Opinion
No. 08-4041-cr.
March 19, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Keenan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Daniel M. Perez, The Law Offices of Daniel M. Perez, Newton, NJ; Brian Sheppard, New Hyde Park, NY; Rodolphe Nogbou, pro se, McElhattan, PA, for Appellant.
John P. Cronan (Diane Gujarati on the brief) on behalf of Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellees.
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 meritless, 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, 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.