16-3682-cr
United States v. Hidalgo


                            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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of May, two thousand eighteen.

PRESENT: REENA RAGGI,
         GERARD E. LYNCH,
                                                   Circuit Judges,
                     LEWIS A. KAPLAN,
                                                   District Judge. ∗

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UNITED STATES OF AMERICA,
                                                          Appellee,

                           v.                                              No. 16-3682-cr

JORDAN HIDALGO,
                                             Defendant-Appellant.
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FOR APPELLANT:                                    Steven Yurowitz, Newman & Greenberg LLP,
                                                  New York, New York.

FOR APPELLEE:                                    Tiffany H. Lee, Assistant United States
                                                 Attorney, for James P. Kennedy, Jr., United
                                                 States Attorney for the Western District of New
                                                 York, Rochester, New York.

∗
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.

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       Appeal from a judgment of the United States District Court for the Western

District of New York (Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 30, 2016, is AFFIRMED.

       Defendant Jordan Hidalgo appeals from a conviction entered after a jury trial at

which he was found guilty of assaulting a federal officer, making physical contact with

the victim and inflicting bodily injury.    See 18 U.S.C. § 111(a)(1), (b).        Presently

serving a 240-month prison sentence, which runs concurrently with the 262-month

sentence he is serving on an unrelated conviction for racketeering conspiracy, Hidalgo

challenges his assault conviction on the grounds that (1) the district court’s failure to

charge self-defense denied him a fair trial, and (2) the indictment’s failure to allege

physical contact with the victim precluded application of the § 111(b) sentencing

enhancement.    We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Jury Charge

       A defendant is entitled to have the jury instructed on “any theory of defense for

which there is any foundation in the evidence, no matter how weak or incredible that

evidence may be.”      United States v. Rowland, 826 F.3d 100, 115 (2d Cir. 2016)

(alteration and internal quotation marks omitted).    The district court here determined

that no evidentiary basis supported Hidalgo’s request for a self-defense charge.    There is

some ambiguity in our precedent as to whether we review that determination de novo or

for abuse of discretion.   Compare United States v. Desinor, 525 F.3d 193, 198 (2d Cir.

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2008) (holding that refusal to give self-defense instruction is reviewed de novo), with

United States v. Hurtado, 47 F.3d 577, 585 (2d Cir. 1995) (holding that, “[a]bsent an

abuse of discretion, a district court’s determination that there was no foundation for the

charge must be upheld”), and United States v. Rowland, 826 F.3d at 115 (stating that

defendant bears burden of establishing adequate evidentiary basis for requested charge

and district court’s determination that burden not carried “is reviewed for abuse of

discretion”).   We need not resolve the ambiguity here because Hidalgo’s challenge fails

even on de novo review.

       Because self-defense is “a matter of federal common law,” federal courts look to

state law for guidance as to when it is appropriately charged.      United States v. Desinor,

525 F.3d at 199.    Under New York law, a defendant may argue self-defense where he

“reasonably believes [physical force] to be necessary to defend himself . . . from what he

. . . reasonably believes to be the use or imminent use of unlawful physical force” by

another person.    N.Y. Penal Law § 35.15(1); see People v. Goetz, 68 N.Y.2d 96, 114,

506 N.Y.S.2d 18, 29 (1986) (citing § 35.15 in recognizing that justification defense

involves both subjective and objective elements whereby “determination of

reasonableness must be based on the circumstances facing a defendant or his situation”

(internal quotation marks omitted)).     As this language makes plain, a defendant cannot

argue self-defense to excuse resistance to law enforcement officers’ lawful execution of

authority.   See People v. Stevenson, 31 N.Y.2d 108, 112–13, 335 N.Y.S.2d 52, 56–57

(1972) (identifying no basis for self-defense charge where “conduct of the defendant,

whether verbal or physical, clearly established the requisite intent . . . for resisting arrest”

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and nothing in record “indicate[d] either an unprovoked police assault or . . . the use of

excessive physical force justifying a charge as to self-defense” (internal quotation marks

omitted)); N.Y. Penal Law § 35.27 (“A person may not use physical force to resist an

arrest, whether authorized or unauthorized, which is being effected or attempted by a

police officer . . . when it would reasonably appear that the latter is a police officer

. . . .”). Nor can a defendant argue self-defense if he was himself “the initial aggressor.”

N.Y. Penal Law § 35.15(1)(b).       Applying these principles here, we conclude, as the

district court did, that the record evidence provides no foundation for a self-defense

instruction.

       The charged assault occurred when two unarmed Deputy United States Marshals,

tasked with transporting Hidalgo from one federal facility to another, attempted to enter

defendant’s prison cell for that lawful purpose.   Rather than accede to the transportation,

Hidalgo punched one of the deputies, James Bona, in the face, breaking his nose.

Hidalgo urges that he was entitled to a self-defense instruction because he reasonably

feared serious bodily injury from the way the officers “charged into his small cell while

he was backed against the wall.”      Appellant’s Br. 7.    Hidalgo, who did not testify at

trial, maintains that his characterization of events finds support in the trial testimony of

the two deputies and from a prison video recording of the incident.                In fact, this

evidence is quite to the contrary, confirming the district court’s determination that there is

no factual foundation for a self-defense charge.    Specifically, the evidence demonstrates

that Hidalgo was the initial aggressor, announcing even before he punched Bona that he

intended forcibly to resist the deputies’ performance of their transport duties.

