and Submitted August 29, 2017 Seattle, Washington
from the United States District Court for the District of
Montana D.C. No. 6:15-cr-00007-DWM-1 Donald W. Molloy, Senior
District Judge, Presiding
Michael Donahoe (argued), Deputy Federal Public Defender;
Anthony R. Gallagher, Federal Defender; Federal Defenders of
Montana, Helena, Montana; for Defendant-Appellant.
David Gunter II (argued) and Robert Stockman, Attorneys; John
C. Cruden, Assistant Attorney General; Environment &
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Bryan R. Whittaker and Eric E.
Nelson, Office of the United States Attorney, Helena,
Montana; for Plaintiff-Appellee.
I. Roots, Livingston, Montana, for Amici Curiae The
Constitution Society and Founder and President Jon Roland.
Anthony L. François, Pacific Legal Foundation,
Sacramento, California, for Amici Curiae Chantell and Michael
Sackett, John Duarte, and Duarte Nursery Inc.
Before: M. Margaret McKeown and Ronald M. Gould, Circuit
Judges, and Barbara Jacobs Rothstein, [*] District Judge.
panel affirmed convictions for violating the Clean Water Act
(CWA) by knowingly discharging dredged or fill material from
a point source into a water of the United States without a
permit; willfully injuring and committing depredation of
property of the United States, causing more than $1, 000
worth of damage to the property; and knowingly discharging
dredged or fill material from a point source into a water of
the United States on private property without a permit.
defendant's first trial ended with a hung jury, and the
defendant was convicted after a second trial.
panel rejected the defendant's contention that the
Government did not establish that there was jurisdiction
under the CWA. The panel held that Northern California
River Watch v. City of Healdsburg, 496 F.3d 993 (2007)
(holding that Justice Kennedy's concurrence in
Rapanos v. United States, 547 U.S. 715 (2006), is
the controlling test for determining CWA jurisdiction), is
not clearly irreconcilable with United States v.
Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), and
remains binding precedent. The panel held that the district
court did not err in determining that CWA jurisdiction
existed under the "significant nexus" test set
forth in Justice Kennedy's concurrence in
panel rejected the defendant's contentions that the
statutory term "waters of the United States" is
unconstitutionally vague and that he did not have fair
warning of the meaning of that term.
panel held that a criminal defendant cannot challenge the
sufficiency of the evidence at a previous trial following
conviction at a subsequent trial. The panel therefore deemed
foreclosed the defendant's argument that the district
court should have granted his motion to acquit after the jury
deadlocked at his first trial.
panel held that the district court did not abuse its
discretion in allowing the Montana State Program Manager for
the Army Corps of Engineers and Supervisory Civil Engineer to
testify as an expert witness. The panel held that the
district court did not abuse its discretion in excluding an
Army Corps of Engineers guidance manual or a crystal mine
October 2013 and October 2014, Joseph David Robertson
excavated and constructed a series of ponds on National
Forest System Lands and on the privately owned Manhattan Lode
mining claim. In the process of creating these ponds,
Robertson discharged dredged and fill material into the
surrounding wetlands and an adjacent tributary, which flows
to Cataract Creek. Cataract Creek is a tributary of the
Boulder River, which in turn is a tributary of the Jefferson
River-a traditionally navigable water of the United States.
Robertson was warned by an EPA Special Agent that his
activities "very likely" required permits. Yet, he
did not get permits to build the ponds or to discharge
dredged or fill material into waters of the United States.
Forest Service soon learned of Robertson's activities.
And on May 22, 2015, a grand jury charged Robertson with
three criminal counts. Count I charged Robertson with
knowingly discharging dredged or fill material from a point
source into a water of the United States without a permit in
violation of the Clean Water Act (CWA), 33 U.S.C. §
1251-1388. Count II charged Robertson with willfully injuring
and committing depredation of property of the United States,
namely National Forest Service Land, causing more than $1,
000 worth of damage to the property, in violation of 18
U.S.C. § 1361. Count III charged Robertson with another
CWA violation for knowingly discharging dredged or fill
material from a point source into a water of the United
States on private property without a permit.
initial jury trial was held from October 5 to October 8,
2015. At the close of the Government's case and at the
close of the presentation of evidence, Robertson
unsuccessfully moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29. That first jury trial
ended with a hung jury, and the judge declared a mistrial.
Robertson again moved for acquittal on all three counts,
arguing that the Government's evidence was insufficient
to sustain a conviction. The district court denied this
second jury trial was held from April 4 to April 7, 2016.
Robertson again moved for acquittal on all three counts after
the close of the Government's case and at the close of
evidence. And the district court again denied both motions.
On April 7, 2016, the jury returned guilty verdicts on all
three counts. On April 21, 2016, Robertson renewed his
motions for acquittal and moved for a new trial. The district
court denied those motions, concluding that the verdict was
supported by sufficient evidence.
timely filed this appeal, over which we have jurisdiction
pursuant to 28 U.S.C. § 1291.
argues (1) that the Government did not establish that there
was CWA jurisdiction, and (2) that he lacked fair warning of
the scope of CWA jurisdiction. He also (3) challenges the
sufficiency of evidence at an earlier trial that ended in a
mistrial; (4) appeals some evidence rulings; and (5) contests
the calculation of restitution.
review the district court's interpretation of the
jurisdictional bounds of the CWA de novo. See
United States v. Lewis, 67 F.3d 225, 228 (9th Cir.
1995). We also review whether a statute is unconstitutionally
vague de novo. See United States v. Cooper,
173 F.3d 1192, 1202 (9th Cir. 1999). We review the challenged
evidence rulings and a challenge to the district court
permitting an expert to testify for abuse of discretion.
See United States v. W.R. Grace, 504 F.3d 745, 759
(9th Cir. 2007); United States v. Layton, 767 F.2d
549, 553 (9th Cir. 1985).
first at the CWA jurisdiction issue. To assess
Robertson's arguments on these points, some background on
the CWA and the cases that have interpreted it is necessary.
Congress enacted the CWA "to restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). To meet
this goal, the CWA prohibits the discharge of dredge or fill
material into "navigable waters" unless authorized
by a permit from the Secretary of the Army through the Army
Corps of Engineers ("the Corps"). Id.
§§ 1311(a), 1311(d), 1344(a). Any person who
knowingly violates ...