FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30442
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-00002-
CORY LEDEAL KING, BLW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
November 3, 2010—Portland, Oregon
Filed October 3, 2011
Before: Ruggero J. Aldisert,* William A. Fletcher and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge William A. Fletcher
*Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States
Court of Appeals for the Third Circuit, sitting by designation.
18637
18640 UNITED STATES v. KING
COUNSEL
Syrena Case Hargrove, OFFICE OF THE UNITED STATES
ATTORNEY, Boise, Idaho, Robert Parke Stockman,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for the appellee.
UNITED STATES v. KING 18641
David R. Lombardi, GIVENS PURSLEY LLP, Boise, Idaho,
Kathleen M. Sullivan, QUINN EMANUEL URQUHART &
SULLIVAN LLP, New York, New York, Paul L. Westberg,
WESTBERG, McCABE & COLLINS, Boise, Idaho, for the
appellant.
Daniel J. Popeo, Richard A. Samp, Michael Rybak, Washing-
ton Legal Foundation, Washington, D.C., Amicus.
OPINION
W. FLETCHER, Circuit Judge:
Defendant-Appellant Cory King was convicted after a
three-day jury trial of four counts of injecting fluids into deep
wells without a permit, in violation of the Safe Drinking
Water Act, 42 U.S.C. § 300h-2(b)(2). He was also convicted
of one count of making a “materially false” statement in a
“matter within the jurisdiction” of the United States, in viola-
tion of 18 U.S.C. § 1001(a)(2). King timely appealed. We
affirm.
I. Background
At all times relevant to this appeal, King was the manager
of a large farming and cattle operation in southern Idaho,
Double C Farms Partnership (“Double C”). Double C’s facili-
ties include about 11,500 acres of cropland irrigated by a sys-
tem of wells and pivots (a type of agricultural sprinkler), and
a segregated 25-acre cattle feedlot containing between 15,000
and 20,000 head of cattle.
In January 1987, King applied to the Idaho Department of
Water Resources for a permit to inject “winter runoff from
Willow Creek,” a creek that passes through the Double C
facilities, into a 500-foot well between November and April.
18642 UNITED STATES v. KING
The purpose was “to inject this water in winter so that it can
be pumped out in summer.” The application stated that
because the injected water would be used to irrigate crops, it
“must be clean.” The State denied the application in Novem-
ber 2000.
On May 23, 2005, John Klimes, an investigator employed
by the Idaho Department of Agriculture, drove onto Double
C property to conduct a “routine waste inspection” of the
feedlot operation. Klimes had an 11:00 a.m. appointment with
feedlot manager Curtis Taylor. As Klimes drove toward the
feedlot for the appointment, he noticed that the north side of
the “main waste pond” for the feedlot had washed out and that
waste was running from the pond into a ditch. He also noticed
that a pipe on the west side of the pond “had been uncapped”
and that waste from the pipe was running into the same ditch.
When Klimes arrived at the feedlot, Taylor was not there.
Klimes called him on his cell phone, and they arranged to
meet at about 2:00 p.m. that afternoon.
As Klimes was driving away from the feedlot, he was
stopped by a man in a pickup truck coming the opposite direc-
tion. The driver identified himself as “one of the main irriga-
tors on the Double C facility,” but declined to give his name.
The employee was later identified as Shaun Carson. Klimes
identified himself as an inspector from the Department of
Agriculture. Carson told Klimes that the water in the ditch
came from a waste containment pond that had ruptured. He
also told Klimes that anti-backflow valves at two wells on the
property had been reversed so that the “dirty water” could be
injected into the wells. Carson urged Klimes to investigate
quickly because the valves would be installed properly by the
end of the day.
Klimes investigated the valves at Wells One and Four on
the Double C property. Just as Carson had said, the backflow
valves at each well were installed in the wrong direction,
allowing water to flow into the wells. Klimes saw no irriga-
UNITED STATES v. KING 18643
tion pivots operating in the vicinity of either well. If pivots
had been operating, that would have indicated that water was
coming out of, rather than going into, the wells. Klimes also
heard water “cascading” into Well One. When Klimes
returned to the wells later in the day, the valves were properly
installed, as Carson had said they would be.
