United States v. Nogbou

Second Circuit

United States v. Nogbou

370 F. App'x 154

CourtCourt of Appeals for the Second Circuit

DecidedMarch 19, 2010

Docket08-4041-cr

StatusUnpublished

Cited by1 cases

This text of 370 F. App'x 154 (United States v. Nogbou) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Nogbou, 370 F. App'x 154 (2d Cir. 2010).

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Opinion

SUMMARY order

Rodolphe Nogbou appeals from a judgment of conviction entered after a jury found him guilty of assaulting a federal officer. See 18 U.S.C. § 111(a). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

To the extent that Nogbou now argues that the district court should have instructed the jury that he would be allowed to interfere with a reasonable search if he had an objectively reasonable belief that the search was unreasonable, that argument was not made below; Nogbou’s counsel expressly disagreed with the district court’s statement that the standard was objective, not subjective. Moreover, counsel’s suggestion to the district court that a defense could be based on Nogbou’s alleged “perception” that the search was unreasonable was inconsistent with his express agreement with the contrary answer to the jury’s question proposed by the district court. “[B]y agreeing that the instruction was satisfactory, [defendant] waived the right to challenge the instruction on appeal.” United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.2009). Even if we reached this claim, it would be merit-less, as it would be unlawful to interfere with a search based on a belief that the officer acted unreasonably. See Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). (“Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions.” (internal quotation marks omitted)).

The district court was also correct to deny the defense’s request for an instruction on the right to resist excessive force, *156 as there was no evidence presented of excessive force being used. See Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994) (“A litigant is entitled to an instruction on a claim where that claim is supported by evidence of probative value.”).

Finding no merit in Nogbou’s remaining arguments, we hereby AFFIRM the judgment of the district court.

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SUMMARY order

Rodolphe Nogbou appeals from a judgment of conviction entered after a jury found him guilty of assaulting a federal officer. See 18 U.S.C. § 111(a). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

To the extent that Nogbou now argues that the district court should have instructed the jury that he would be allowed to interfere with a reasonable search if he had an objectively reasonable belief that the search was unreasonable, that argument was not made below; Nogbou’s counsel expressly disagreed with the district court’s statement that the standard was objective, not subjective. Moreover, counsel’s suggestion to the district court that a defense could be based on Nogbou’s alleged “perception” that the search was unreasonable was inconsistent with his express agreement with the contrary answer to the jury’s question proposed by the district court. “[B]y agreeing that the instruction was satisfactory, [defendant] waived the right to challenge the instruction on appeal.” United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.2009). Even if we reached this claim, it would be merit-less, as it would be unlawful to interfere with a search based on a belief that the officer acted unreasonably. See Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). (“Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions.” (internal quotation marks omitted)).

The district court was also correct to deny the defense’s request for an instruction on the right to resist excessive force, *156 as there was no evidence presented of excessive force being used. See Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994) (“A litigant is entitled to an instruction on a claim where that claim is supported by evidence of probative value.”).

Finding no merit in Nogbou’s remaining arguments, we hereby AFFIRM the judgment of the district court.

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370 F. App'x 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nogbou-ca2-2010.

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