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UNITED STATES v. MATHER

October 27, 1995

UNITED STATES OF AMERICA
v.
GARY P. MATHER; UNITED STATES OF AMERICA v. GREGORY B. LINN



The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 October 27, 1995

 Gary P. Mather and Gregory B. Linn appeal their convictions for open lewdness and disorderly conduct in a national park. The Government has, since the filing of their notices of appeal, withdrawn the open lewdness charges, and thus, although we shall affirm the disorderly conduct convictions, we shall remand for resentencing.

 I. Factual Background

 On June 13, 1995, at about 5:30 p.m., Ranger Duane Buck *fn1" was on foot patrol in the picnic area of Valley Forge National Historical Park when he observed a male, wearing a white dress shirt and brown slacks, walk from the upper to the lower section of Varnum's Woods, just off the parking lot, and continue east along a foot path. August 2, 1995 Notes of Testimony of hearing before Magistrate Judge Charles B. Smith ("N.T.") at 3. Knowing that people had previously engaged in open sex in that area of the park, Ranger Buck remained where he was. Id. Two minutes later, another male, also in a white dress shirt and slacks, followed the first man down the foot path. Id. The Ranger followed the men from a distance until the men left the trail after about 150 yards. Id. at 4.

 Reaching the end of the footpath, Ranger Buck momentarily lost sight of the men, until he detected them about fifteen yards ahead of him inside the tree line. Id. The two men, later identified as appellants Gary P. Mather and Gregory B. Linn, were standing with their trousers down, masturbating in front of one another. Id. The Ranger testified that he observed Linn then perform fellatio on Mather. *fn2" Id. After about two minutes, Ranger Buck ordered the men to come out of the woods, at which point they quickly dressed and began to walk away. Id. Ranger Buck ordered the men to halt, but they continued to flee. Id. The Ranger pursued them and they eventually stopped. Ranger Buck then led them from the woods into an open field. Id.

 After Ranger Buck called for assistance, Mather agitatedly asked him, "Why don't you go harass some straight people?" and remarked to Linn that the Ranger was out to get his "quota". Id. at 5. Ranger Buck handcuffed the appellants to one another, escorted them to the parking lot and placed them in the back seat of a squad car. Id. Ranger Buck arrested the appellants for disorderly conduct in violation of 36 C.F.R. § 2.34(a)(2) *fn3" and open lewdness in violation of 18 Pa. Cons. Stat. Ann. § 5901. *fn4" Id. Mather was also charged with interference with agency function in violation of 36 C.F.R. § 2.32(a)(1). *fn5" Id.

 On August 2, 1995, the appellants were convicted of disorderly conduct and open lewdness at a bench hearing before United States Magistrate Judge Charles B. Smith. Id. at 8. Magistrate Judge Smith fined the appellants $ 400 each, and imposed a one-year term of probation, a condition of which was that both must stay out of Valley Forge National Historical Park. Id. at 8. Mather and Linn filed timely appeals. Fed. R. Crim. P. 58(g)(2)(B); Fed. R. App. P. 4(b). On appeal, the Government has, as noted, withdrawn the open lewdness charges. Govt. Brief at 1.

 II. Legal Analysis

 Magistrate Judge Smith had jurisdiction at the August 2 hearing pursuant to 28 U.S.C.A. § 3401(a) (1985). We have jurisdiction over this appeal pursuant to 18 U.S.C.A. § 3402 (Supp. 1995). Our review of a Magistrate Judge's findings is the same as the review the Court of Appeals conducts over a District Court decision. Fed. R. Crim. P. 58(g)(2)(D); United States v. Jenkins, No. 91-147, 1991 WL 101423, 1991 U.S. Dist. LEXIS 7809 (E.D. Pa. 1991).

 The regulation governing disorderly conduct, 36 C.F.R. § 2.34(a)(2) (1995), provides, in pertinent part:

 
(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 ...

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