On June 2, Klimes returned to Double C for a scheduled
meeting with King. He was accompanied by his supervisor,
John Chatburn, as well as other Idaho Department of Agricul-
ture employees. At the meeting, Chatburn confronted King
with the allegation that he had been injecting wastewater into
his wells. King denied the allegation. When Chatburn asked
King if they could take samples from his wells, King
responded that the wells had not yet been turned on. This con-
tradicted what Klimes had observed on his first visit to Dou-
ble C.
Later that day, Klimes and Chatburn went to Well Five
unaccompanied by King. They noticed an uncovered valve
that was ordinarily covered with dirt. They heard water “run-
ning back down the well.” The ground around the well was
vibrating slightly, and the vent pipe at the back of the well
was blowing air. Later that day, as Klimes was driving around
the Double C facilities, he noticed King and Jose Guerrero
near Well Five from about half a mile away. Klimes
approached them and asked King and Guerrero to accompany
him to the well. When they arrived at Well Five, Klimes saw
that the valve had been re-covered. Klimes asked King what
the valve did. King told Klimes that the valve led to a nearby
irrigation pivot. It was established at trial that King’s state-
ment to Klimes was false. The valve, in fact, led to the well.
In February 2008, the government filed a First Superseding
Indictment charging King with four counts of violating the
Safe Drinking Water Act (“SDWA”). Each count alleged that
King “willfully injected water” into a well “which is more
than eighteen feet in vertical depth below land surface, with-
18644 UNITED STATES v. KING
out a permit issued by the State of Idaho, despite having
knowledge of the requirement to first obtain such a permit[.]”
None of the four counts charged that the injected water was
contaminated. The indictment also charged King with one
count of violating 18 U.S.C. § 1001(a)(2) by “knowingly and
willfully” making a “materially false” statement in a “matter
within the jurisdiction” of the United States when he told
Klimes that “the valve and pipe. . . at . . . Well No. 5 [were]
feeding an irrigation pivot.”
The jury returned a guilty verdict on all five counts. King
appeals on several grounds. With respect to the four counts
under the SDWA, King makes two statutory arguments. First,
he contends that the government was required to allege and
prove that the injected water had an adverse effect on an
underground source of drinking water. Second, he contends
that Idaho’s permitting requirement for injection wells is not
part of Idaho’s “applicable underground injection program,”
so that his failure to obtain a permit did not violate the
SDWA. He also makes a constitutional argument. He con-
tends that if his unpermitted injections are held to violate the
SDWA, the Act exceeds Congress’ authority under the Com-
merce Clause. With respect to the fifth count under 18 U.S.C.
§ 1001(a)(2), King contends that his “materially false” state-
ment was not made in a “matter within the jurisdiction” of the
United States because it was made to a state agricultural
inspector. Finally, King challenges the district court’s denial
of his post-verdict motion for a new trial because of violations
of a pre-trial order and alleged prosecutorial misconduct.
We discuss King’s arguments in turn.
II. Standard of Review
We review de novo the sufficiency of an indictment. United
States v. Oren, 893 F.2d 1057, 1063 (9th Cir. 1990). We
review the district court’s construction of the SDWA de novo.
See United States v. Cabaccang, 332 F.3d 622, 624-5 (9th
UNITED STATES v. KING 18645
Cir. 2003) (en banc). We review the district court’s construc-
tion of 18 U.S.C. § 1001 de novo. Oren, 893 F.2d at 1064. We
review Congress’ authority under the Commerce Clause de
novo. United States v. Dorsey, 418 F.3d 1038, 1045 (9th Cir.
2005). Finally, we review a district court’s denial of a motion
for a new trial for abuse of discretion. United States v. Mack,
362 F.3d 597, 600 (9th Cir. 2004); United States v. Allen, 341
F.3d 870, 891 (9th Cir. 2003).
III. Counts One Through Four: Safe Drinking Water Act
[1] Under Counts One through Four, King was convicted
under 42 U.S.C. § 300h-2(b)(2), which criminalizes “willful”
violations of an “applicable underground injection program.”
“Underground Injection Control Programs” are state-
administered programs under the federal Safe Drinking Water
Act that prevent harmful injections into drinking water aqui-
fers. The counts were based on four discharges of water into
deep wells without a permit from the State of Idaho.
A. Statutory Arguments
1. Proof of Connection to an Underground Source of
Drinking Water
King contends that the government failed to allege and
prove violations of § 300h-2(b)(2). King concedes that the
government alleged and proved that he willfully injected
water into wells despite not having a permit from the State of
Idaho under its Underground Injection Control (“UIC”) pro-
gram. But King contends that in order to establish a violation
of an “applicable underground injection program” under
§ 300h-2(b), the government must also allege and prove that
his injection of water “implicated” or “pertain[ed] to” an
underground source of drinking water (“USDW”).