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       For example, as Hidalgo’s cell door was opened, and before any deputy entered,

Hidalgo defiantly, and profanely, shouted that he “wasn’t going” with the marshals, and

assumed a fighting stance. App’x 108.        Deputy John Serdula closed the cell door and,

from outside, he and Bona briefly attempted to speak with Hidalgo about the need to

transport him.   Hidalgo made plain that he would forcibly resist their efforts, stating, “if

you try to take me, I’ll fight you.”    Id. at 34.   As the deputies opened the cell door a

second time, Hidalgo balled up his fists and shouted, “I’m serious, I’ll fight, I’m serious.”

Id. at 36.   In such circumstances, the deputies’ quick entry into Hidalgo’s cell and

Deputy Serdula’s particular attempt to restrain Hidalgo around the waist admits no

objectively reasonable interpretation as an “unlawful” use of physical force.            The

actions can only reasonably be interpreted as an entirely lawful attempt to secure

Hidalgo’s person and effect his transportation without risk of his carrying out his

threatened forcible resistance. See Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d Cir.

2000) (“The fact that a person whom a police officer attempts to arrest resists, threatens,

or assaults the officer no doubt justified the officer’s use of some degree of force . . . .

The force used by the officer must be reasonably related to the nature of the resistance

and the force used, threatened, or reasonably perceived to be threatened, against the

officer.” (emphasis in original)).   The deputies were not entirely successful because, at

and about the same time that Serdula was attempting to restrain Hidalgo, defendant

punched Bona, breaking his nose.       There is no evidentiary foundation for construing this

punch as self-defense against the deputies’ unlawful use of force.               The silent

surveillance video, which shows only the exterior of the cell and does not record what

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took place inside the cell, does nothing to undermine the deputies’ testimony and offers

no support for the self-defense theory.

       Accordingly, we identify no error in the district court’s denial of Hidalgo’s request

to charge self-defense.

2.     Sufficiency of Indictment

       Hidalgo argues that he was improperly convicted of enhanced assault under 18

U.S.C. § 111(b) because the indictment did not allege the “physical contact” element of

felony assault, see id. § 111(a).   We generally review challenges to the sufficiency of an

indictment de novo, but where, as here, a defendant did not raise the issue in the district

court, we review only for plain error, which is not evident here.     See United States v.

Agrawal, 726 F.3d 235, 242 (2d Cir. 2013); see also United States v. Marcus, 560 U.S.

258, 262 (2010) (stating that plain error is (1) error (2) that is clear or obvious, (3)

affecting “substantial rights,” and (4) seriously impugning the “fairness, integrity or

public reputation of judicial proceedings” (internal quotation marks omitted)).

       Hidalgo’s argument fails for two reasons.       First, while § 111(a) distinguishes

misdemeanor assault from felony assault by requiring proof of “physical contact with the

victim” for the latter, § 111(b) appears by its terms to apply to either type of assault in

specified aggravating circumstances.      It states:

       Whoever, in the commission of any acts described in subsection (a), uses a
       deadly or dangerous weapon (including a weapon intended to cause death
       or danger but that fails to do so by reason of a defective component) or
       inflicts bodily injury, shall be fined under this title or imprisoned not more
       than 20 years, or both.

18 U.S.C. § 111(b) (emphasis added); see United States v. Chestaro, 197 F.3d 600, 606

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(2d Cir. 1999) (recognizing that § 111 “creates three distinct categories of conduct”:

(1) simple assault, (2) felony assault, and (3) assault involving a specified weapon or

bodily injury).

       But even if the statutory language did not foreclose Hidalgo’s urged construction,

there is a second reason why he is not entitled to vacatur of his enhanced sentence.           He

cannot demonstrate that the forfeited indictment error adversely affected either his

substantial rights or the fairness, integrity, or public reputation of judicial proceedings.

       Notably, Hidalgo does not assert that he was not given fair notice that the charged

assault involved actual physical contact, specifically, between his fist and Deputy Bona’s

face. Indeed, that has been the government’s only theory throughout.         As this court has

observed, as long as a defendant has notice adequate to allow him to prepare a defense,

“omissions in the indictment do not affect substantial rights” so as to manifest plain error.

United States v. Nkansah, 699 F.3d 743, 752 (2d Cir. 2012), abrogated on other grounds

by United States v. Bouchard, 828 F.3d 116 (2d Cir. 2016).        That is necessarily so here,

where the district court charged the jury that it had to find physical contact with the

victim proved beyond a reasonable doubt to find Hidalgo guilty of the charged assault;

otherwise, it could only convict of the lesser included offense of simple, i.e.,

misdemeanor, assault.     The jury having found Hidalgo guilty of the charged crime upon

such instruction, and the record evidence of physical contact being overwhelming,

Hidalgo cannot show that the indictment’s omission of a contact element here seriously

affects the fairness and integrity of his judicial proceedings.         See United States v.

Cotton, 535 U.S. 625, 633–34 (2002) (holding that indictment’s omission of sentence

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enhancing drug quantity was not plain error where quantity was convincingly proved; in

such circumstances, “real threat” to fairness, integrity, and reputation of judicial

proceedings would be if defendants, “despite the overwhelming and uncontroverted

evidence that they were involved in a vast drug conspiracy, were to receive a sentence

prescribed for those committing less substantial drug offenses because of an error that

was never objected to at trial”).

       Accordingly, Hidalgo is not entitled to vacatur of his § 111(b) sentence based on

indictment error.

       We have considered Hidalgo’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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