United States v. Francis Stanford Stricker, 4 F.4th 624

Stricker and a dating partner had a physical altercation; the partner alleged Stricker grabbed her neck and choked her until she lost vision and urinated; Stricker admitted pushing but denied strangling.
A grand jury indicted Stricker under 18 U.S.C. § 113(a)(8) for assault by strangling or suffocating a dating partner.
At trial the district court, over Stricker’s general objection to any lesser-included instruction, instructed the jury on the charged offense and on simple assault as a lesser-included offense after Stricker said simple assault would be appropriate if a lesser instruction were given.
The jury acquitted on the strangulation charge and convicted Stricker of simple assault under 18 U.S.C. § 113(a)(5).
On appeal Stricker argued the simple assault instruction was erroneous because simple assault is not a lesser-included offense of assault by strangulation; the government argued Stricker invited any error and, alternatively, the instruction was correct.

Issue	Government's Argument	Stricker's Argument	Held
Whether Stricker waived appellate review of the lesser-included instruction by requesting or agreeing to it	Stricker expressly told court simple assault was the appropriate lesser-included offense, so he invited any error and waived appeal	His agreement was conditional; he maintained an objection that no lesser-included instruction should be given, so issue preserved	Waiver. Court held Stricker invited the instruction and cannot complain on appeal
Whether simple assault is a lesser-included offense of assault by strangulation under the elements test	Elements of simple assault are a subset: both require assault; strangulation adds the particular means, so simple assault is necessarily included	Simple assault can be committed solely by placing a victim in fear (no battery or attempt), so its elements are not always a subset of strangulation	Even on the merits, court held simple assault is a lesser-included offense because the assault element overlaps and strangulation adds an extra element; an attempt to strangle can satisfy the greater without physical contact

United States v. Mariano, 729 F.3d 874 (8th Cir. 2013) (defendant who requests an instruction waives appellate challenge to that instruction)
United States v. Ramos, 852 F.3d 747 (8th Cir. 2017) (district court may preserve issues by raising and ruling on them sua sponte)
United States v. Calhoun, 721 F.3d 596 (8th Cir. 2013) (plain error standard for forfeited claims)
United States v. Gates, 709 F.3d 58 (1st Cir. 2013) (invited error doctrine prevents a party from inducing an error and later appealing it)
Schmuck v. United States, 489 U.S. 705 (1989) (elements test for lesser-included offenses)
United States v. Herron, 539 F.3d 881 (8th Cir. 2008) (distinguishing offenses that require physical contact from attempts that need not involve contact)