[2] King misunderstands the allocation of the burden of
proof under the SDWA. King had the burden to show, during
18646 UNITED STATES v. KING
Idaho’s permitting process, that his proposed injection would
not adversely affect an USDW. To prove a violation of
§ 300h-2(b)(2), the government does not need to show that an
injection will have such an effect on an USDW. The govern-
ment need only show the absence of a permit under Idaho’s
UIC program.
The SDWA establishes a federally mandated, state-
administered regulatory scheme for the protection of drinking
water. It provides that an applicant for a permit to inject fluids
has the burden of showing that the injection will not endanger
underground sources of drinking water: “[T]he applicant for
the permit to inject must satisfy the State that the underground
injection will not endanger drinking water sources.” 42 U.S.C.
§ 300h(b)(1)(B)(i). “Underground injection endangers drink-
ing water sources if such injection may result in the presence
in underground water which supplies or reasonably can be
expected to supply any public water system of any contami-
nant . . . .” Id. at § 300h(d)(2).
The SDWA’s implementing regulations specify that “[t]he
applicant for a permit shall have the burden of showing” that
the applicant’s “injection activity” will not “allow[ ] the
movement of fluid containing any contaminant into under-
ground sources of drinking water.” 40 C.F.R. § 144.12(a).
“Any underground injection, except . . . as authorized by per-
mit issued under the UIC program, is prohibited.” Id. at
§ 144.11. “[N]o injection shall be authorized by permit . . . if
it results in the movement of fluid containing any contaminant
into [an USDW] if the presence of that contaminant may
cause a violation of any primary drinking water violation
. . . .” Id. at § 144.1(g)
[3] The SDWA and its implementing regulations are not
concerned with whether an injected fluid is itself contami-
nated. Rather, they are concerned with the result of “injection
activity.” A permit applicant must show that the proposed
activity will not allow “the movement of fluid containing [a]
UNITED STATES v. KING 18647
contaminant.” Id. Injections of clean water into the ground
can cause the movement of contaminants into an aquifer. For
example, contaminants may dissolve into clean water as the
injected water passes through the soil on its way to an aquifer.
Or, if water is injected under pressure it may cause fractures
in subsurface structures, thereby releasing contaminants into
the aquifer. See Subsurface Emplacement of Fluids, 39 Fed.
Reg. 12922, 12922-23 (April 2, 1974). Therefore, a permit
applicant must show, even as to a proposed injection of clean
water, that the injection will not allow “the movement of fluid
containing [a] contaminant.” Id.
Idaho administers and is the primary enforcer of the SDWA
under an UIC program approved by the federal Environmental
Protection Agency (“EPA”). See 40 C.F.R. § 147.650. Under
Idaho’s UIC program, injections of fluids into deep wells
require a permit. Idaho defines a “drinking water source” as
an “aquifer which contains water having less than the 10,000
mg/l total dissolved solids,” and has not otherwise been
exempted by the State’s director of the department of water
resources. Idaho Code § 42-3902(3); Idaho Admin. Code
§ 37.03.03, Rule 10.17 (same); see 40 C.F.R. § 144.3 (includ-
ing this definition). A “waste disposal and injection well” is
“an injection well which is more than eighteen (18) feet in
vertical depth below land surface.” Idaho Code § 42-
3902(19). No existing “waste disposal and injection well” can
be used “unless a permit therefor has been issued” by the state
director of the department of water resources.” Id. § 42-3903.
The director may issue a permit only if non-contamination
conditions for the permit have been “met” by the applicant,
including whether “drinking water sources” will be “unrea-
sonably affected.” Idaho Admin. Code, § 37.03.03, Rule
45.02; see also Id. at Rule 50.
[4] We therefore conclude that the government was not
required to prove, as an element of the crime of violating
§ 300h-2(b)(2), that King’s injection of water would have an
adverse impact on an USDW. The government was required
18648 UNITED STATES v. KING
to prove only that King “willfull[y]” failed to comply with a
“requirement of an applicable underground injection pro-
gram.” Accordingly, the government was required to prove
only that King willfully injected water into a well more than
eighteen feet deep without a permit, knowing that a permit
was required under Idaho law.
