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.