dissenting:
. 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.
According to the majority opinion, Bucher interfered with the ranger’s duty by causing Jacobs to feign unconsciousness for six to eight hours. Curiously that remarkable piece of playacting was unknown to the government lawyer who prosecuted Bucher. It is fair to infer that Bucher spoke to Jacobs and told him of the ranger’s plan. But did this warning interfere with rangers?- The majority opinion engages in genuinely ingenious invention in supposing that Bucher’s words led Jacobs *935to feign fainting and play possum. No testimony supports this imaginative scenario.
The trail Jacobs was on was five miles in length. It went steeply up from a crater. It takes “the average person” in good physical health three to four hours to hike out. Jacobs was only 20 minutes behind Bucher, so he must have been close to the trail’s end and had been climbing up a sharp slope for over three hours. We have no information as to his health. We do know his age — 79. It is fair inference that a person of that age is not the average person hiking. Jacobs had been exercising strenuously for several hours.
According to the testimony that was elicited by the government from a ranger, at the time that Jacobs saw the rangers approaching, he “fell into an unconscious state.” The rangers summoned an ambulance. It arrived after three or four hours. Jacobs was then taken to a hospital. According to the ranger: “After three or four hours, Mr. Jacobs decided that he would (inaudible) basically that he found out that we were going to stay there until the medical was cleared. Once he found out that he was not going to leave, he became suddenly well and was released from the hospital on his own recognizance.” In short, 6 to 8 hours after his falling unconscious, Jacobs was found to be conscious and well enough to leave.
On cross-examination, the ranger testified: “By the time we got to Mr. Jacobs he was unconscious.” The ranger was then asked as to Jacob’s state when brought to the ambulance:
Q. And he was unconscious that whole time?
A. He was unconscious (inaudible).
Q. Okay. But he was unconscious, he was faking being unconscious.
A. It came to the medical people’s attention that he was faking—
Q. Being unconscious.
It is only Bucher’s counsel who supplies the statement “he was faking being unconscious.” The ranger only gives the information as to the belief of the medical people in the hospital 6 to 8 hours after Jacobs was removed from the trail. When the government had the chance to reexamine the ranger, this exchange took place:
Q. So it was only after Mr. Jacobs talked to the defendant and then upon seeing you that he became or appeared to become ill?
A. That’s correct.
Q. And the fact that Mr. Jacobs had this illness or feigned this illness— whichever it was — did that, what extra activity caused you to have to do?
A. It caused us to call an ambulance and bring on a crew from the, from Kola and take to the hospital (inaudible) three or four hours of (inaudible).
Q. Nothing further.
In short, with no testimony on direct that Jacobs feigned unconsciousness, the government on redirect explicitly referred to Jacobs either having an illness or feigning an illness, “whichever it was.” It is truly remarkable that the prosecutor, knowledgeable about the facts, examining a percipient witness as to what had happened, did not elicit any testimony that Jacobs was playing possum. That was left to the imagination of this court.
The facts testified to by the ranger are that between 6 to 8 hours after Jacobs appeared to be unconscious he revived at the hospital. That one could successfully bluff for such a long period deceiving experienced rangers, ambulance personnel, and hospital personnel is highly unlikely. In any event, 6 to 8 hours of bluffing was not testified to by any witness.
*936Suppose one assumes that Jacobs fainted when he saw the.rangers because he knew through Bucher’s warning that they were coming to arrest him. In that event, Bucher’s warning would have interfered with the rangers’ work. But one would reach that conclusion by one’s initial assumption as to why Jacobs fainted. The conclusion is not supported by testimony, nor is it argued by the government.
The government does not contend that Bucher is to be held responsible for interfering with the ranger if the 79-year-old Jacobs, apprehensive at their appearance, became ill. Nor did the government emphasize the colorful playing possum theory advanced by my colleagues. The government’s theory in its brief on this appeal is as follows: .
Boxx (and the other Rangers) had planned to arrest Jacobs when he emerged from Crater Trail. Instead, because of Bucher’s interference, the Rangers had to undertake the more difficult task of apprehending Jacobs along the precipitous trail. Had Jacobs successfully retreated to the crater floor, he might have received assistance from others, and/or prevented rangers from ascertaining his true identity (TR 16). Moreover, the (apparent) advance warning of impeding arrest removed the tactical element of surprise, and enabled Jacobs to feign unconsciousness, making his (eventual) arrest more problematic.
Just as no evidence supports the government’s contention that Jacobs feigned unconsciousness on the trail, so no testimony supports the government’s contention that the rangers were forced to change then-plans to the disadvantage of their investigation. On that score, the ranger testified on cross-examination:
The only worries were that it would prolong the investigation if he went back into the crater.
But Jacobs did not go back into the crater or take any action to evade arrest.
Conclusion. 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. I respectfully dissent.