NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10268
Plaintiff-Appellee, D.C. No.
1:11-cr-00074-LJO-1
v.
KENNETH CARTER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Argued and Submitted March 15, 2018
San Francisco, California
Before: WALLACE and BERZON, Circuit Judges, and BERG,** District Judge.
Following a contested evidentiary hearing, the district court found that
Kenneth Carter violated his supervised release conditions by committing a new law
offense and associating with a felon. Carter now appeals. We have jurisdiction
under 28 U.S.C. § 1291. For the reasons explained below, we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
In reviewing an appeal of a supervised release revocation that challenges the
sufficiency of the evidence, “we ask whether, viewing the evidence in the light most
favorable to the government, any rational trier of fact could have found the essential
elements of a violation by a preponderance of the evidence.” United States v. King,
608 F.3d 1122, 1129 (9th Cir. 2010) (citations and internal quotation marks omitted).
1. Carter’s challenge to the district court’s finding that he knowingly
associated with a felon is straightforward: there was no evidence presented that
Carter had knowledge that his step-son, Joseph Packard, had a felony conviction.
See id. at 1128 (“[N]onassociation conditions prohibit only knowing contact with
persons that the supervisee knows to be felons.” (citations omitted)).
The district court found Carter violated the nonassociation condition because
he (1) knew who Joseph Packard was; (2) communicated with Packard when
Packard called and asked to come over; (3) allowed Packard to come over; and (4)
interacted with Packard, a convicted felon, by leaving his house after Packard called
and said he was outside with the police. The district court did not make a factual
finding that Carter knew Packard was a felon.
The lack of a knowledge finding is understandable because no direct evidence
was presented on this point. While there was evidence that Carter could have learned
that Packard was a felon, a possibility alone is not sufficient to prove knowledge of
Packard’s felon status by a preponderance of the evidence. The finding that Carter
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violated this condition of supervision must therefore be reversed.
2. Carter’s challenge to the sufficiency of the evidence that he committed
a new federal, state, or local crime is more complicated.
The district court first found that Carter interfered with the lawful activity of
police officers, in violation of Penal Code § 148,1 by yelling and swearing at the
officers, and then running back into his residence. However, verbal criticisms
directed at police officers are not, standing alone, sufficient to support a charge of
interfering with police activity. See, e.g., Duran v. City of Douglas, Ariz., 904 F.2d
1372, 1378 (9th Cir. 1990) (citing Houston v. Hill, 482 U.S. 451, 461, 462-63
(1987)). “[V]erbally confronting the police is a right all Americans have under the
First Amendment.” Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995).
Furthermore, Carter’s decision to run back into his residence could not have been
interference, as Carter was not under arrest at the time and had been specifically
asked by Deputy Hitter to go back inside. Thus, a rational fact finder could not
conclude by a preponderance of the evidence that Carter committed a new law
offense under § 148 based on Carter verbally criticizing the officers and running
back into his home.
The district court also found that Carter violated California Penal Code § 148
1
California Penal Code § 148 criminalizes “willfully resist[ing], delay[ing] or
obstruct[ing] any public officer . . . in the discharge or attempt to discharge any
duty of his or her office or employment . . . .” Cal. Penal Code § 148(a)(1).
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and so committed a new law violation when, after being ordered back out of his
home, he delayed for 15 to 20 minutes before complying. However, to be guilty of
an offense under § 148, a person must resist, obstruct, or delay officers who are
acting lawfully at the time of the resistance, obstruction, or delay. See Hooper v.
County of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011). Accordingly, if the
record does not contain sufficient evidence that, at the time Carter delayed coming
out of his house, the officers had a lawful basis to order him outside for arrest, there
can be no violation of § 148.
As stated, Carter’s yelling at the officers and running inside did not provide a
valid basis to seek his arrest, so the officers could not have ordered him from his
home for those reasons. The government points to another potential justification for
ordering Carter from his home: evidence that Carter threatened to get a gun before
he ran back into the house. According to the government, this alleged threat caused
the officers to seek Carter’s arrest for a violation of California Penal Code § 69,
which prohibits “deter[ring] or prevent[ing] an executive officer from performing
any duty” by means of “any threat or violence.” See Cal. Penal Code § 69(a).
