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NOT FOR PUBLICATION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.”

2 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).

3 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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