UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4809

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CURTIS SPIVEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. T. S. Ellis, III, District

Judge. (CR-01-484)

Argued: February 3, 2005 Decided: May 10, 2005

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew Alan Wartel, Alexandria, Virginia, for Appellant.

G. David Hackney, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON

BRIEF: Paul J. McNulty, United States Attorney, Michael E. Rich,

Assistant United States Attorney, Alexandria, Virginia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Curtis R. Spivey appeals his conviction for assault with a 

dangerous weapon with intent to do bodily harm. See 18 U.S.C.A.

§ 113(a)(4) (West 2000). Spivey appeals primarily on the ground

that the submission of this crime to the jury, which he requested,

constituted reversible error. For the reasons that follow, we

affirm. 

 

I.

Spivey and a fellow prisoner named John Darrell had an

altercation after Darrell told Spivey to stop making noise while

Darrell was watching television. According to Darrell, Spivey hit

him with a five- or six-inch sharp object in his back and chest.

Dr. Konrad Jarrett described the injury to Darrell’s upper back as

“just a scratch” and the injury to Darrell’s left chest as “a

puncture wound,” which did not penetrate the chest cavity. J.A.

179. Dr. Jarrett opined that had the puncture wound penetrated far

enough, it could have been fatal, and he described Darrell’s

injuries as consistent with having been inflicted by either an ice

pick or an ink pen. 

A grand jury returned a one-count superceding indictment

charging Spivey with assault with intent to commit murder. See 18

U.S.C.A. § 113(a)(1) (West 2000). This offense carries a maximum

sentence of twenty years. Before trial, both parties requested
*Prior to sentencing, Spivey moved pro se for appointment of

new counsel for purposes of sentencing and appeal, arguing that

trial counsel was not trustworthy and effective, failed to raise

3

that the district court also submit for the jury’s consideration

another offense defined in § 113(a), to wit, the offense of assault

with a dangerous weapon with intent to do bodily harm, see 18

U.S.C. § 113(a)(4), which carries a maximum sentence of

imprisonment of only ten years. 

After the Government’s case-in-chief, the district court asked

the parties if there were any corrections or objections to the

requested instructions, which included the offense of assault with

a dangerous weapon with intent to do bodily harm. Aside from one

objection raised by the Government irrelevant to this appeal,

neither party raised an objection or suggested any change to the

proposed jury instructions. 

After reading the jury the agreed upon instructions, the

district court asked counsel whether the jury had been fully and

fairly instructed. Spivey’s attorney responded, “Yes, your honor.”

J.A. 258. The district judge also requested that counsel review

the verdict form. Spivey’s counsel lodged no objection to the

verdict form, which reflected both offenses. The jury returned a

verdict of not guilty on the offense of assault to commit murder,

but guilty on the offense of assault with a dangerous weapon with

intent to do bodily harm. The district court sentenced Spivey to

110 months imprisonment.* 
several alleged discovery violations to the district court, and

failed to call an unnamed defense witness at trial. At Spivey’s

sentencing hearing, the district court considered and denied

Spivey’s motion for appointment of new counsel for sentencing

purposes. For purposes of this appeal, the district court ordered

appointment of new counsel for Spivey.

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II.

Spivey principally argues that the district court erred by

submitting to the jury the offense of assault with a dangerous

weapon with intent to do bodily harm. Specifically, Spivey asserts

that the submission to the jury of an offense other than that

charged in the indictment is only appropriate in cases where the

indictment already charges all the elements of the second offense.

The indictment in this case charged Spivey with the offense of

assault with intent to commit murder. Spivey contends that the use

of a dangerous weapon is an element of the offense of assault with

a dangerous weapon with intent to do bodily harm, but is not an

element of the offense of assault with intent to commit murder.

Stated another way, the offense of assault with a dangerous weapon

with intent to do bodily harm is not a lesser-included offense of

assault with intent to commit murder. Because the indictment

charging Spivey with the offense of assault with the intent to

commit murder did not include a finding on the element regarding

the use of a dangerous weapon, Spivey contends the district court

erred in instructing the jury as to the dangerous weapon offense

and his conviction on this offense should be reversed.
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The Government concedes that the offense of assault with a

dangerous weapon with intent to do bodily harm is not a lesserincluded offense of assault with intent to commit murder and that

lesser offense instructions are only permissible in cases where the

indictment contains the elements of the lesser offense. See

Schmuck v. United States, 489 U.S. 705, 716 (1989) (adopting

elements test where one offense is not necessarily included in

another unless the elements of the lesser offense are a subset of

the elements of the charged offense). Nonetheless, the Government

argues that we should not reverse Spivey’s conviction because the

error was invited. 

“‘A defendant in a criminal case cannot complain of error

which he himself has invited.’” United States v. Herrera, 23 F.3d

74, 75 (4th Cir. 1994) (quoting Shields v. United States, 273 U.S.

583, 586 (1927)). In this case, Spivey specifically requested that

the district court give the jury the instruction as to the offense

of assault with a dangerous weapon with intent to do bodily harm.

In addition, Spivey confirmed on no fewer than three occasions

during trial his support for the district court’s instructions.

After the Government’s case-in-chief, the district court consulted

with counsel regarding the proposed instructions provided by the

parties, which included the lesser offense instruction, and counsel

for Spivey approved of the instruction. After the closing

arguments, the district court instructed the jury on the lesser
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offense of assault with a dangerous weapon with intent to do bodily

harm, and Spivey’s counsel affirmed that the jury had been fully

and fairly instructed. Finally, the district court requested that

counsel review the verdict form, which included each offense, and

Spivey’s counsel again concurred. 

