concurring in part and dissenting in part:
I concur in part I of the majority opinion. Because I do not believe that a lesser-included offense instruction was necessary, I *1329respectfully dissent from part II and from the judgment.
“Entitlement to a lesser-included offense instruction turns on completion of a two-step process. ‘First, the defendant must identify the lesser-included offense. Second, the defendant must demonstrate that a rational jury could find the defendant guilty of the lesser included offense but not the greater.’ ” United States v. Linn, 880 F.2d 209, 218 (9th Cir.1989), quoting United States v. Pace, 833 F.2d 1307, 1314 (9th Cir.1987), cert. denied, 486 U.S. 1011, 108 S.Ct. 1742, 100 L.Ed.2d 205 (1988). In Linn, we held that no lesser-included offense instruction was necessary because “[a] rational jury could not have convicted appellant of any lesser-included offense without relying on the precise evidence which establishes [his] guilt of the offenses charged.” 880 F.2d at 218.
Sotelo contends that he was entitled to an instruction on the lesser-included offense of possession with intent to distribute less than 100 kilograms of marijuana. However, he has failed to demonstrate that a rational jury could find him guilty of this offense without relying upon the precise evidence which establishes his guilt of the greater offense. If the jury believed that Sotelo possessed the three bales of marijuana found in his van, they must have believed that he was in the process of moving the marijuana from the Blazer to the van. The facts dictate this conclusion. The arresting agents testified that they observed an individual moving back and forth between the Blazer and the van. So-telo was the only individual present at the scene. He had the keys to the Blazer in his pocket. The backs of both vehicles were open, and three bales of marijuana from the Blazer were found in his van.
Under these circumstances, no rational jury could conclude that Sotelo exercised dominion and control over the three bales of marijuana found in his van without first finding that he exercised dominion and control over all of the marijuana when he began to unload the Blazer.
Although Sotelo may not have taken actual physical possession over the two bales of marijuana that remained in the Blazer, “[t]he Government may demonstrate dominion and control by proof of ... constructive possession.” United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir.1988). “A person has constructive possession of an object if he has sufficient dominion and control to give him the power of disposal.” Id. At the time Sotelo began to unload the marijuana from the Blazer, he had the power to dispose of all five bales of marijuana. Moreover, “a defendant’s exclusive dominion over property on which contraband is found is strong circumstantial evidence of possession.” United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988). Sotelo had exclusive control over the van and the Blazer at the time of his arrest. A finding that he possessed all five bales of marijuana necessarily follows. “What is fairly inferable from the evidence must be based on reason, calling on the understanding imparted by experience.” United States v. Thornton, 746 F.2d 39, 48 (D.C.Cir.1984), quoting United States v. Sinclair, 444 F.2d 888, 890 (D.C.Cir.1971).
In Thornton, the District of Columbia Circuit held that a lesser-included offense instruction on simple possession of heroin was properly denied when the evidence revealed that a much larger cache of heroin was located within “easy reach” of the defendant. 746 F.2d at 48. The court stated that “[a] reasonable jury, examining all the evidence, simply would not totally ignore the large cache of heroin and base its verdict solely on the small quantity....” Id. Similarly, I would hold that a rational jury could not ignore the doctrine of constructive possession and find Sotelo guilty of possessing less than 100 kilograms of marijuana.
I would affirm the judgment of conviction.