United States v. Joseph Robertson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30178

Plaintiff-Appellee,

D.C. No.

v. 6:15-cr-00007-

DWM-1

JOSEPH DAVID ROBERTSON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Senior District Judge, Presiding

Argued and Submitted August 29, 2017

Seattle, Washington

Filed November 27, 2017

Before: M. Margaret McKeown and Ronald M. Gould,

Circuit Judges, and Barbara Jacobs Rothstein, *

District Judge.

Opinion by Judge Gould

*

The Honorable Barbara Jacobs Rothstein, United States District

Judge for the Western District of Washington, sitting by designation.

2 UNITED STATES V. ROBERTSON

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.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. ROBERTSON 3

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.

COUNSEL

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.

4 UNITED STATES V. ROBERTSON

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.

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,

UNITED STATES V. ROBERTSON 5

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

6 UNITED STATES V. ROBERTSON

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. §§ 1311(a), 1311(d), 1344(a). Any person

who knowingly violates § 1311 by discharging a pollutant

without a permit “shall be punished” by a fine,

imprisonment, or both. Id. § 1319(c)(2).

1

We address and reject Robertson’s challenge to the district court’s

ruling compelling Robertson to bear a part of the costs of his defense in

the concurrently filed memorandum disposition.

UNITED STATES V. ROBERTSON 7

At issue on jurisdiction is the meaning of “navigable

waters,” and the reach of the CWA. “Navigable waters” is

defined as “the waters of the United States, including the

territorial seas.” Id. § 1362(7). For there to be CWA

jurisdiction here then, the creek and wetlands that Robertson

polluted had to be “waters of the United States.”

The reach of the Corps’ jurisdiction over “navigable

waters” is controversial and has been the subject of many

Supreme Court cases. See, e.g., United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121 (1985) (upholding a

Corps’ regulation that extended the Corps’ authority under

§ 1344 to wetlands “adjacent to navigable or interstate

waters and their tributaries”); Solid Waste Agency of N. Cook

Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)

(invalidating the Corps’ “Migratory Bird Rule” because the

Corps does not have CWA jurisdiction over non-navigable,

isolated, intrastate waters that are not adjacent to open

water).

Central to this appeal is the Supreme Court’s fractured

4-1-4 decision, Rapanos v. United States, 547 U.S. 715

(2006). In that case, the Court confronted the issue of

whether wetlands, which did not contain or directly abut

traditionally navigable waterways, were “waters of the

United States” subject to the Corps’ jurisdiction under the

CWA. See id. at 729–30 (plurality); id. at 759 (Kennedy, J.,

concurring in the judgment). In answering this question, the

Court had to address whether the Corps’ regulations were a

permissible interpretation of the CWA. The regulations had

interpreted “waters of the United States” very broadly,

including not just traditionally navigable interstate waters,

but also

“[a]ll interstate waters including interstate

wetlands,” [33 C.F.R.] § 328.3(a)(2); “[a]ll

8 UNITED STATES V. ROBERTSON

other waters such as intrastate lakes, rivers,

streams (including intermittent streams),

mudflats, sandflats, wetlands, sloughs,

prairie potholes, wet meadows, playa lakes,

or natural ponds, the use, degradation or

destruction of which could affect interstate or

foreign commerce,” [id.] § 328.3(a)(3);

“[t]ributaries of [such] waters,” [id.]

§ 328.3(a)(5); and “[w]etlands adjacent to

[such] waters [and tributaries] (other than

waters that are themselves wetlands),” [id.]

§ 328.3(a)(7). The regulation defines

“adjacent” wetlands as those “bordering,

contiguous [to], or neighboring” waters of the

United States. [Id.] § 328.3(c). It specifically

provides that “[w]etlands separated from

other waters of the United States by man-

made dikes or barriers, natural river berms,

beach dunes and the like are ‘adjacent

wetlands.’” [Id.]

Rapanos, 547 U.S. at 724 (plurality).

