U.S. v. Bibbins, 09–16775.

• Decision Date: 20 April 2011
• Docket Number: No. 09–16775.,09–16775.
• Citation: 637 F.3d 1087
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kevin BIBBINS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

637 F.3d 1087

11 Cal. Daily Op. Serv. 4645

2011 Daily Journal D.A.R. 5609

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin BIBBINS, Defendant–Appellant.

No. 09–16775.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 2010.Filed April 20, 2011.

Richard F. Boulware, Assistant Federal Public Defender, and Franny A. Forsman, Federal Public Defender, Office of the Federal Public Defender, Las Vegas, NV, for defendant-appellant Kevin Bibbins.Roger Yang, Assistant United States Attorney, Robert L. Ellman, Appellate Chief, and Daniel G. Bogden, United States Attorney, United States Attorney's Office, Las Vegas, NV, for plaintiff-appellee United States of America.Appeal from the United States District Court for the District of Nevada, Roger L. Hunt, Chief District Judge, Presiding. D.C. No. 2:09–cv–00689–RLH–GWF.Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

After a court trial in front of a magistrate judge, Kevin Bibbins was convicted of two misdemeanors: (1) resisting a government employee or agent, in violation of 36 C.F.R. § 2.32(a)(1); and (2) obstructing a license plate, in violation of 36 C.F.R. § 4.2(b) and Nevada Revised Statutes § 482.275. The charges arose out of a traffic stop that escalated into an altercation between Bibbins and four park rangers in Lake Mead National Recreation Area, Nevada. Bibbins appeals both convictions. For the reasons stated below, we affirm.

I. BACKGROUND¹

On April 8, 2008, Bibbins was stopped by park rangers Michelle Schonzeit and Eric Westpfahl while he was driving a motor home in Lake Mead National Recreation Area. The motor home was towing a pickup truck. The rangers stopped Bibbins to inform him that a garbage bag had slipped over the back edge of the pickup truck and had obscured the truck's license plate. After Bibbins pulled over, Schonzeit approached the front cabin of the motor home and informed Bibbins that his truck's license plate was obscured, to which Bibbins replied, “You don't need to see my damn license plate—it's there.” Schonzeit then asked Bibbins several times whether he had any weapons in his vehicle. Bibbins eventually told Schonzeit that he did not have any weapons. After dispatching Bibbins's drivers license and registration information to the Las Vegas Metropolitan Police Department (LVMPD), Schonzeit and Westpfahl learned that Bibbins had an active felony warrant from Clark County, Nevada, and that Bibbins's record included prior charges of assaulting officers and other violent conduct. Schonzeit called for assistance, and park rangers Brian Lake and Therese Picard soon reported to the scene. The four rangers all testified that they formulated a plan to ask Bibbins to exit the motor home and walk to the back of the truck so that they could arrest him, per the request of the LVMPD.

Using a microphone, Lake instructed Bibbins to exit the motor home and walk towards the rangers, who were standing at the back of the pickup truck. As Bibbins made his way towards the back of the truck, he was instructed to place his hands above his head, which he did not do. While walking towards the rangers, Bibbins announced that his leg was broken. Three of the rangers testified that they noticed Bibbins walking with a limp, and they all testified that they heard him say his leg was broken as he walked towards the back of the pickup truck. Bibbins was not wearing a walking boot to immobilize his leg, nor was he using crutches. Bibbins testified, however, that he had a walking boot in his motor home, but could not wear it while driving because the width of the boot made it impossible to operate the pedals. Bibbins testified that he did not put on his walking boot after being ordered to leave the motor home because he thought the rangers wanted him to exit immediately. Bibbins also had crutches in his pickup truck. An audio recording of the event confirms that Bibbins told the rangers that his crutches were in the truck, but the rangers did not allow him to retrieve the crutches.

When Bibbins reached the back of the pickup truck, he tightly gripped the truck's tailgate. Bibbins testified that at that point, his right leg was very sore from driving without the walking boot and he was unable to put his full weight on his right leg. Bibbins further testified that he was worried that his leg would break again if he put his full weight on it. Bibbins also testified that he had not taken his prescribed pain medication that day. Lake testified that he instructed Bibbins not to grab the back of the truck and ordered Bibbins to spread his legs. Bibbins responded by repeating that his leg was broken. The rangers then grabbed Bibbins's arms and attempted to pull them behind his back. Lake grabbed Bibbins's left arm while Schonzeit and Westpfahl grabbed Bibbins's right arm. Picard stood ready to handcuff Bibbins.

