Can a defendant respond to an indictment by pleading guilty to a lesser included charge?

If the framers of the rules had intended to allow a defendant to respond to an indictment by pleading guilty to a lesser offense, we believe they would have used language consistent with that intention. That the authors of the rules were sufficiently knowledgeable to insert such language, if they so desired, is demonstrated by the use of similar language in Rule 31(c),² which provides that a defendant, after trial, may be found guilty of a lesser included offense. Where a term has been carefully employed in one place and excluded in another, it should not be implied where excluded. City of Burbank v. General Elec. Co., 329 F.2d 825 (9th Cir. 1964).

Rule 31, which allows the trier of fact to find a defendant guilty of a lesser included offense, is no authority for the procedure followed by the respondent herein. A verdict under Rule 31 is entered only after the litigation of the factual issues raised in the indictment. It should be noted that, under

[438 F.2d 1164]

the Constitution,³ the government, as well as the defendant, has the right to insist upon a jury determination of those facts. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The practice utilized by the respondent would terminate a criminal proceeding prior to the resolution of the factual issues raised by the indictment and would deprive the government of the right of trial by jury. In short, the government would be denied the opportunity to prove the allegations in the indictment and the defendant would be relieved of the responsibility of entering a plea responsive to that indictment. Such a procedure is contrary to the stated purposes of the rules in question.

[438 F.2d 1164]