The plurality opinion, authored by Justice Scalia, and

joined by Chief Justice Roberts, and Justices Thomas and

Alito, concluded that the Corps’ regulations were not “based

on a permissible construction of the statute.” Id. at 739

(quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council,

467 U.S. 837, 843 (1984)). The plurality held that “the

phrase ‘the waters of the United States’ includes only those

relatively permanent, standing or continuously flowing

bodies of water ‘forming geographic features’ that are

described in ordinary parlance as ‘streams[,] . . . oceans,

rivers, [and] lakes.’” Id. (quoting Webster’s Second 2882)

(alterations in original). The term, according to Justice

UNITED STATES V. ROBERTSON 9

Scalia’s opinion, “does not include channels through which

water flows intermittently or ephemerally, or channels that

periodically provide drainage for rainfall.” Id. The plurality

went on to conclude that wetlands are covered by the CWA

only if two conditions are met: first, “the adjacent channel

contains a ‘wate[r] of the United States,’ (i.e., a relatively

permanent body of water connected to traditional interstate

navigable waters);” and second, “the wetland has a

continuous surface connection with that water, making it

difficult to determine where the ‘water’ ends and the

‘wetland’ begins.” Id. at 742 (alteration in original). The

plurality ultimately remanded the case to the lower court so

that it could determine, in the first instance, whether the

wetlands at issue were subject to the CWA under the new

standard.

Justice Kennedy, providing the fifth vote supporting the

judgment concurred in the judgment but rejected the

plurality’s test and outlined his own test to determine

whether a wetland that is not adjacent to and does not contain

a navigable-in-fact water is subject to the CWA. See id. at

758–59, 768–78 (Kennedy, J., concurring in the judgment).

Justice Kennedy concluded that the Corps could reasonably

interpret the CWA to cover “impermanent streams,” id. at

770, and he concluded that the “Corps’ definition of

adjacency is a reasonable one,” id. at 775. Justice Kennedy

held that the Corps could exercise CWA jurisdiction over a

wetland only if there was “a significant nexus between the

wetlands in question and navigable waters in the traditional

sense.” Id. at 779; see also id. at 767. He explained,

“wetlands possess the requisite nexus, and come within the

statutory phrase ‘navigable waters,’ if the wetlands, either

alone or in combination with similarly situated lands in the

region, significantly affect the chemical, physical, and

biological integrity of other covered waters more readily

10 UNITED STATES V. ROBERTSON

understood as ‘navigable.’” Id. at 780. When “wetlands’

effects on water quality are speculative or insubstantial, they

fall outside the zone fairly encompassed by the statutory

term ‘navigable waters.’” Id.

Four members of the Court joined in a dissent authored

by Justice Stevens. His dissent concluded that Riverside

Bayview controlled the cases, that the Corps’ regulations

were a reasonable interpretation of the CWA, and that any

wetland that is adjacent to navigable waters or their

tributaries is subject to the CWA. See Rapanos, 547 U.S. at

787, 792 (Stevens, J., dissenting). He disagreed with both

the plurality and with Justice Kennedy. He noted that

“Justice Kennedy’s approach had far fewer faults,” and

concluded that both decisions “fail[ed] to give proper

deference to the agencies entrusted by Congress to

implement the Clean Water Act.” Id. at 810. The dissenting

Justices would have upheld the Corps’ jurisdiction in the

cases at issue in Rapanos “and in all other cases in which

either the plurality’s or Justice Kennedy’s test is satisfied.”

Id. at 810. Indeed, although the dissent “assume[d] that

Justice Kennedy’s approach will be controlling in most cases

because it treats more of the nation’s waters as within the

Corps’ jurisdiction,” the dissent would uphold jurisdiction

when either test was met—even “in the unlikely event that

the plurality’s test is met but Justice Kennedy’s is not.” Id.

at 810 n.14; see also id. at 810. The dissent also stated that

“in these and future cases the United States may elect to

prove jurisdiction under either test.” Id. at 810 n.14.

All this paints a rather complex picture, and one where

without more it might not be fair to expect a layman of

normal intelligence to discern what was the proper standard

to determine what are waters of the United States. But the

UNITED STATES V. ROBERTSON 11

substance of that picture was clarified by later decisional law

within the Ninth Circuit.

