United States v. Charles R. Harary

IRVING R. KAUFMAN, Circuit Judge:

We must decide whether under certain circumstances and upon timely motion, a defendant has the right to have a lesser-included offense, although charged as a separate count in the indictment, withheld from the jury’s consideration when the jury rationally cannot return a verdict of not guilty of the greater offense but guilty of the lesser offense.

Charles Harary appeals from a judgment of conviction for giving a gratuity to an Internal Revenue Agent in violation of 18 U.S.C. § 201(f), after a second jury trial before Judge Metzner. Ha-rary, who was charged in…