                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 27 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50239

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00814-DMG-1
 v.

NOAH HUIZAR,                                    MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                    Argued and Submitted November 14, 2018
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and AMON,** District Judge.

      Noah Huizar was convicted of violating 41 C.F.R. § 102-74.385, which

requires that persons on federal government property “comply with . . . the lawful

direction of Federal police officers and other authorized individuals.” 41 C.F.R. §

102-74.385. The magistrate judge who presided over the bench trial imposed a $50


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
fine. The district court affirmed Huizar’s conviction and fine, which he now

appeals.

      Huizar’s conviction stems from an incident at a Social Security

Administration (SSA) office in Norwalk, California, in 2015. While attempting to

get information about his son’s social security benefits, Huizar became

argumentative and rude to an SSA employee. Because Huizar was creating a scene,

a security guard approached and informed Huizar that it was “time for [him] to

leave.” Seconds later, according to the security guard’s testimony, the guard placed

his hand on Huizar’s shoulder and began to escort him from the building. As the

two moved towards the exit, Huizar complained that the guard was pushing him.

Huizar eventually turned to face the security guard. The security guard believed

Huizar, who was 79 years-old at the time, threatened to break his arm. The guard

then physically subdued Huizar, handcuffed him, and Huizar was eventually issued

a citation for violating § 102-74.385 – a Class C misdemeanor punishable by fine

of up to $5,000 or 30 days imprisonment. See 41 C.F.R. § 102-74.450; 18 U.S.C. §

3559(a)(8); 18 U.S.C. § 3571(b)(6).

      Huizar challenges his conviction on a variety of grounds. However, we need

only address one to decide the appeal: the sufficiency of the “lawful direction”

Huizar received. In challenging the sufficiency of the direction, Huizar relies on

other cases that sustained convictions under § 102-74.385 or analogous


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regulations. In each case, officers gave defendants an unambiguous command

(often multiple times); officers ensured that the command was understood; officers

communicated that defendants would be arrested for failing to comply with the

order; and defendants were given a reasonable opportunity to comply. See, e.g.,

United States v. Stansell, 847 F.2d 609, 610 (9th Cir. 1988); United States v.

Bichsel, 395 F.3d 1053, 1057 (9th Cir. 2005); see also United States v. Poocha,

259 F.3d 1077, 1083 (9th Cir. 2001) (noting evidence of failure to comply with a

lawful order was “far from overwhelming,” even where ranger gave order twice,

the order was clearly understood and refused, and a second ranger threatened

arrest). Indeed, basic principles of due process likely require that any “lawful

direction” contain all, or many, of these qualities. See Kolender v. Lawson, 461

U.S. 352, 357-60 (1983).

      The direction Huizar received – “it’s time for you to leave” – lacked these

necessary elements. The direction was not clear. It was not repeated to ensure it

was understood. Nothing suggests Huizar knew he could be arrested for failure to

comply. Nor does it appear, based on all the facts, that Huizar was given a

reasonable opportunity to comply with the order.

      The direction Huizar received is thus insufficient to sustain a conviction for

violating § 102-74.385. Though Huizar’s conduct at the Social Security office was

unacceptable, under the circumstances presented by this case, it was not unlawful.


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      We therefore REVERSE Huizar’s conviction and sentence and REMAND

to the district court with instructions to dismiss the case.




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United States v. Huizar, No. 17-50239                                      FILED
AMON, District Judge, dissenting:                                           FEB 27 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
      I respectfully dissent.

      When reviewing a challenge to the sufficiency of the evidence, we construe

the evidence in the light most favorable to the prosecution, determining “whether

‘any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1161 (9th

Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). As

the reviewing court, we may not ask whether we ourselves believe that the

evidence at trial established guilt beyond a reasonable doubt—“only whether ‘any’

rational trier of fact could have made that finding.” Id. at 1164 (citation omitted).

In my view, a reasonable factfinder could have concluded that the evidence was

sufficient to convict Huizar of failure to comply with a “lawful direction” from an

authorized individual. 41 C.F.R. § 102-74.385.

      Whether the phrase “it’s time for you to leave” constitutes a “lawful

direction” is a fact-bound and context-specific determination. The phrase “it’s

time for you to leave” could be considered a command, if said in a demanding tone

following a hostile altercation. It could also fall short of a command, if said in a

benign tone in a subdued environment. Context matters, and it can render even a

polite request or statement—such as “sir, please come with me” or “let’s go”—an
unambiguous command. Indeed, officers in highly charged situations such as this

one may intentionally use less imperious language to defuse situations or secure

compliance. But it does not mean that their words are not nonetheless directions.

      In this case, the security guard told Huizar “it’s time for you to leave” after

Huizar was argumentative and rude to a Social Security employee and “forced his

way in through the window, crawled under the barrier glass and obtained [his

son’s] I.D. and paperwork.” And after the guard told Huizar “it’s time for you to

leave,” Huizar “stood there and remained argumentative and cussing and using

foul language,” suggesting that he knew he had been directed to leave and was

unwilling to comply with that direction. In light of the disturbance Huizar created

and his hostile response to the guard, a reasonable factfinder could have found that

Huizar had received a “lawful direction.”

      Given the fact-bound and context-specific nature of the inquiry, I would

conclude that it was within the realm of reason for the Magistrate Judge—who was

closer to the evidence and witnesses presented at trial than this Court—to conclude

that Huizar received a “lawful direction” and failed to comply with it.

Accordingly, and because I find Huizar’s remaining contentions to be without

merit, I would affirm Huizar’s conviction and fine.




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