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United States of America v. James Sherer

May 17, 2012


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


This case came on regularly for trial on March 12, 2012, at the United States District Court in Redding, California, the Honorable Craig M. Kellison, United States Magistrate Judge, presiding; the United States Forest Service [government] appeared by and through Rule 180 Prosecutor, Special Law Enforcement Officer, Joseph Cook, and the defendant, James Sherer [Sherer], appeared by and through retained counsel, Joseph Gazzigli.

The matter proceeds to trial by way of a criminal complaint charging the defendant in Count I of violating 36 C.F.R. § 261.9(b) "[r]emoving any natural feature or other property of the United States;" Count II of violating 36 C.F.R. 261.3(a) "[t]hreatening, resisting, intimidating, or interfering with any forest officer engaged in or on account of the performance of his official duties in the protection, improvement, or administration of the National Forest System;" and Count III of violating 18 U.S.C. 111(a)(1) one who "[f]orcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 114 of this title while engaged in or on account of the performance of official duties."

Prior to the commencement of trial, the Court dismissed Count I on motion of the government, and the Court dismissed Count III upon the conclusion of trial pursuant to Rule 29 F.R.Crim.P.

The remaining charge stems from an investigative stop [contact] on December 17, 2011. While on uniformed patrol that day, Forest Service Law Enforcement Officer Adam Nadeau [Nadeau] observed the Defendant, Jim Sherer exiting National Forest System (NFS) Lands in a truck and trailer loaded with what appeared to be gravel.

Nadeau recognized Sherer from a previous encounter involving the unauthorized removal of firewood from NFS lands. Because Sherer was exiting NFS lands from a road leading from a gravel pit known as the "Loveness Pit," Nadeau effectuated a traffic stop to inquire whether the load was properly permitted.

Since most of the contact was video-recorded, via a dash cam (Exh. 2 'video'), the ensuing conversations and interaction between Nadeau and Sherer are not subject to dispute. The contact began to deteriorate when Sherer was unable to produce either a driver's license or any type of special use permit or authorization for his load of gravel. Complicating matters was Sherer's less than satisfactory demeanor and repeated use of expletives.

Conversely, Nadeau had problems of his own. He appeared unsure how to proceed with an an apparent theft or special use violation coupled with the difficulty he encountered with Sherer. Eventually, Nadeau became frustrated with the situation, and Sherer was arrested for "use without permit," placed in Nadeau's vehicle and taken on a seven hour odyssey on the back roads of northeastern California.*fn1 Sherer then spent the next several days incarcerated.

The government contends that Sherer "interfered" with Nadeau during the contact, while Sherer maintains that he had done nothing to subject himself to arrest and that his resistance, if any, dealt only with seeking answers to his detention.


For purposes of 36 C.F.R. § 261.3(a), a forest officer is performing an 'official duty' when the officer is on duty and performing an act that contributes to the protection, improvement, or administration of the National Forest." United States v. Willfong, 274 F.3d 1297, 1300 (9th Cir.2001) (citing United States v. Ryberg, 43 F.3d 1332, 1334 (9th Cir.1995)). Here, it is clear that Nadeau was performing an "official duty" during his contact with the defendant while investigating the removal of gravel from NFS lands.

In Willfong, the Ninth Circuit held, over a strong dissent, that the defendant's failure to obey a forest officer's order constituted "interference" with the officer as a matter of law, and that defendant's failure to use physical force to do so was irrelevant. 274 F.3d at 1301-1302. As in the present case, the regulation in question was 36 C.F.R. § 261.3(a), and the order in question in Willfong was an order to desist logging operations on Forest Service Land. Defendant politely refused to shut down his operations under threat of arrest, and after his arrest, he told his crew to continue working. The Willfong court cited several state law cases for the proposition that failure to obey an order was sufficient to rise to the level of "interference." See State v. Boone, 243 Ga. 416, 254 S.E.2d 367 (1979), cert. denied, 444 U.S. 898, 100 S.Ct. 206, 62 L.Ed.2d 133 (1979) (refusal to obey order to vacate building constitutes interference); Ratliff v. State, 133 Ga.App. 256, 211 S.E.2d 192 (1974) (refusal to obey order to stop attempting to enter a premises being searched constitutes interference); City of Chicago v. Lynd, 47 Ill.2d 205, 265 N.E.2d 116 (1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1383, 28 L.Ed.2d 662 (1971) (refusal to obey order to clear the street constitutes interference); State v. Manning, 146 N.J.Super. 589, 370 A.2d 499 (App.Div.1977) (refusal to obey order to re-enter vehicle constitutes interference); Township of East Brunswick v. Malfitano, 108 N.J.Super. 244, 260 A.2d 862 (App.Div.1970) (refusal to obey order to provide one's name and address constitutes interference). In discussing a separate regulation concerning public lands (36 C . F.R. § 261.3), the Ninth Circuit consulted Webster's New World Dictionary to define "interfere" as to "oppose, intervene, hinder, or prevent." Willfong, supra at 1301.

The U.S. Supreme Court has adopted a per se rule that "an officer initiating a traffic stop may order passengers out of a vehicle pending completion of the stop." Maryland v. Wilson, 519 U.S. 408, 409 (1997). Similarly, an officer may also confine a passenger to the stopped vehicle. United States v. Williams, 419 F.3d 1029, 1034 (9th Cir.2005) ("under the Fourth Amendment it is reasonable for an officer to order a passenger back into an automobile that he voluntarily exited because the concerns for officer safety originally announced in Wilson, and specifically the need for officers to exercise control over individuals encountered during a traffic stop, outweigh the marginal intrusion on the passenger's liberty interest"). When a vehicle is lawfully stopped the passenger is "for the time being, going nowhere." Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1327 (9th Cir.1995).

A law enforcement officer is permitted to investigate possible criminal behavior or activity even though there is no showing that probable cause to make an arrest of the individual was then extant. Florida v. Royer, 460 U.S. 491 (1983). This is normally referred to as having probable cause to investigate or probable cause to make a "Terry stop." See, for example, Brown v. Texas, 443 U.S. 47, 51 (1979); Terry v. Ohio, 392 U.S. 1 (1968). However, the inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause to arrest. Brown v. Texas, supra. Thus, even though the law gives to law enforcement officers the right to make an investigatory stop of an individual, this right is conditioned that at that time the officer must have "probable cause to investigate", which exists only where the circumstances indicate that the particular person either has committed or is preparing to commit a crime. Therefore, in order to justify temporarily detaining a person for the purpose of conducting a criminal investigation, where the officer does ...

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