Specifically, in Northern California River Watch v. City

of Healdsburg, a precedent that is critical to our decision

today, we held that Justice Kennedy’s opinion was the

controlling opinion from Rapanos. 496 F.3d 993, 995

(2007). We explained that because it is “the narrowest

ground to which a majority of the Justices would assent if

forced to choose in almost all cases, . . . Justice Kennedy’s

concurrence provides the controlling rule of law for our

case.” Id. at 999–1000; see also United States v. Moses,

496 F.3d 984, 990 (9th Cir. 2007) (recognizing Justice

Kennedy’s “opinion as the controlling rule of law”); San

Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 707

(9th Cir. 2007) (“Justice Kennedy’s controlling concurrence

explained that only wetlands with a significant nexus to a

navigable-in-fact waterway are covered by the Act”

(emphasis added)). In reaching this conclusion, we relied

upon United States v. Gerke Excavating, Inc., 464 F.3d 723

(7th Cir. 2006). See City of Healdsburg, 496 F.3d at 999–

1000. In Gerke, the Seventh Circuit had explained that

Justice Kennedy’s test—which it also found to be

controlling—was “narrower (so far as reining in federal

authority is concerned) than the plurality’s in most cases.”

464 F.3d at 724–25. The Eleventh Circuit has also

concluded that Justice Kennedy’s test is controlling. See

United States v. Robison, 505 F.3d 1208, 1221 (11th Cir.

2007) (concluding that under the facts of Rapanos, Justice

Kennedy’s opinion is the narrowest and controlling).

Other circuits have adopted different approaches. The

First, Third, and Eighth Circuits have explicitly concluded

that the federal Government can establish CWA jurisdiction

if it can meet either the plurality’s or Justice Kennedy’s

12 UNITED STATES V. ROBERTSON

standard. United States v. Johnson, 467 F.3d 56, 64–66 (1st

Cir. 2006); United States v. Donovan, 661 F.3d 174, 176,

182 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791,

799 (8th Cir. 2009). The Fourth Circuit has used Justice

Kennedy’s test, without deciding whether the plurality’s test

could provide an alternate ground for establishing CWA

jurisdiction. See Precon Dev. Corp., Inc. v. U.S. Army Corps

of Eng’rs, 633 F.3d 288 (4th Cir. 2011). The Sixth Circuit

has expressly not yet decided which test is controlling. See

United States v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009).

It appears that the Fifth Circuit has also not yet decided

which test controls, see United States v. Lucas, 516 F.3d 316,

324–28 (5th Cir. 2008), although it has indicated—albeit in

an unpublished decision—that jurisdiction could be

established under either test, see United States v. Lipar,

665 F. App’x 322, 325 (5th Cir. 2016).

In view of these competing precedents interpreting

Rapanos, and further uncertainty engendered by our later en

banc decision in United States v. Davis, 825 F.3d 1014 (9th

Cir. 2016), Robertson argues that Justice Kennedy’s test

from Rapanos is not the controlling test for determining

CWA jurisdiction, and that the trial Court erred by basing

the jury instructions on Justice Kennedy’s test.

III

Robertson’s primary argument is that City of Healdsburg

is not binding in light of Davis. He asserts that under the

“reasoning-based” framework established by Davis, the

Rapanos plurality opinion is controlling. In reaching this

conclusion, Robertson argues that the court cannot consider

Justice Stevens’s dissent. He argues that if we do not adopt

the plurality decision as controlling, we must conclude that

“no single rationale commanded a majority of the Rapanos

court.”

UNITED STATES V. ROBERTSON 13

In Marks v. United States, the Supreme Court explained

that “[w]hen a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five

Justices, ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds.’” 430 U.S. 188, 193

(1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15

(1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

Recognizing the difficulty that courts have faced in

discerning what the Supreme Court meant by “narrowest

grounds,” we took Davis en banc to clarify the approach

courts should take in applying Marks to fractured Supreme

Court decisions. See Davis, 825 F.3d at 1021–22. We

adopted a “reasoning-based approach to applying Marks.”

Id. at 1021. As we explained,

[W]hen applying Marks to a fractured

Supreme Court decision, we look to those

opinions that concurred in the judgment and

determine whether one of those opinions sets

forth a rationale that is the logical subset of

other, broader opinions. When, however, no

“common denominator of the Court’s

reasoning” exists, we are bound only by the

“specific result.”

Id. at 1028. In Davis, we also assumed, without deciding,

that dissenting opinions may be considered as part of a

Marks analysis. Id. at 1025; see also id. at 1025 n.12.

