Memorandum of Decision and

CRAIG M. KELLISON, Magistrate Judge.

This case came on regularly for trial on November 28, 2017, 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 Rule 180 Officer, William Cochran, of the National Park Service1; and the defendant, Jason Rollins, appeared by and through certified law students, Julian Davlin and Kyle Hofmeister; assisted by Assistant Federal Defender, Linda Allison.

The matter proceeds by way of a superseding information filed on December 30, 2016, charging the defendant in Count One of violating 36 C.F.R. § 2.35(b)(2), possession of a controlled substance2; Count Two of violating 18 U.S.C. § 13, incorporating Cal. Health & Safety Code § 11364(a), possession of drug paraphernalia3; Count Three of violating 36 C.F.R. § 4.12, failure to obey traffic control devices4; Count Four of violating 36 C.F.R. § 2.23(b), failure to pay recreational use fees5; Count Five of violating 36 C.F.R. § 1.5(f), violation of closure order and public use limitations6; Count Six of violating 36 C.F.R. § 4.2, failure to obey posted signs in violation of State law7; Count Seven of violating 36 C.F.R. § 4.2, incorporating California Vehicle Code § 5902, failure to notify DMV of ownership transfer. Counts Eight and Nine were dismissed by the court on August 17, 2017. [Doc. 34].

Upon complection of the government's case, the defendant moved for a judgment of acquittal pursuant to Rule 29, F.R. Crim. P. The court granted defendant's motion as to Count 7. The court reserved ruling on the remaining counts (Rule 29(b)) and the defendant's case was limited to the introduction of Def. Exh. A, a California medical cannabis prescription (marijuana script) issued to defendant and appearing to be valid during the time in question.

The incident stems from a contact by National Park rangers and the defendant within the Whiskeytown National Recreational Area (Whiskleytown) on or about March 8, 2016.

On the day in question, Whiskeytown Rangers Jeremiah Hockett, Nick Henke and Seth Gayner of Whiskeytown were dispatched to the entrance of gated road leading to the Crystal Creek Boys Camp (Boys Camp) within the interior boundary of Whiskeytown. The Rangers discovered that two unattended vehicles were parked near the gate inside the park boundary, neither of which properly displaying the required Whiskeytown Recreational Passes (entrance passes).

The Rangers observed the defendant, Jason Rollins (Rollins) and a companion on the opposite side of a gate to the road leading to the Boys Camp which was referred to during trial as the "left road." At some point, to the far side of the gate where the defendant was first observed, the land is leased to the state of California. For purposes of this decision, the state land leased to the state of California and Boys Camp are considered synonymous. The court received little evidence as to the actual location of the boundary between Boys Camp and Whiskeytown. For the reasons set forth below, however, this territorial or jurisdictional distinction is not an issue in this case.

Gov. Exhs. 6, 7 and 8 are photographs depicting two signs prohibiting access to the far side of the gate where Rollins and his companion were first observed. One sign affixed to the gate read "no trespassing, violators will be prosecuted" and another sign affixed on an "a frame" barricade (sawhorse) located on the far side of the gate read "state property, keep out, gate no. 50." These photographs were taken nine months after the contact, predictably in anticipation of trial.

Signage and Closed Area.

Counts 3, 4 and 6 of the information charge the defendant with his failure, in some manner, to abide by the prohibitions set forth on the signs located on the left gate and sawhorse and being in in the Boys Camp which was a closed area.

Ranger Hockett, however, was unsure whether any of the signs were present on the day in question. Ranger Henke could not recall whether the sawhorse sign was in an upright position during this contact. Ranger Gayner stated "yes" to the question whether there were any signs indicating the area was closed. Since this was a leading question, and the word "closed" does not actually appear on any of the signs, the court is left without a clear picture of what signage, if any, was present on the day in question.

Although, Counts 3, 4 and 6 do not require proof of mens rea, United States v. Wilson, 438 F.2d 525 (9th Cir.1971) (interpreting a Title 36 C.F.R. violation), this court, out of fairness, has always required some evidence of adequate notice such as proper signage before imposing criminal liability.

Although implied, the court did not receive any evidence to support a finding that the gate to the left road was situated on the Boys Camp/Whiskeytown boundary8. For these reasons, the court will grant defendant's Rule 29(b) motion.

Entrance Fee.

In Count 4, the defendant is charged with failing to pay Whiskeytown's entrance fee in violation of § 2.23(b). To establish a violation of 36 C.F.R. § 2.23(b) the government must prove the following elements:

(1) That the offense occurred within the interior boundaries of Whiskeytown;

(2) That Whiskeytown is a designated Federal recreation fee use area; (See 36 C.F.R. §§ 71.1 et. seq.)9;

(3) That the defendant entered Whiskeytown without paying the required entrance fee.

