United States v. Anthony Gilbert Muniz

Anthony Muniz appeals his conviction of assault with intent to commit murder, 18 U.S.C. § 113(a), and conveyance of a weapon within a federal correctional institution, 18 U.S.C. § 1792 .

Muniz’s conviction results from the events surrounding the assault of a fellow inmate, Frank Zarate. Zarate was stabbed one morning around 8 a. m. with a nine-inch knife as he lay asleep in his cell. He suffered multiple stab wounds in the neck and chest, with one of the chest wounds resulting in a partial collapse of a lung.

I

Muniz first cites as error the trial court’s refusal to give a requested instruction that would have allowed the jury to find Muniz guilty of the lesser included offense of assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. § 113 (c).

The test for determining whether a defendant was entitled to an instruction on a lesser included offense follows:

United States v. Johnson, 637 F.2d 1224, 1233-34 (9th Cir. 1980).

It is established that section 113(c) may be a lesser included offense of section 113(a). United States v. Stolarz, 550 F.2d 488, 491 (9th Cir. 1977), cert. denied, 434 U.S. 851 , 98 S.Ct. 162 , 54 L.Ed.2d 119 . Thus, the…