As explained above, in City of Healdsburg—relying on

Gerke and taking into account the Rapanos dissent—we held

that Justice Kennedy’s “concurrence is the narrowest ground

to which a majority of the Justices would assent if forced to

choose in almost all cases.” City of Healdsburg, 496 F.3d at

14 UNITED STATES V. ROBERTSON

999. As Davis had not yet clarified the issue, we did not

engage in a reasoning-based Marks analysis to reach this

conclusion. Instead, we relied on and accepted the Seventh

Circuit’s explanation in Gerke as to why Justice Kennedy’s

concurrence provided the controlling rule. See id. at 999–

1000. Although the Seventh Circuit did not engage in an

explicit reasoning-based analysis, the underlying rationale in

Gerke is not inconsistent with that analysis.

To assess Robertson’s claim that the district court

applied the wrong standard to determine whether there was

insufficient evidence to conclude that Robertson discharged

pollutants into United States waters without a permit, we

must first decide whether the en banc decision in Davis

rendered inapplicable our prior conclusion in City of

Healdsburg that Justice Kennedy’s concurrence in Rapanos

would control our decision about what are waters of the

United States.

Our court in Miller v. Gammie, established the general

rule that a three-judge panel is not allowed to disregard a

prior circuit precedent, but rather must follow it unless or

until change comes from a higher authority. 335 F.3d 889,

893 (9th Cir. 2003) (en banc). Higher authority includes

decisions by en banc panels of our court. Overstreet v.

United Bhd. of Carpenters & Joiners of Am., Local Union

No. 1506, 409 F.3d 1199, 1205 n.8 (9th Cir. 2005).

This raises the issue whether the precedent of City of

Healdsburg should have been disregarded by the court

below in light of the later en banc decision in Davis. Miller

v. Gammie sets the rule that the district court below had to

follow City of Healdsburg unless it was “clearly

irreconcilable” with Davis. Miller v. Gammie, 335 F.3d at

893. So the controlling issue on whether City of Healdsburg

correctly stated the standard for what are waters of the

UNITED STATES V. ROBERTSON 15

United States, relying on Justice Kennedy’s concurrence in

Rapanos, is whether City of Healdsburg is clearly

irreconcilable with Davis. If so, we should disregard it. But

if not, City of Healdsburg remains controlling. It is to that

question that we now turn.

Some elaboration on the standard developed in Miller v.

Gammie is helpful here. In that case we considered when “a

three-judge panel is free to reexamine the holding of a prior

panel in light of an inconsistent decision by a court of last

resort on a closely related, but not identical issue.” 335 F.3d

at 899. The issue before us was whether, in light of

intervening Supreme Court authority outlining a functional

test for evaluating when immunity applied, a three-judge

panel should have disregarded prior Ninth Circuit authority

granting absolute immunity to social workers. Id. at 900.

Our en banc panel in Miller v. Gammie held that in cases of

“clear irreconcilability, a three-judge panel of this court and

district courts should consider themselves bound by the

intervening higher authority and reject the prior opinion of

this court as having been effectively overruled.” Id.

The “clearly irreconcilable” requirement is “a high

standard.” Rodriguez v. AT&T Mobility Servs. LLC,

728 F.3d 975, 979 (9th Cir. 2013) (internal quotation marks

omitted). So long as the court “can apply our prior circuit

precedent without running afoul of the intervening

authority” it must do so. Lair v. Bullock, 697 F.3d 1200,

1207 (9th Cir. 2012) (internal quotation marks omitted). “It

is not enough for there to be some tension between the

intervening higher authority and prior circuit precedent, or

for the intervening higher authority to cast doubt on the prior

circuit precedent.” Id. (internal quotation marks and

citations omitted).

16 UNITED STATES V. ROBERTSON

City of Healdsburg is not clearly irreconcilable with

Davis. Davis holds that an opinion that concurs in the

judgment that is “the logical subset of other, broader

opinions” is the “narrowest grounds” and controlling under

Marks. See Davis, 825 F.3d at 1024, 1028. Contrary to

Robertson’s argument, Davis did not forbid consideration of

dissents while engaging in the Marks analysis. See Davis,

825 F.3d at 1025. Consequently, so long as the opinion that

is a “logical subset” is an opinion that concurred in the

judgment, the “broader opinion” of which it is a subset can

be a dissent.

