     08-4041-cr
     United States v. Nogbou

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19 th day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GERARD E. LYNCH,
 9                              Circuit Judge,
10                JANE A. RESTANI * ,
11                              Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               08-4041-cr
18
19       RODOLPHE NOGBOU,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       APPEARING FOR APPELLANT:               DANIEL M. PEREZ, The Law Offices
24                                              of Daniel M. Perez, Newton, NJ;
25                                              Brian Sheppard, New Hyde Park,
26                                              NY; Rodolphe Nogbou, pro se,
27                                              McElhattan, PA.


                *
               The Honorable Jane A. Restani, Chief Judge of the
         United States Court of International Trade, sitting by
         designation.

                                                  1
1    APPEARING FOR APPELLEES:    JOHN P. CRONAN (Diane Gujarati
2                                on the brief) on behalf of Preet
3                                Bharara, United States Attorney
4                                for the Southern District of New
5                                York, New York, NY.
6
7        Appeal from a judgment of the United States District

8    Court for the Southern District of New York (Keenan, J.).

9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10   AND DECREED that the judgment of the district court be

11   AFFIRMED.

12       Rodolphe Nogbou appeals from a judgment of conviction

13   entered after a jury found him guilty of assaulting a

14   federal officer.   See 18 U.S.C. § 111(a).   We assume the

15   parties’ familiarity with the underlying facts, the

16   procedural history, and the issues presented for review.

17       To the extent that Nogbou now argues that the district

18   court should have instructed the jury that he would be

19   allowed to interfere with a reasonable search if he had an

20   objectively reasonable belief that the search was

21   unreasonable, that argument was not made below; Nogbou’s

22   counsel expressly disagreed with the district court’s

23   statement that the standard was objective, not subjective.

24   Moreover, counsel’s suggestion to the district court that a

25   defense could be based on Nogbou’s alleged “perception” that

26   the search was unreasonable was inconsistent with his



                                   2
1    express agreement with the contrary answer to the jury’s

2    question proposed by the district court.    “[B]y agreeing

3    that the instruction was satisfactory, [defendant] waived

4    the right to challenge the instruction on appeal.”    United

5    States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009).       Even

6    if we reached this claim, it would be meritless, as it would

7    be unlawful to interfere with a search based on a belief

8    that the officer acted unreasonably.    See Maryland v. Macon,

9    472 U.S. 463, 470 (1985). (“Whether a Fourth Amendment

10   violation has occurred turns on an objective assessment of

11   the officer’s actions.” (internal quotation marks omitted)).

12       The district court was also correct to deny the

13   defense’s request for an instruction on the right to resist

14   excessive force, as there was no evidence presented of

15   excessive force being used.    See Anderson v. Branen, 17 F.3d

16   552, 556 (2d Cir. 1994) (“A litigant is entitled to an

17   instruction on a claim where that claim is supported by

18   evidence of probative value.”).

19       Finding no merit in Nogbou’s remaining arguments, we

20   hereby AFFIRM the judgment of the district court.

21
22
23                                 FOR THE COURT:
24                                 CATHERINE O’HAGAN WOLFE, CLERK
25
26




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