic
offense charged in count 5 (the conspiracy). Thus, presumptively
our vacation of the latter conviction undoes the former as well.
The government says that the communications conviction
can be supported by a conviction for conspiracy to possess and so
should be reinstated on remand if that conviction is substituted.
But conspiracy to possess is a misdemeanor under federal law,6 and
so cannot supply the requisite felony to support the conviction, 21
U.S.C. §§ 843(b), 802(13); United States v. Baggett, 890 F.2d 1095,
1098 (10th Cir. 1989), although it could be re-tried if the
government retries the original conspiracy charge or otherwise
permissibly satisfies the felony predicate requirement.
Where multiple convictions are entered, the sentences are
often driven by the most serious of the crimes; RICO, of course, is
a serious crime but its sentence often reflects the underlying
6
21 U.S.C. §§ 844, 846; see Lopez v. Gonzales, 549 U.S. 47,
52-54 & n.4, 59-60 (2006); Ruhbayan, 406 F.3d at 295-96; United
States v. Stone, 139 F.3d 822, 830 (11th Cir. 1998); United States
v. Foree, 43 F.3d 1572, 1574 (11th Cir. 1995); United States v.
Sikes, No. 93-50084, 1994 WL 1260, at *3 (9th Cir. Jan. 3, 1994)
(unpublished); United States v. Johnson, Nos. 92-5459, 92-5477,
1993 WL 133801 (6th Cir. Apr. 28, 1993) (unpublished); cf. 18
U.S.C. § 3559(a). United States v. David might appear to the
contrary but seemingly the section 843(b) charge there was in fact
tied to a conspiracy to possess with intent to distribute. 940
F.2d 722, 736 (1st Cir. 1991), cert. denied, 504 U.S. 955 (1992).
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predicate acts. U.S.S.G. § 2E1.1. A preliminary look suggests
that without the present drug conviction, Boidi might enjoy a lower
ultimate sentence and that the sentences on all of the counts could
be affected; what the outcome would be if the possession conspiracy
conviction is substituted can be addressed by the district court
and parties on remand if and when necessary.
The convictions on counts 5 and 6 are vacated; the
convictions on the remaining counts are affirmed. All of the
sentences are vacated. The case is remanded for proceedings not
inconsistent with this opinion.
It is so ordered.
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ADDENDUM
Conspiracy cases, other than replicas of this case,
recognizing or assuming that lesser conspiracies can be included in
greater ones include Johnson v. United States, No. 06-1316-pr, 2009
WL 535973, at *1 (2d Cir. 2009) (unpublished) (government conceded
conspiracy to distribute is lesser included offense of conspiracy
to distribute and possess with intent to distribute within 1000
feet of a school for Double Jeopardy purposes); United States v.
Moore, 525 F.3d 1033, 1038-39 (11th Cir. 2008) (conspiracy to
accept illegal gratuity lesser included offense of conspiracy to
commit bribery); United States v. Thomas, 182 F. App'x 147, 147-48
(4th Cir. 2006) (unpublished) (conspiracy to manufacture
methamphetamine lesser included offense of conspiracy to
manufacture 50 grams of methamphetamine within 1000 feet of a
school); United States v. Smith, 43 F. App'x 529, 532 (4th Cir.
2002) (unpublished) (conspiracy to commit unarmed bank robbery
lesser included offense of conspiracy to commit armed bank
robbery); United States v. Bias, Nos. 96-50483, 96-50499, 1998 WL
708772, at *1 (9th Cir. Oct. 6, 1998) (unpublished) (same); United
States v. Dietz, No. 93-8073, 1994 WL 319259, at *1 (10th Cir. June
30, 1994) (unpublished) (conspiracy to transport wildlife in
interstate commerce lesser included offense of conspiracy to
export).
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