The overarching issue in Rapanos was whether the

breadth of the Corps’ regulations was permissible. The

narrowest holding was the one that restrained the Corps’

authority the least. See Rapanos, 547 U.S. at 810 n.14

(Stevens, J., dissenting) (“I assume that Justice Kennedy’s

approach will be controlling in most cases because it treats

more of the Nation’s waters as within the Corps’ jurisdiction

. . .”); Robison, 505 F.3d at 1221 (“The issue becomes

whether the definition of ‘navigable waters’ in the plurality

or concurring opinions in Rapanos was less far-reaching

(i.e., less-restrictive of CWA jurisdiction).”); Gerke,

464 F.3d at 724–25 (concluding Justice Kennedy’s “test is

narrower (so far as reining in federal authority is concerned)

than the plurality’s in most cases”). The opinion restricting

federal agency discretion the least was Justice Stevens’s

dissent, which would have provided for the broadest federal

jurisdiction of all, and which stated explicitly that it would

be satisfied and uphold the Corps’ jurisdiction whenever

either the plurality’s or Justice Kennedy’s test was met. See

Rapanos, 547 U.S. at 810 (Stevens, J., dissenting).

But under the standard announced in Marks, when we

interpret Rapanos we are to find our standard in the

UNITED STATES V. ROBERTSON 17

narrowest opinion joining in the judgment. So the dissent

that did not support the judgment is out for this purpose. We

have a contest then between the plurality opinion of Justice

Scalia and the concurring opinion of Justice Kennedy, both

of which supported the majority judgment. Both the

plurality and Justice Kennedy’s opinions can be viewed as

subsets of Justice Stevens’s dissent because both narrow the

scope of federal jurisdiction. Justice Kennedy’s

concurrence, however, is narrower than the plurality opinion

because it restricts federal authority less. See Rapanos,

547 U.S. at 810 n.14 (Stevens, J., dissenting).

Although it does not go through this subset analysis

explicitly, Gerke does recognize that Justice Kennedy’s

concurrence fits within the dissent, and that it narrows

federal authority less than the plurality’s decision. See

Gerke, 464 F.3d at 724–25 (explaining that “[t]he four

dissenting Justices took a much broader view of federal

authority” than either Justice Kennedy or the plurality, and

that Justice Kennedy’s grounds were narrower because the

plurality criticized Justice Kennedy’s expansive reading, and

Justice Kennedy rejected the two limitations the plurality

would have imposed on federal authority). Its reasoning—

how it gets to the “narrowest” opinion—is not completely

undercut by Davis. See Rodriguez, 728 F.3d at 980.

Gerke—and City of Healdsburg, which adopted and relied

upon Gerke’s reasoning—are not “clearly irreconcilable”

with Davis. City of Healdsburg remains valid and binding

precedent. Here, jurisdiction was determined to exist under

the “significant nexus” test set forth in Justice Kennedy’s

concurrence in Rapanos. We hold that there was no error in

this.

18 UNITED STATES V. ROBERTSON

IV

Robertson next argues that the statutory term “waters of

the United States” is “too vague to be enforced in the due

process sense,” because Robertson could not have had “fair

warning” of the meaning of that term. He asserts that he did

not have fair warning because, in light of Davis, City of

Healdsburg is no longer good law.

Robertson had fair warning that his conduct was

criminal. The Government violates the Fifth Amendment’s

guarantee of due process if it “take[s] away someone’s life,

liberty, or property under a criminal law so vague that it fails

to give ordinary people fair notice of the conduct it punishes,

or so standardless that it invites arbitrary enforcement.”

Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). The

underlying “principle is that no man shall be held criminally

responsible for conduct which he could not reasonably

understand to be proscribed.” United States v. Lanier,

520 U.S. 259, 265 (1997).

The “touchstone” of whether a statute is

unconstitutionally vague, on the one hand, or the defendant

instead had fair notice, on the other hand, “is whether the

statute, either standing alone or as construed, made it

reasonably clear at the relevant time that the defendant’s

conduct was criminal.” Id. at 267. So long as prior to the

defendant’s offense there were decisions which gave

“reasonable warning that the law [will] be applied in a

certain way,” the defendant had fair warning that his conduct

was criminal. See Gollehon v. Mahoney, 626 F.3d 1019,

1024 (9th Cir. 2010).

Robertson does not challenge the general validity of the

criminal provisions of the CWA. His argument relies

primarily on the effect of Davis on City of Healdsburg. As

UNITED STATES V. ROBERTSON 19

explained above, Davis does not undermine the continuing

validity of City of Healdsburg for purposes of jurisdiction.