Ranger Hockett testified that upon his arrival at the closed gate to the left road, he was unable to locate the required entrance fee pass in the Nissan pick-up. Ranger Henke asked the defendant and his companion "about recreational passes," but his testimony was incomplete leaving the court unable to determine if and how the defendant responded to this inquiry. The court is satisfied that the pick-up belonged to the defendant. Ranger Henke testified that the defendant admitted to the same during the contact. It is too simple to argue, however, that the mere absence of the entrance fee pass from the defendant's pick-up satisfies the government's case. As with many cases, the pass could have been on the floorboard, in the defendant's pocket or elsewhere. It is not for the court to argue the defendant's case, but it is also not the court's responsibility to assume by osmosis that the absence of the entrance pass from the windshield equates to a finding of guilt. Although it is clear that the defendant was within the interior boundaries of Whiskeytown, it was not proven that he failed to pay the entrance fee. The government offered no evidence as to how Whiskeytown imposes its entrance fee. Although the entrance fee appears to be applicable to individuals (as opposed to vehicles) entering National Park property, Whiskeytown chooses to enforce compliance upon individuals by requiring vehicles to display the entrance fee pass on the windshield10. Since the court did not receive any evidence how Whiskeytown imposes and enforces its entrance fee requirement, it is difficult to find the defendant guilty, without more, for simply failing to display his entrance fee pass in his vehicle. For this reason, the court grants defendant's Rule 29(b) motion.

Marijuana Cigarette.

After determining the defendant's identity, Rollins was arrested by the Whiskeytown rangers on an outstanding state warrant. In searching the vehicle, Hockett discovered what he believed was a hand-rolled marijuana cigarette (joint) and a glass pipe containing residue consistent with methamphetamine use (meth pipe). It does not appear that either Rangers Gayner or Henke were involved in the physical search of defendant's vehicle. Gayner testified that his involvement with the joint and meth pipe was limited to "putting [them] into evidence."

Officer Henke identified the joint as "marijuana," and supported this conclusion by testifying about his experience and attendance and participation in numerous classes and academies throughout his career that emphasized drug recognition and identification. Henke also testified that he has been involved in more than 500 hundred cases involving marijuana during his employment at Whiskeytown. Ranger Gaynor testified that he was responsible for "putting the [joint] in evidence" He also described his history and experience in marijuana arrests and familiarity with the drug.

Defendant challenges this count on several fronts. He first argues that there was never any type of tests performed on the joint. The rangers did not conduct either a field test or a subsequent lab test to establish that the joint contained marijuana11. Defendant contends that the rangers' testimonies based on personal observation, education and experience are individually and collectively insufficient to sustain a conviction.

The court agrees. Proof of the joint being marijuana can be circumstantial and proved by experienced law enforcement officers. With respect to marijuana (excluding other types of controlled substances), an officer's familiarity with its properties based on past experience coupled with present observation or identification may be sufficient to establish its identity. Unlike other controlled substances, marijuana is not an extract or preparation difficult or impossible to characterize without chemical analysis, but consisting of the dried leaves, stems, and seeds of a plant which anyone reasonably familiar therewith should be able to identify by appearance.

Here, we have no such testimony. Gov. Exh. 2 was simply a hand rolled cigarette. Without evidence that the rangers inspected the cigarette's contents, the identification appears to be nothing more than an educated guess.

Defendant next contends that defendant possessed a valid marijuana script, an affirmative defense under § 2.35(b). Def. Exh. A. The language in this section prohibits the possession of marijuana within National Parks "unless [it was obtained] pursuant to a valid prescription or order." The language set forth in defendant's marijuana script (Def. Exh. A) does not support this interpretation. The controlling language in the script provides that "patient understands that the use of cannabis remains illegal under Federal Law and that neither the physician nor the physician's employees have indicated otherwise".

For the reasons stated, the court grants defendant's Rule 29(b) motion.

Meth Pipe.

Along with the discovery of the joint in defendant's vehicle, Ranger Hockett also found what he describes as a "meth pipe."12

As with the joint, the rangers all identified the pipe as a "meth pipe" based again on their knowledge, experience and education.

Defendant again argues that proof that the pipe constituted "drug paraphernalia" under Cal. Health & Safety Code § 11364(a) is insufficient since there was neither a field test nor a lab test to establish that the residue in the bowl was in fact methamphetamine (meth). The court agrees.

Although Ranger Hockett sufficiently describes discovering a "black and white residue" in the bowl of the pipe, he admits that it was an insufficient amount to test. Ranger Henke testified the pipe was a "glass meth pipe with residue," but the court is unclear whether he was identifying Gov. Exh. 1, or simply the language written on the evidence report.

Unlike marijuana, the identification of methamphetamine residue may require more than the simple identification by trained officers based on their experience and education. Had these factors been more adequately developed during trial, the court might have considered ruling otherwise. This, however, did not occur. Ranger Hockett testified that his involvement in "other cases" involving methamphetamine, he would routinely test the residue where there existed a "testable amount." From this testimony, it must follow that the residue in this case was apparently insufficient for testing. Without expert testimony, the court must ask whether an amount insufficient for testing is also an amount insufficient for visual identification.

Ranger Henke simply identified Gov. Exh.1 as a "meth pipe" without further description. Ranger Gayner described the residue in the pipe as "[j]ust burnt out crusty looked like meth". Ranger Gayner also testified that the pipe itself did not constitute "drug paraphernalia" per se and could be purchased legally in the marketplace. Thus, if the pipe was used in California with recreational marijuana, it would not be considered drug paraphernalia. The court is then left with a legal pipe having an untestable amount of residue.

For the reasons stated, the court grants defendant's Rule 29(b) motion.

CONCLUSION

The court grants defendant's motion for judgment of acquittal pursuant to Rule 29(b), F.R. Crim. P.