A.

Spivey argues that this error cannot be classified as invited

for three reasons. First, pointing to our opinion in Livingston v.

Murdaugh, 183 F.3d 300 (4th Cir. 1999), where we held that the

solicitor’s role in seeking the jury instruction prevented any

error from being classified as invited by the defendant, Spivey

argues that the error in this case is likewise not invited.

Specifically, Spivey points out that the Government requested the

erroneous instruction in its proposed instructions to the court. 

The solicitor in Livingston, however, played a dramatically

different role from the part played by the Government in this case.

In Livingston, we noted that while the defendant “initially

suggested the erroneous instruction, . . . the solicitor led the

argument with the trial judge.” Id. at 302 (internal quotation

marks omitted). Furthermore, when the trial judge asked whether

the solicitor had any law to support his assertion that the

instruction was proper, “[t]he solicitor answered, ‘Yes sir,’

despite the fact that no such law exists.” Id. 
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In this case, no evidence suggests that the Government “led

the argument with the trial judge” to give the jury an erroneous

instruction as did the solicitor in Livingston. Rather, both

Spivey and the Government requested the instruction in their

proposed instructions to the court. Throughout trial, moreover,

Spivey’s counsel repeatedly approved of the district court’s

instruction on assault with a dangerous weapon with intent to do

bodily harm, and the Government played no greater role than

Spivey’s counsel in assenting to the district court’s instruction.

Perhaps most importantly, and in contrast to the solicitor’s

conduct in Livingston, the Government never expressly misled the

district judge into believing that there was law to support the

erroneous instruction when in fact there was not. For these

reasons, Spivey has failed to demonstrate that the Government’s

role in this case prevents any error from being classified as

invited by him. 

B.

Second, Spivey contends that the Supreme Court’s decision in

United States v. Olano, 507 U.S. 725 (1993), changed the invited

error doctrine. According to Spivey, errors after Olano must be

classified as either waived or forfeited, such that there is no

longer any room in the analysis for our traditional invited error
8

doctrine. See United States v. Perez, 116 F.3d 840, 842 (9th Cir.

1997) (en banc). 

We do not believe that Olano has worked such a change in our

approach to the issue. As the Court made clear in Olano,

“[d]eviation from a legal rule is ‘error’ unless the rule has been

waived.” Olano, 507 U.S. at 732-33. By specifically requesting an

instruction on assault with a dangerous weapon with intent to do

bodily harm, counsel for Spivey gave up the right to complain about

the submission of the offense to the jury. Whether we call the

error an invited error or a waived error under Olano is irrelevant.

Invited errors are by definition waived errors, and under Olano,

not reviewable on appeal. Spivey’s claim that Olano somehow

changed our invited error doctrine is therefore without merit, as

evidenced by the fact that we have continued to apply the invited

error doctrine, even after the Supreme Court’s decision in Olano.

See, e.g., United States v. Bennafield, 287 F.3d 320, 325 (4th Cir.

2002) (applying invited error doctrine post-Olano and refusing to

consider claim that district court erred by instructing the jury on

an allegedly lesser, but not included, offense, given that

defendant requested the instruction).

C. 

Third, Spivey argues that an “exceptional circumstance” exists

that would remove the bar to reversal erected by the invited error
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doctrine. That is, Spivey contends that reversal is necessary to

preserve the integrity of the judicial process and prevent a

miscarriage of justice because his conviction violates the Fifth

Amendment prohibition against permitting “a defendant to be tried

on charges that are not made in the indictment against him.”

Stirone v. United States, 361 U.S. 212, 217 (1960). 

We have never recognized an exception to the invited error

doctrine, see Wilson v. Lindler, 8 F.3d 173, 175 (4th Cir. 1993)

(en banc), and we do not believe one is warranted in this case,

given that Spivey’s conviction would neither jeopardize the

integrity of the judicial process nor cause a miscarriage of

justice.

III.

Spivey also challenges his conviction on two other grounds.

First, he contends that the district court should have charged the

jury with the lesser offense of simple assault because there was

conflicting testimony on the type of weapon used in the attack.

Spivey failed to object to the omission of that instruction. Thus,

the court reviews the omission for plain error. See Olano, 507

U.S. at 732-35.

Generally, a district court is not required to submit a

specific instruction unless the instruction is warranted by the

evidence and is requested by a party. See United States v. Baker,
985 F.2d 1248, 1259 (4th Cir. 1993). Neither the Government nor

Spivey requested the instruction as to the lesser-included offense

of simple assault. Nor did either party object to the omission of

the simple assault instruction at any point. Because no party

requested, or even suggested, that the district court instruct the

jury as to the lesser-included offense of simple assault, the

district court’s failure to do so was not error.

Second, Spivey contends that his conviction should be reversed

because his counsel was ineffective. In particular, Spivey asserts

that his attorney was ineffective in failing to call available

defense witnesses, to lodge any objections to the Government’s

allegedly late disclosure of certain information, to object to the

Government’s use of a withheld statement to impeach Spivey on the

stand, and to file a timely new trial motion raising these issues.

Unless the record conclusively demonstrates counsel’s

ineffectiveness, this court will not review an ineffective

assistance of counsel claim on direct review. See United States v.

Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). The record does not

conclusively demonstrate Spivey’s allegations of ineffectiveness

against his counsel. 

IV.

For the reasons discussed above, we affirm Spivey’s conviction

and sentence. 

AFFIRMED