As for the notice issue, the conduct at issue in this case took

place between October 2013 and October 2014, well after

this court had issued City of Healdsburg and had held that

Justice Kennedy’s test controlled CWA jurisdiction, and

well before this court’s decision in Davis. See Davis,

825 F.3d 1014 (published June 13, 2016); City of

Healdsburg, 496 F.3d at 995 (case published in 2007).

Robertson was on notice from City of Healdsburg at the time

of his excavation activities that wetlands and non-navigable

tributaries are subject to CWA jurisdiction “if the wetlands,

either alone or in combination with similarly situated lands

in the region, significantly affect the chemical, physical, and

biological integrity of other covered waters more readily

understood as ‘navigable.’” Rapanos, 547 U.S. at 780. The

jury was instructed in these terms, and convicted Robertson,

holding that the elements of his crime where shown beyond

a reasonable doubt. Davis—which was not decided until

2016, long after Robertson’s conduct forming the basis for

his convictions—does not affect whether Robertson had fair

notice at the time of his excavation activities. 2

V

Robertson next argues that the district court should have

granted his Federal Rule of Criminal Procedure 29(c) motion

to acquit after the jury deadlocked at his first trial. This

circuit has not explicitly addressed whether a defendant has

2

Also, Robertson was warned by an EPA agent that he likely needed

a permit to authorize his excavations. According to the agent, Robertson

was warned that “if he did not have a permit, then he very likely needed

a permit.”

20 UNITED STATES V. ROBERTSON

a viable sufficiency of the evidence challenge to his first

trial, when his second trial ended in conviction.

If Robertson had prevailed on his sufficiency challenge

at the first trial, any subsequent attempt to try him would

have been barred on double jeopardy grounds. But such a

claim is foreclosed because the Supreme Court in

Richardson v. United States held that even where the

Government has presented inadequate evidence at the first

trial and the jury deadlocks, if the trial judge rejects the

defendants’ insufficiency arguments, double jeopardy

protections do not bar a second trial. 468 U.S. 317, 326

(1984) (“Regardless of the sufficiency of the evidence at

petitioner’s first trial, he has no valid double jeopardy claim

to prevent his retrial.”).

Several other circuits have held that by necessary

extension Richardson also forecloses any challenge to the

sufficiency of evidence at a prior trial after a conviction at a

later trial. See United States v. Achobe, 560 F.3d 259, 265–

68 (5th Cir. 2008); United States v. Julien, 318 F.3d 316, 321

(1st Cir. 2003); United States v. Willis, 102 F.3d 1078, 1081

(10th Cir. 1996); United States v. Coleman, 862 F.2d 455,

460 (3d Cir. 1988). 3 We believe that these decisions are

correct, and we now join them.

3

In United States v. Recio, we held that Richardson did not bar us

from considering whether defendants “may be prosecuted at a third trial

if the Government presented insufficient evidence at the first.” 371 F.3d

1093, 1104 (9th Cir. 2004). We explained that “[t]he procedural posture

of this case allows us to consider this question because the third trial has

not yet begun.” Id. at 1104–05. We specifically declined to address the

question of whether defendants “could also use their first-trial

insufficiency argument to challenge their second trial on double jeopardy

grounds.” Id. at 1105 n.9.

UNITED STATES V. ROBERTSON 21

Richardson makes clear that the Double Jeopardy Clause

is not implicated simply because the Government presented

insufficient evidence at a previous trial, and absent double

jeopardy protections, a finding that insufficient evidence was

offered at the first trial would have no impact on the validity

of the second trial. We hold that a criminal defendant cannot

challenge the sufficiency of the evidence presented at a

previous trial following a conviction at a subsequent trial.

VI

Robertson argues that there are three reasons why the

district court erred in allowing Todd Tillinger, the Montana

State Program Manager for the Corps and Supervisory Civil

Engineer, to testify as an expert witness. First, Robertson

asserts that because the law on what constitutes a “water of

the United States” subject to CWA jurisdiction is unclear,

“the subject matter of [Tillinger’s] testimony was not

suitable for expert witness consideration.” Second,

Tillinger’s testimony was based on “guidance documents,”

which do not have the force of law. Finally, Robertson

argues that the district court should have rejected Tillinger

as an expert witness “because his jurisdictional

determination relied heavily on what is termed an ordinary

high water mark,” which Justice Kennedy rejected as the

determinative measure of whether a water is subject to the

CWA.

