United States v. Arian Cebreros ( 2019 )

FILED
NOT FOR PUBLICATION
OCT 3 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50043
Plaintiff-Appellee, D.C. No.
3:17-cr-00800-PCL-JAH-1
v.
ARIAN CEBREROS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted September 13, 2019
Pasadena, California
Before: BERZON, R. NELSON, and BADE, Circuit Judges.
Appellant Arian Cebreros appeals his conviction for misdemeanor impeding
a federal officer in violation 41 C.F.R. § 102-74.390, arguing (1) he did not have
actual notice his conduct was illegal and (2) his requests for further discovery on
the officers’ disciplinary records should have been granted. We review the claim
of insufficient evidence de novo, United States v. Stanton, 501 F.3d 1093, 1099
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(9th Cir. 2007), and the discovery ruling for abuse of discretion, United States v.
Doe, 705 F.3d 1134, 1149–50 (9th Cir. 2013). We affirm.
1. 41 C.F.R. § 102-74.390, in relevant part, prohibits “[a]ll persons entering
in or on Federal property” from “exhibiting disorderly conduct or exhibiting other
conduct on property that . . . [o]therwise impedes or disrupts the performance of
official duties by Government employees.” Federal agencies must post notice of
the regulation “at each public entrance to each Federal facility.” 41 C.F.R. § 102-
74.365. This court has not decided whether such a posting is a required element for
a conviction under 41 C.F.R. § 102-74.390, but because the government does not
challenge Cebreros’s assertion that it is a required element, we do not decide the
question in this case. If, however, posting is required, this element can be satisfied
where a defendant has actual notice that conduct is prohibited by the regulation.
United States v. Bichsel, 395 F.3d 1053, 1056-57 (9th Cir. 2005).
Here, there is sufficient evidence to find that Cebreros had actual notice.
Cebreros maintains that actual notice requires the defendant to be informed of both
(1) the exact conduct that is unlawful and (2) the possibility of jail time if he
continues in the unlawful conduct. He argues the Customs and Border Protection
(CBP) officer’s warning that assaulting or kicking an officer was illegal did not
provide him actual notice that refusing a pat down search was illegal. But Bichsel
did not establish a two-prong test. “At some point, common sense must prevail.”
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Id. at 1057 (internal quotation marks omitted and brackets omitted). Cebreros was
both warned that the officers had a duty to perform the pat down search and
informed that he could be arrested for kicking an officer. After receiving both
warnings, Cebreros certainly had actual notice that any subsequent assaultive or
resistive behavior was unlawful and could lead to his arrest. Despite this actual
notice, Cebreros continued to resist—he threatened to head-butt an officer and
made a headbutting motion towards him. Cebreros’s challenge to his conviction
fails as a result. See Bichsel, 395 F.3d at 1057.
2. The district court did not abuse its discretion in denying Cebreros’s
discovery request for all complaints against the CBP officers. The prosecutor
requested such information from CBP and turned over anything the prosecutor
received to the defense or provided it to the magistrate judge in an ex parte
submission. Each of the officers was also questioned, and none were aware of any
complaints against them. At most, then, the only remaining evidence would be
unsubstantiated complaints not contained in the “career records or disciplinary
records” of the officers about which they were personally unaware. There is no
evidence that the government did not comply with its duty to conduct a review of
the relevant personnel files or that the information, if it existed, was material to the
defense. Cf. United States v. Jennings, 960 F.2d 1488, 1491–92 (9th Cir. 1992).
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And, upon independent review, the district court correctly decided that the material
submitted ex parte to the magistrate judge did not need to be provided to Cebreros.
Nor did the district court err in refusing to order the prosecutor to run
independent criminal histories on the officers. CBP already performs such checks
as part of the United States Attorney’s Office’s official policy under United States
v. Henthorn, 931 F.2d 29 (9th Cir. 1991). As a result, further discovery on this
point was unnecessary.
AFFIRMED.
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