United States v. Bentley Kalu

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4455
BENTLEY O. KALU,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-98-311-DKC)
Submitted: April 20, 2000
Decided: May 16, 2000
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James Wyda, Federal Public Defender, Beth M. Farber, Chief Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Steven M. Dettelbach,
Assistant United States Attorney, Rod J. Rosenstein, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bentley O. Kalu appeals his conviction for one count of knowingly
and intentionally forcibly assaulting a federal officer in violation of
18 U.S.C.A. § 111(b) (West Supp. 1999). Prior to his trial on this
charge, Kalu pled guilty to two counts of bank fraud in violation of
18 U.S.C. § 1344 (West Supp. 1999), and two counts of possession
of stolen mail in violation of 18 U.S.C. § 1708 (West Supp. 1999).
Kalu claims that the district court erred by declining to instruct the
jury that if it found that Kalu acted reasonably in the face of excessive
force by a federal officer, it should acquit him. Finding no reversible
error, we affirm.
A district court's decision regarding jury instructions is reviewed
for abuse of discretion. See United States v. Russell, 971 F.2d 1098,
1107 (4th Cir. 1992). "As a general proposition a defendant is entitled
to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor."
Mathews v. United States, 485 U.S. 58, 63 (1988) (permitting a defen-
dant to pursue inconsistent defenses). In addition to being supported
by the evidence, the proposed instruction must state the applicable
law. See United States v. Stotts, 113 F.3d 493, 496 (4th Cir. 1997).
A district court's refusal to provide a requested instruction is revers-
ible error only if the instruction: "``(1) was correct; (2) was not sub-
stantially covered by the court's charge to the jury; and (3) dealt with
some point in the trial so important, that failure to give the requested
instruction seriously impaired the defendant's ability to conduct his
defense.'" United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995)
(quoting United States v. Camejo, 929 F.2d 610, 614 (11th Cir.
1991)).
We find that the court's failure to grant Kalu's requested instruc-
tion did not impair his ability to conduct his defense. "Our Fourth
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Amendment jurisprudence has long recognized that the right to make
an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it."
Graham v. Connor, 490 U.S. 386, 396 (1989). Excessive force is
more force than necessary to effectuate the arrest or stop. The factors
to consider are: (1) the severity of the crime; (2) whether the suspect
poses a danger to the police or others; and (3) whether the suspect is
actively resisting being stopped by the police. See id. We have
reviewed the evidence in this case and conclude that the officer did
not use excessive force in struggling with Kalu and drawing his gun
on Kalu. Kalu was fleeing and Kalu's actions when he reached his
vehicle caused the officer to fear for his safety. Furthermore, even
assuming the officer used excessive force, Kalu's response of driving
his vehicle in reverse and hitting a second officer, was not reasonable.
Accordingly, we affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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