Robertson’s arguments are not persuasive. First, it is the

district court—not an expert witness—that instructs the jury

on what the law is. See U.S. v. Weitzsenhoff, 35 F.3d 1275,

1287 (9th Cir. 1993). Here, the court gave the jury clear

instructions on both the elements of a CWA violation, and

22 UNITED STATES V. ROBERTSON

the meaning of the term “waters of the United States.” 4 As

discussed above, the law itself is not unclear. 5

Robertson’s second argument is both belied by the

record and beside the point. The expert disclosure statement

that Robertson relies upon for his argument states that

Tillinger “has substantial training and experience in the

identification and classification of streams and wetlands to

determine if they are considered ‘waters of the United

States’ subject to federal regulation under the Clean Water

Act (‘CWA’); implementing regulations; standards set forth

in the United States Supreme Court’s opinion in Rapanos v.

United States, 547 U.S. 715 (2006); and the following

EPA/Army Corps of Engineers post-Rapanos guidance

4

Jury Instruction 14 provided: “In order for you to find the

defendant guilty of the crimes contained in Counts I or III, the

government must prove each of the following elements beyond a

reasonable doubt . . . 3. That the discharge was to a ‘water of the United

States.’” Jury Instruction 22 provided: “The term ‘waters of the United

States’ includes traditional navigable waters and tributaries and/or

adjacent wetlands that have a significant nexus to traditional navigable

waters. A tributary or adjacent wetland has a significant nexus to

traditional navigable waters if it (either alone or in combination with

similarly situated water bodies in the region) significantly affects the

chemical, physical, or biological integrity of traditional navigable

waters.” These instructions follow the standard set out in Justice

Kennedy’s concurrence, and that we adopted as controlling in City of

Healdsburg. See Rapanos, 547 U.S. at 780; City of Healdsburg,

496 F.3d at 999–1000.

5

Robertson does not assert that Tillinger improperly testified on the

ultimate issue of law. His argument appears to be that the law is unclear,

and it was improper for any expert to testify about “waters of the United

States.”

UNITED STATES V. ROBERTSON 23

documents . . . .” Tillinger based his evaluation on

regulations, Rapanos, and guidance documents.

It does not matter which sources of authority (binding

regulations or enforcement guidelines that lack the force of

law) Tillinger used in evaluating waters and wetlands

because it is the jury, using the instructions provided by the

judge, that ultimately determines whether the creek and

wetland at issue were “waters of the United States.” See

United States v. Phillips, 367 F.3d 846, 855 n.25 (9th Cir.

2004) (explaining that “whether the water is navigable [i.e.,

is subject to CWA jurisdiction] is part of one element of a

CWA violation,” which the Government can be required to

prove at trial).

Robertson’s third argument is also unpersuasive. At the

first trial, Tillinger testified that in determining whether the

channel had a continuous or relatively permanent flow he

looked for a high water mark. 6 Although Justice Kennedy

stated in Rapanos that the presence of an ordinary high water

mark on a tributary could not be “the determinative

measure” of whether a wetland adjacent to that tributary is

covered by the CWA, he did not forbid the consideration of

an ordinary high water mark. See Rapanos, 547 U.S. at 781.

That Tillinger discussed using a high water mark in his

evaluation of whether the channel next to the wetland was a

tributary does not render his testimony improper.

Regardless, it was the jury (not Tillinger) that—using the

court’s instructions that did not mention the ordinary high

6

Robertson does not provide a citation for his assertion that

Tillinger’s jurisdictional determination relied on the ordinary high water

mark. The Government cites to Tillinger’s testimony from the first trial.

The parties do not direct us to any specific testimony from the second

trial where Tillinger allegedly relies on the ordinary high water mark.

24 UNITED STATES V. ROBERTSON

water mark—made the final determination that the creek and

wetlands at issue were “waters of the United States.” We

reject Robertson’s challenges to Tillinger’s testimony

because there was no abuse of discretion in allowing it.

