U.S. v. Stolarz, 76-1857

• Decision Date: 17 March 1977
• Docket Number: No. 76-1857,76-1857
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John D. STOLARZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 488

550 F.2d 488

UNITED STATES of America, Plaintiff-Appellee, v. John D. STOLARZ, Defendant-Appellant.

No. 76-1857.

United States Court of Appeals, Ninth Circuit.

March 17, 1977.

George R. Nock, Associate Professor, University of Puget Sound School of Law, Tacoma, Wash., for defendant-appellant.

Robert M. Taylor, U. S. Atty., John S. Obenour, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before TRASK and ANDERSON, Circuit Judges, and WOLLENBERG, ^* District Judge.

WOLLENBERG, District Judge:

While a prisoner at the United States Penitentiary at McNeil Island, Washington, appellant was charged in a one count indictment with assaulting another prisoner with intent to commit murder in violation of 18 U.S.C. § 113(a). Over his objection, the jury was instructed that they might find him guilty either of the offense charged or the lesser included offense of assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. § 113(c). The jury found appellant not guilty of the crime charged in the indictment, but found him guilty of the lesser included offense. We affirm. ¹

I. Lesser Included Offense.

At trial, the victim testified that appellant was his assailant. One inmate testified that appellant had admitted to him that he had stabbed the victim. Another inmate testified that appellant asked him to be on the lookout for correctional officers while "he did something" to the victim and that appellant shortly thereafter told him that he had "got" the victim by a stabbing. Appellant denied the stabbing and denied the conversations with the two inmates who had testified on behalf of the government. An inmate witness called on his behalf testified that the victim had stated in a conversation that his assailant was unknown. Another inmate testified that he had witnessed the stabbing and that appellant was not the assailant.

At the government's request and over the objection of the appellant, the trial judge instructed the jury that they were permitted to find appellant guilty of the lesser included offense of assault with a dangerous weapon with intent to do bodily harm. The principle argument advanced in this appeal is the impropriety of permitting the jury to consider this charge. ²

Appellant's first argument is that the offense defined by 18 U.S.C. § 113(c) can never be a lesser included offense when a defendant is charged only with violating 18 U.S.C. § 113(a). He reasons that a conviction under Section 113(c) requires proof of the use of a dangerous weapon while an assault with intent to commit murder under Section 113(a) may be committed without using a dangerous weapon. Relying on the commonly accepted statement that a lesser included offense "must not require some additional element not needed to constitute the greater offense," ³ he concludes that the statutory definitions of the two crimes precluded the giving of a lesser included offense instruction to the jury.

We cannot accept appellant's mechanistic approach to the determination of this question. "To determine that two offenses in a given case are in the relation of greater offense and lesser included offense is not as simple as defining the elements of the two offenses separately and laying them side by side, for this area of the law is encrusted with much ancient lore." United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 318 (1971). After consideration of the language of Rule 31(c), Federal Rules of Criminal Procedure, and prior cases, the Whitaker court concluded that the proper test is whether there is an "inherent" relationship between the greater offense and the crime alleged to be a lesser included offense. By this, the court meant that the two offenses "must relate to protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense." Id. at 319. We are in accord with this description of the test for determination of a lesser included offense and proceed to apply it to the offenses involved herein.

It is clear that both Section 113(a) and Section 113(c) relate to the protection of the same interest in preventing and punishing assaults within federal jurisdictions. The statute is worded in such a way that the two sections in question here even appear as two possible punishments depending on the severity of the assault and the intent behind it rather than as two definitely distinct offenses. ⁴ While all assaults with intent to commit murder do not involve the use of a dangerous weapon, it cannot be denied that such assaults are commonly perpetrated by the use of dangerous weapons. This is not to say that Section 113(c) is always a lesser included offense of Section 113(a). Cf. United States v. Kearney, 162 U.S.App.D.C. 110, 498 F.2d 61, 64 (1974). It does mean that we reject appellant's contention that Section 113(c) can never be a lesser included offense when a defendant is charged with violating Section 113(a).

Appellant points out that the Whitaker decision was in favor of a defendant whose request for a lesser included offense instruction had been denied by the trial judge. He contends that the "inherent" relationship test may be invoked only to aid a defendant and that the government may obtain a lesser included offense instruction only when the lesser offense must necessarily be included in the charged offense under the statutory definition of the latter. We cannot read into the Whitaker opinion such a proposition. The "inherent" relationship test refers to the problem of defining a crime to be a lesser included offense and is equally relevant no matter which party in the case requests a lesser included offense instruction. The more stringent standards pertaining to the government's request for such an instruction apply to the question of notice to the defendant that, in a particular case, the charging of one offense includes the possibility of conviction on another offense. The Whitaker decision discussed this issue separately from the definitional problem involved with the "inherent" relationship test. 447 F.2d at 319-321. See also United States v. Brewster, 165 U.S.App.D.C. 1, 506 F.2d 62, 74 (1974).

In this case, there was ample notice to the defendant that he might face a charge under Section 113(c). Any defense attorney is on notice that a lesser included offense instruction may be given pursuant to Rule 31(c). The defense here was also on notice of the similar language of the two offenses, the close relationship of the two offenses in the text of the statute, and the logical relationship of the two offenses. Cf. United States v. Brewster,supra, 506 F.2d at 74-75. The language of the indictment itself charged the use of a knife in the assault, and the government's case never contended that the assault was perpetrated by any other means, so appellant was even given specific notice of the particular dangerous weapon alleged to be involved. ⁵ Appellant cannot claim that his defense presented at trial was prejudiced by the charge to the jury of an offense not charged in the indictment, for his defense that he was not the person who stabbed the victim was equally applicable to either offense presented in the jury instructions.

Before a lesser included offense instruction may be given, there must be some evidence which would justify conviction for that offense. In addition, such an instruction is proper only when "the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense." Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). Appellant argues that since the evidence shows that the victim was assaulted with a dangerous weapon, in this case the element differentiating the two charged offenses is the nature of the intent necessary to support a conviction. He argues that the evidence shows only an intent to kill and that there is no evidence of an intent to do bodily harm (short of the bodily harm of murder). It also follows from his argument that there was no dispute over the factual elements that differentiates the two charged offenses and he asserts that "the prosecution cannot go to the jury, over the objection of the defendant, on both the lesser and the greater offense unless an element which distinguishes the two is disputed." United States v. Harary, 457 F.2d 471, 478 (2d Cir. 1972).

Unlike the Harary case, appellant herein denied having the intent necessary for conviction on either of the charged offenses and the jury was required to determine whether the defendant stabbed the victim and, if so, with what intent. Appellant argues that the nature of the weapon and of the attack on the victim leave no doubt that the assault was committed only with the intent to murder. However, despite appellant's somewhat sarcastic derogation of the government's argument on this issue we cannot say, based upon the evidence introduced at the trial, that the jury's finding of an intent to do bodily harm short of murder was unreasonable. Cf. United States v....