The evidence presented on Carter’s alleged threat was contested, with the
parties offering conflicting evidence as to whether any officer ever heard a threat
being made. Although there is some confusion in the record, at the sentencing
hearing the district court ultimately declined to make a factual finding that Carter
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threatened to get a gun. The district court did determine that the officers had a
legitimate reason to be afraid that Carter was doing something dangerous when he
ran back inside his house. But that finding was intertwined with the court’s
conclusion that Carter engaged in unlawful behavior by joining the crowd in verbally
criticizing the officers and creating a chaotic situation. The district court
unequivocally stated that Carter’s new law violations were not based on the alleged
gun threat.
The district court’s express refusal to make a factual finding on the existence
of a threat is understandable in light of the record. On the record before us, the
equivocal evidence of a gun threat is insufficient to allow a rational fact finder to
conclude, by a preponderance of the evidence, that the officers had a lawful basis to
arrest Carter for a violation of California Penal Code § 69. With no adequate basis
for arrest, there was also no adequate basis for an order to leave the home, and no
violation of §148(a)(1) based on Carter’s 15-to-20-minute delay in complying.
As the evidence was insufficient to support violations for committing a new
law offense or associating with a felon, we reverse the district court’s revocation of
supervised release for those violations. However, Carter previously admitted to two
other violations, failing to participate in drug testing and failing to follow the
instructions of the probation officer. Those violations remain for resentencing on
remand.
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For these reasons, we REVERSE and REMAND for resentencing in
accordance with this memorandum disposition. The mandate shall issue forthwith.
See Fed. R. App. P. 2.
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FILED
United States v. Carter, 17-10268
MAY 4 2018
WALLACE, J., concurring in part and dissenting in part. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur with the majority in Section I. I dissent from Sections II and III
because the evidence was sufficient to support Charge 3, the new law violation. A
rational trier of fact could have found Carter violated California Penal Code
§ 148(a)(1) based on his 15 to 20 minute delay in coming out of his house. United
States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010).
Three cases discussed by the parties at length govern our review: In re
Chase C., 243 Cal. App. 4th 107 (2015); In re Muhammed C., 95 Cal. App. 4th
1325 (2002); and People v. Quiroga, 16 Cal. App. 4th 961 (1993). Taken together,
these cases stand for the proposition that repeatedly failing to comply with
officers’ orders, or complying slowly, does not necessarily constitute a violation of
section 148, absent an affirmative gesture of defiance by the defendant. Chase, 243
Cal.App.4th at 119; Muhammed C., 95 Cal. App. 4th at 1330; Quiroga, 16
Cal.App.4th at 966. This is true even if the officer has to use some force to induce
the defendant’s compliance. Chase, 243 Cal.App.4th at 119 (handcuffs); Quiroga,
16 Cal.App.4th at 964 (pulling on arm). This rule, however, is not without
limitations. The statute uses the phrase “willfully . . . delay,” so at some point,
delay alone must turn from passive resistance into affirmative defiance. Cal. Penal
Code § 148(a)(1). None of the cases is particularly helpful in this line-drawing
1
exercise; they offer no specifics about the time elapsed from the initial order to
compliance. Here, the district court found as a fact that Carter heard the officers’
announcements, but stayed inside the house. While Carter testified that he waited
to come out until police called his name specifically, his exit also coincided with
when police yelled they were about to break down his door and send in a canine.
The government has the better argument. Viewing the evidence in the light most
favorable to the government, that Carter responded to the officers’ increasingly
serious threats shows he knew they were calling him, and affirmatively defied their
orders to come out. King, 608 F.3d at 1129.
The majority concludes that the officers had no lawful basis to order Carter
outside for arrest, and therefore were not acting lawfully at the time of his
resistance. I disagree. The district court found as a fact that, regardless of what
Carter actually said, the officers reasonably believed he was going to get a gun.
Further, Carter has not challenged this element of section 148. While Carter argues
that he was not under arrest when first ordered to return to the house, nowhere does
he contend that the officers acted unlawfully by later ordering him to exit it. The
officers acted lawfully by ordering Carter to exit the house.
I hold a rational trier of fact could have found Carter violated California
Penal Code § 148(a)(1). King, 608 F.3d at 1129.
2