At this point, the testimony of the rangers and Bibbins differs. Bibbins testified that the rangers forced his hands behind his back, disengaged, and then tased him. The rangers testified that when they attempted to put Bibbins's hands behind his back, he continued to tightly grip the tailgate of the truck and tensed his arms. The rangers testified that Bibbins then shifted his weight towards Lake (who was standing to Bibbins's left) and raised his right arm. There is inconsistency between the rangers as to whether Bibbins actually freed his right arm from the grip of Schonzeit and Westpfahl. The rangers then let go of Bibbins, backed away, and drew their tasers. Lake ordered Bibbins to get on the ground, to which Bibbins responded, “I can't. My leg is broke.” Lake then immediately tased Bibbins in two places in his back. The electronic current from the taser caused Bibbins to fall to the ground. Bibbins then complied with all of the rangers' instructions.²

At Bibbins's trial, Dr. Mark Rosen offered expert testimony about the nature of Bibbins's leg injury. Dr. Rosen did not treat Bibbins, but reviewed all of Bibbins's medical records. Dr. Rosen confirmed that Bibbins had broken his leg earlier in 2008, and that his leg had not healed at the time of his arrest. At the time of his arrest, Bibbins was under instructions from his doctor to use his walking boot and crutches and not to put his full weight on his right leg. Dr. Rosen also testified that it would have been painful for Bibbins to walk without crutches or his walking boot, and that it was probably difficult for Bibbins to balance with his legs spread apart. Dr. Rosen also explained that clutching the tailgate of the pickup truck was consistent with Bibbins's testimony that he was trying to avoid putting weight on his injured leg.

In light of all the evidence, the magistrate judge found Bibbins guilty of the charged offenses: (1) resisting a government employee, in violation of 36 C.F.R. § 2.32(a)(1); and (2) obstructing a license plate, in violation of 36 C.F.R. § 4.2(b) and Nev.Rev.Stat. § 482.275. The judge sentenced Bibbins to thirty hours of community service and restricted Bibbins from entering Lake Mead National Recreation Area for one year. Bibbins appealed the magistrate judge's decision to the assigned district judge, who affirmed the convictions. Bibbins timely appealed the district court's final judgment.

II. ANALYSIS

Because Bibbins appeals a final judgment of the district court, we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a lower court's interpretation of a federal regulation. United States v. Hoff, 22 F.3d 222, 223 (9th Cir.1994) (per curiam). We also review de novo a lower court's interpretation of state law. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.2003).

A. Resisting a Government Employee

Bibbins was convicted of violating 36 C.F.R. § 2.32(a)(1), a regulation of the National Park Service that prohibits “[t]hreatening, resisting, intimidating, or intentionally interfering with a government employee or agent engaged in an official duty, or on account of the performance of an official duty.” Specifically, Bibbins was convicted of violating the “resisting” offense of the regulation.

Bibbins contends that the “resisting” offense of 36 C.F.R. § 2.32(a)(1) contains a willfulness element and that the evidence at trial was insufficient to show that he acted willfully.³ The question of the mens rea requirement for a violation of the “resisting” offense of § 2.32(a)(1) is one of first impression for this court. We agree with Bibbins that willfulness is a necessary element of the “resisting” violation. We ultimately conclude, however, that substantial evidence supports the magistrate judge's finding that Bibbins acted willfully.

1. Mens Rea of the “Resisting” Offense of 36 C.F.R. § 2.32(a)(1)

To determine the mens rea for a violation of the “resisting” term of § 2.32(a)(1), we start with the plain language of the regulation.⁴ Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); United States v. Bucher, 375 F.3d 929, 932 (9th Cir.2004); see also Reno v. Nat'l Trans. Safety Bd., 45 F.3d 1375, 1379 (9th Cir.1995) (“[T]he plain meaning of language in a regulation governs unless that meaning would lead to absurd results.”). Section 2.32(a)(1) does not explicitly state a mens rea element. We do not construe this silence to mean that the statute does not include a mens rea requirement. See United States v. Johal, 428 F.3d 823, 826–27 (9th Cir.2005) (“[W]e construe [a] statute in light of the background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.”) (quoting Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)) (internal quotation marks omitted). To deduce the mens rea for a violation of the “resisting” offense of § 2.32(a)(1) we must consider the plain meaning of the word “resisting.” Because “resisting” is undefined in the...