The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
MEMORANDUM OF OPINION AND JUDGMENT
This case came on regularly for trial on January 12, 2 011, at the United States District Court in Redding, California, the Honorable Craig M. Kellison, United States Magistrate Judge, presiding; the United States appeared by and through Matthew C. Stegman, Assistant United States Attorney; Robert D. Sweetin, Certified Law Clerk; Michael Weeble, Certified Law Student; and the defendant, Jeffery M. Newman, appeared by and through appointed counsel, Adam Ryan.
The defendant is charged with violating 36 C.F.R. 261.3(a) "[i]nterfer[ing]. [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".
The citation stems from the defendant's actions when meeting with a Forest Service Law Enforcement Officer at his private residence concerning alleged unauthorized special use activity on the Lassen National Forest.
On routine patrol, Law Enforcement Officer Paul Zohovetz [Zohovetz] of the Lassen National Forest observed a sign offering cross-country ski tuning services at a snowpark within the Lassen National Forest. The paper sign was affixed to a larger plywood sign that was placed between two live trees. The view of the sign had been enhanced by the removal of several of the lower branches from the supporting trees.
Zohovetz latter called the phone number appearing on the sign and determined that the individual offering the ski tuning services was the defendant Jeffery M. Newman [Newman]. Newman volunteered that he was affiliated with a group that maintained trails at the snowpark.
Any placement of commercial signage within forest service boundaries generally requires special use authorization. 36 C.F.R. §§ 251.50, et seq. Similarly, the attachment of the plywood sign to live trees and the removal of branches would possibly constitute separate resource violations under the forest service Code of Regulations. See, 36 C.F.R. § 261.9.
While investigating these possible violations, Zohovetz again telephoned Newman requesting his physical address to further discuss the nature of the ski tuning services. During neither of his telephonic conversations with Newman did Zohovetz reveal that he was a forest service law enforcement officer, or that the purpose of the calls was to investigate possible forest service violations.
As a result of Zohovetz's second telephone call to Newman, he was able to arrange a meeting on February 3, 2010 at Newman's residence in Chico, California. Zohovetz arrived at Newman's residence driving an authorized forest service vehicle clearly marked with lights and appropriate signage. Zohovetz was also wearing a forest service uniform. Upon arriving, Zohovetz found Newman at the side of the residence. Zohovetz identified himself and shook hands with Newman. Newman identified himself as Jeff.
Zohovetz began questioning Newman regarding his ski tuning services and the placement of the sign at the snowpark. When questioned about who constructed the sign, Newman indicated that "Larry and I did." Zohovetz then asked Newman for his identification, a point in time that all parties agree that the situation began to deteriorate.
Since the sequence of the subsequent events is crucial to the government's argument that Newman actions constitute a violation of § 261.3(a), the court will center on the sequence of events as described by Zohovetz.
Zohovetz testified that when he asked Newman for his identification, Newman became "more resistant." When asked for his identification, Newman responded by saying "you're trespassing and get off my property." Zohovetz claims that Newman became "more agitated," and again demanded that Zohovetz get off of his property. Zohovetz next testified that Newman then began to crouch, "staggered his stance and affixed his eyes on him." Newman apparently again demanded that Zohovetz get off of his property. Both on cross examination and redirect, Zohovetz testified that Newman negatively reacted to the request for identification by blading his body in a threatening, crouching position with both fist clenched. Zohovetz maintains that at this point he became concerned for his personal safety and drew his taser and ordered Newman to get on his knees and place his hands behind his back. Newman, instead rose and fled from the driveway and entered his home through a side door.
Zohovetz then returned to his vehicle and called for backup law enforcement assistance. During this same period of time, Zohovetz also telephoned his immediate supervisor, Michael Zunino [Zunino], to discuss the ongoing situation. While Zohovetz discussed the situation with Zunino, Newman exited his residence carrying a cell phone and ran toward Zohovetz yelling that "Larry was coming."*fn1 Zohovetz testified that when he first observed Newman running towards him, he was unsure whether Newman was carrying some type of weapon. Zohovetz ordered Newman to stop and noticed that Newman was only carrying a cell phone. Newman then stopped and again returned to his residence.
As Zohovetz discussed the situation with Zunino, Newman telephoned Zohovetz on Zohovetz's cell phone yelling that "you are a liar, I'm going to nail you motherfucker." At trial, Zunino testified that he was also able to hear Newman's statements. Chico police eventually arrived along with Newman's associate, Larry, and the situation was eventually ...