Wednesday, July 21, 2004
Ninth Circuit Upholds Hiker’s Conviction for Telling Friend Rangers Were After Him
By KENNETH OFGANG, Staff Writer/Appellate Courts
A hiker who disregarded instructions by a park ranger to leave a trail, and who instead went back to the trail to warn a fellow hiker that the rangers were looking to arrest him, was properly convicted of interference with government officials in the performance of their duties, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel upheld Gabriel Bucher’s conviction growing out of an April 2001 incident in Hawaii’s Haleakala National Park.
Bucher was one of 14 hikers who rangers initially encountered at a cabin on a remote trail. The rangers noticed that several in the group had marijuana, and gave them the choice of relinquishing the contraband or being cited.
That evening, the rangers determined that one of the hikers, 79-year-old Robert Jacobs, had given a false name. The rangers then staked out the trail head the next morning with the intent of arresting Jacobs.
Upon seeing Bucher, the rangers asked where Jacobs was. Told he was 15 or 20 minutes behind, they told Bucher to leave and not return to the trail.
A ranger later testified that he gave this order because he “did not want [Bucher] to warn Mr. Jacobs of what we had intended for him so that it would not prolong the investigation with him going back into the crater and us following him.”
The ranger said he later saw, through his binoculars, Bucher and Jacobs conversing about a quarter mile from the trial head, then went out to intercept Jacobs on the trail. When he approached Bucher and Jacobs, he testified, Jacobs dropped to the ground, apparently unconscious.
It was later suggested that the elderly man was faking unconsciousness in a bid to avoid arrest.
A magistrate judge found Bucher guilty of interference with the rangers and fined him $35.
Senior Judge Jerome Farris, writing for the Ninth Circuit, said that what Bucher did was a crime.
“A police officer comes to a mother’s home to arrest her son. He isn’t there. She later notifies the son that police want to arrest him. Should she be guilty of anything other than possibly loving a son who may not deserve it? What about a motorist who warns other motorists that they are entering a police ‘speed trap’? The price will prove extremely high if reasonable human conduct becomes criminal. However, the line between reasonable conduct and conduct that interferes with the performance of official conduct must be drawn.”
Interference with law enforcement officers’ duties, Farris went on to say, may occur without physical obstruction or hindrance of the officers themselves. Bucher, he added, did not merely disobey the ranger’s order.
“He walked a quarter mile down the trail and spoke to the target of the rangers’ investigation, after which that person employed a ruse designed to obstruct his arrest,” Farris noted.
The judge went on to reject Bucher’s argument that there was insufficient evidence to convict him because there was no proof of what he said to Jacobs. But Farris said the trier of fact was entitled to draw reasonable inferences.
“Here Bucher walked down the trail and spoke to Jacobs within minutes of learning that the rangers planned to arrest him,” the judge wrote. “ From this, any rational fact finder could conclude that he: (1) returned to the trail to help Jacobs avoid arrest (2) warned Jacobs of the rangers’ intent, which, (3) enabled Jacobs to concoct and mentally rehearse his performance.”
Judge Johnnie B. Rawlinson concurred, but Senior Judge John T. Noonan dissented.
“If Gabriel Bucher, after speaking to the ranger, had turned around to walk back farther down, and never reached his elderly friend Robert Jacobs, he might have been charged with disobeying the ranger’s lawful order and conceivably he might have been charged with attempting to interfere with the ranger’s performance of official duty. He could not have been charged with, or convicted of, actual interference because he would not have spoken to Jacobs. The evidence of interference in this case is no better.”
Noonan accused his colleagues of engaging “in genuinely ingenious invention in supposing that Bucher’s words led Jacobs to feign fainting and play possum.” There was no evidence to prove “this imaginative scenario,” the dissenting judge declared.
Noonan went on to write:
“It is a virtue of our judicial system that a $35 fine can be the subject of an appeal. It is a virtue of the members of this court that they can see and state the harshness of penalizing a man for warning his friend. It is not, however, any service to justice to uphold a conviction on the basis of a scenario unsupported by the evidence.”
The case is United States v. Bucher, 03-10197.
Copyright 2004, Metropolitan News Company