Defendant’s request for jury instruction on particular lesser-included offense does not preserve for appeal all possible lesser-included offenses

JURY INSTRUCTION/SENTENCING United States v. Bruce, No. 05-2150, ___ F.3d ___ (10th Cir. Aug. 15, 2006)(New Mexico). Appeal of conviction for assault with dangerous weapon with intent to do bodily harm and assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(3), 113(a)(6), 1153(a), and appeal of condition of supervised release imposed without notice. HELD: (1) Defendant’s request for jury instruction on particular lesser-included offense does not preserve for appeal all possible lesser-included offenses. Therefore, defendant’s request for jury instruction on lesser-included offense of assault by striking, beating, or wounding is not “proper request” preserving for appeal his argument that he was entitled to lesser-included instruction on simple assault. (2) Defendant is entitled to notice before imposition of suspicionless-search special condition of supervised release. Challenge to lack of notice of condition’s possible imposition is preserved for de novo review on appeal despite defendant’s failure to object in district court because lack of notice short-circuits significance of defendant’s opportunity to comment. Read the opinion here.