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United States v. Robertson

United States Court of Appeals, Ninth Circuit

November 27, 2017

United States of America, Plaintiff-Appellee,
v.
Joseph David Robertson, Defendant-Appellant.

          Argued and Submitted August 29, 2017 Seattle, Washington

         Appeal 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.

          John 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.

          Roger 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.

         SUMMARY [**]

         Criminal Law

         The 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.

         The defendant's first trial ended with a hung jury, and the defendant was convicted after a second trial.

         The 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 Rapanos.

         The 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.

         The 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.

         The 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 study.

          OPINION

          GOULD, Circuit Judge

         Between 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.

         The 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.

         Robertson's 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 motion.

         Robertson's 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.

         Robertson timely filed this appeal, over which we have jurisdiction pursuant to 28 U.S.C. § 1291.

         I

         Robertson 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.[1]

         We 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).

         II

         We look 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. ยงยง 1311(a), 1311(d), 1344(a). Any person who knowingly violates ...


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