Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)
Annotate this CaseUNITED STATES of America Plaintiff-Appellee,v.Steven A. DEARING, Defendant-Appellant.
No. 87-1052.
United States Court of Appeals, Ninth Circuit.
Submitted* Nov. 17, 1988.Decided April 12, 1989.
Before PREGERSON, CANBY and BEEZER, Circuit Judges.
MEMORANDUM**
Steven A. Dearing appeals his conviction for disorderly conduct in a national park in violation of 36 C.F.R. Sec. 2.34(a) (2). We affirm.
FACTS
Park Rangers observed Dearing taking opihi1 from the ocean in apparent violation of 36 C.F.R. Sec. 7.25(a) (3), which restricts fishing in the Kalapana extension area of Hawaii Volcanoes National Park to native Hawaiians or visitors under the guidance of native Hawaiians. Dearing became argumentative and complained that the fishing regulation discriminated against him. The rangers brought Dearing to a parking lot, where he continued screaming at them. His wife and child were also at the parking lot. Dearing then suddenly left the parking lot and began walking very fast in a straight line towards Abraham Ahia, an elderly Hawaiian man who was sitting 100 feet away at a picnic table. Ranger Clyne yelled at Dearing to stop, but Dearing continued and Clyne ran after him. Ranger Clyne saw Dearing approach to within a foot or two of Ahia and point his finger at him. When Clyne arrived, Ahia jumped up and yelled that Dearing had threatened him and that he wanted to make a complaint. Ahia was very upset and Dearing's wife assisted in calming him down; Clyne decided to get Dearing away from the scene because " [t]here was still a lot of tension in the air."
DISCUSSION
36 C.F.R. Sec. 2.34(a) (2) proscribes "recklessly creating a risk" of public alarm or nuisance by language or conduct that is "obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace." Dearing contends that he did not violate the regulation because Ahia was alone and thus there was no risk of public alarm. This contention lacks merit.
If a regulation is clear and unambiguous on its face, there is no need to look beyond the language of the regulation itself for its meaning. See Deer v. Carlson, 831 F.2d 1525, 1530 (9th Cir. 1987) (citing Burlington Northern Railroad Co. v. Oklahoma Tax Commission, 107 S. Ct. 1855, 1860 (1987)) (regarding interpretation of a statute). Section 2.34(a) (2) clearly proscribes creating a risk of public alarm by engaging in conduct that is likely to incite a breach of the peace. A reading of the entire regulation2 demonstrates that a risk of public alarm can occur when there are three persons other than the violator present. We therefore hold that section 2.34(a) (2) was intended to prohibit disorderly conduct directed at a single member of the public in a situation where public alarm or nuisance might arise.3 The evidence at trial clearly proved that Dearing's conduct towards Ahia was likely to incite a breach of the peace, and that Dearing's wife and child were only 100 feet away when Dearing accosted Ahia.4
AFFIRMED.
This panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Opihi are salt water mollusks
36 C.F.R. Sec. 2.34 provides:
(a) A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:
(1) Engages in fighting or threatening, or in violent behavior.
(2) Uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.
(3) Makes noise that is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(4) Creates or maintains a hazardous or physically offensive condition.
Because of this conclusion, we need not address Dearing's contention that the regulation was not intended to punish disorderly conduct committed solely in the presence of law enforcement officers
Dearing also contends that Clyne's testimony that Ahia told him that Dearing had threatened him and that he wanted to make a complaint violated both the hearsay rule and the confrontation clause of the sixth amendment. However, both hearsay and confrontation clause violations are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 683-84 (1986) (confrontation clause); United States v. Wilmer, 799 F.2d 495, 501 (9th Cir. 1986), cert. denied, 107 S. Ct. 1626 (1987) (confrontation clause); United States v. Traylor, 656 F.2d 1326, 1333 (9th Cir. 1981) (hearsay and confrontation clause). Excluding the disputed statements, the trial evidence was sufficient to establish beyond a reasonable doubt that Dearing had acted in a manner likely to incite an immediate breach of the peace. Therefore, any hearsay or confrontation clause errors were harmless
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