VII

Robertson next argues that the district court erred in

excluding two documents: the U.S. Army Corps of

Engineers Jurisdictional Determination Form Instruction

Guidebook and the Crystal Mine Study. He asserts that the

district court should have admitted the Manual because it

would have permitted Robertson to show that the Corps

“was making its jurisdictional determination on a factor

expressly forbidden by Justice Kennedy under his

substantial nexus test.” He argues that the district court

should have admitted the Crystal Mine Study because it

showed “that the water quality of the Cataract drainage is

very poor due to the extensive mining activity,” and the

Study “could have supported his argument of insubstantial

connection between the wetlands and the Jefferson river.”

The district court did not abuse its discretion in

excluding either the Guidance Manual or the Crystal Mine

Study. The district court is given “wide latitude” to

determine “the admissibility of evidence because [the trial

judge] is in the best position to assess the impact and effect

of evidence based upon what [the judge] perceives from the

live proceedings of a trial.” Layton, 767 F.2d at 554 (quoting

United States v. Ford, 632 F.2d 1354, 1377 (9th Cir. 1980)).

The district court explained that the Guidebook is used

by the Corps “in its performance of jurisdictional

determinations and, as such, discusses the applicable

regulations and the law.” The court excluded the Guidebook

under Federal Rule of Evidence 403, concluding that “the

UNITED STATES V. ROBERTSON 25

danger of confusing the issues and misleading the jury

substantially outweighed the potential probative value of

admitting the entire Guidebook.” As the district court

properly explained, the court provides the law to the jury.

See, e.g., Weitzsenhoff, 35 F.3d at 1287. The Guidance

Manual explains how and when the Corps will assert CWA

jurisdiction over wetlands and non-navigable tributaries. It

was within the district court’s discretion to conclude that the

Guidance Manual could confuse the jury because the

standards and considerations outlined in the Manual were

not the same as the jury instructions, i.e., the law that the jury

had to follow. 7 The district court did not abuse its discretion

in excluding the Guidance Manual.

The district court likewise did not abuse its discretion in

excluding the Crystal Mine Study. The district court

concluded that the Study was not relevant and that “the

potential prejudice from its introduction strongly outweighs

any probative value.” It excluded the Study under Federal

Rules of Evidence 401 and 403. The district court acted well

within its discretion. Whether a wetland or non-navigable

water has a significant nexus to a traditionally navigable

water has nothing to do with whether the traditionally

navigable water is healthy. Robertson does not support his

novel argument that a “significant nexus” exists only when

a wetland would be polluting an otherwise clean water, with

any authority. Also, this argument undermines the very

purpose of the CWA, “to restore and maintain the chemical,

7

As explained above, Robertson’s arguments regarding references

to the Ordinary High Water Mark and how the Corps’ determines CWA

jurisdiction are unpersuasive. The district court provided jury

instructions, and the jury (following those instructions) made the

determination that the discharge was into “waters of the United States.”

How the Corps makes CWA jurisdictional determinations is not

controlling for the purposes of this criminal appeal.

26 UNITED STATES V. ROBERTSON

physical, and biological integrity of the Nation’s waters.”

See 33 U.S.C. § 1251(a) (emphasis added). In light of this

purpose, it would not make sense to conclude that the CWA

protects only clean waters from pollution from their non-

navigable tributaries, because that would disregard the

CWA’s restoration purpose. The district court did not abuse

its discretion by excluding the Crystal Mine Study, which

addressed the existing contamination in the watershed. 8 We

reject Robertson’s challenges to the district court’s rulings

on the rules of evidence. There was no abuse of discretion. 9

AFFIRMED.

8

Robertson properly states that the standard of review for decisions

on the admissibility of evidence is abuse of discretion. However, he also

seems to suggest that the court should review the decisions to determine

whether exclusion of the evidence resulted in constitutional error.

Robertson does not present any substantial argument as to how exclusion

of either the Guidance Manual or the Crystal Mine Study resulted in

constitutional error. Nor could he do so. As explained above, exclusion

of both pieces of evidence was proper. Not only that, but the district

court allowed Robertson to question witnesses using the Guidance

Manual and allowed Robertson to have the witness read relevant portions

of the Manual into the record.

9

Robertson argues that if we reverse on Counts I and III, those

counts will no longer be “offenses of conviction,” and “the district

court’s restitution order should be vacated and the issue should be

remanded for reconsideration.” Robertson does not otherwise challenge

the district court’s restitution order. Because we affirm the convictions,

we also affirm the restitution award.