2. Idaho’s Permit Requirement as a Part of the SDWA
[5] King further contends that he cannot be convicted
under federal law for violating Idaho’s permitting system
because it is not part of “an applicable underground injection
program” within the meaning of § 300h-2(b)(2). In King’s
view, the Idaho UIC program has a greater scope than the
SDWA. He points to 40 C.F.R. § 145.1(g)(2), which provides,
“Where an approved State program has a greater scope of
coverage than required by Federal law the additional coverage
is not part of the federally approved program.” King contends
that the requirements for obtaining a permit under Idaho law
encompass more than just the absence of adverse effects on
an USDW, and that the Idaho permitting program is therefore
not entirely within the scope of the SDWA. We disagree.
[6] When the federal government approved Idaho’s UIC
program, it specifically incorporated Idaho’s entire permitting
process into the SDWA:
Incorporation by reference. The requirements set
forth in the State statutes and regulations cited in this
paragraph are hereby incorporated by reference and
made a part of the applicable UIC program under the
SDWA for the State of Idaho. . . .
...
(7) Waste Disposal and Injection Wells, Title 42,
Chapter 39, Idaho Code, sections 42-3901 through
UNITED STATES v. KING 18649
42-3914 (Bobbs-Merrill 1977), sections 42-3915
through 42-3919 (Supp. 1984).
40 C.F.R. § 147.650(a). The reference in § 147.650(a)(7) to
specific provisions of Idaho law, including those applicable to
permitting, make clear that the entire Idaho permitting process
was approved and incorporated into the SDWA.
B. Commerce Clause
King contends that if the SDWA is construed to allow a
criminal conviction in his case, Congress has exceeded its
authority under the Commerce Clause. We disagree.
[7] Congress passed the SDWA in 1974 in response to its
concern that underground sources of drinking water were
threatened by unregulated underground injections. H.R. Rep.
No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454-
6506. The House Report noted that recently enacted environ-
mental laws, such as the Clean Air Act and the Clean Water
Act, had increased the cost of atmospheric and surface waste
methods of disposal, such as burning and dumping. Id. at
6459. The gap left by these laws resulted in the increased use
of underground injections to dispose of waste. Id. The Report
also found that existing federal and state laws regulating
sources of drinking water were inadequate to ensure the safety
of drinking water. Id. at 6456-60. The Report cited a 1968
study that found that 79% of water systems were not
inspected by county or state authorities. Id. at 6458. The
Report also cited an EPA study that found that 19% of water
systems did not meet the bacteriological limits of then-current
drinking water standards. Id. The Report further cited a 1973
Government Accountability Office study that found that of
446 water systems studied, only 60 were in compliance with
then-current federal bacteriological and sampling require-
ments. Id. at 6458-59. Between 1961 and 1970, there were
130 outbreaks of disease or poisoning attributable to drinking
18650 UNITED STATES v. KING
water sources, causing over 46,000 illnesses and 20 deaths.
Id. at 6457.
The House Report recognized that an effective regulatory
scheme protecting drinking water would need to be national
in scope:
In general, water in the hydrologic cycle does not
respect State borders. The Nation also has an impor-
tant fiscal interest in minimizing drinking water
related disease, since such disease may well contrib-
ute significantly to the drain on the Federal health
care financing system — Medicare, Medicaid, etc.
— unless the quality of the Nation’s drinking water
supplies is protected.
Id. at 6461. Congress ultimately concluded that a cooperative
federal-state program would be an appropriate means of
ensuring drinking water safety.
The SDWA has two parts. The first part, known as the
National Primary Drinking Water Regulations, 42 U.S.C.
§ 300g, sets national minimum standards for drinking water
quality. That part is not at issue in this appeal. The second
part, 42 U.S.C. § 300h, regulates underground injections that
might adversely affect current and potential underground
sources of drinking water. King was prosecuted under the sec-
ond part.
Under the second part of the SDWA, a state may apply to
administer an UIC program in lieu of being subject to federal
regulations. 42 U.S.C. § 300h-1; 40 C.F.R. §§ 145 et seq. If
its program is approved, a state may regulate underground
injections through one of two means: rulemaking or permit-
ting. 42 U.S.C. § 300h(b)(1)(A). If a state opts to regulate
underground injections through permitting, the SDWA
requires the state to “prohibit . . . any underground injection
. . . which is not authorized by a permit issued by the State[.]”
UNITED STATES v. KING 18651
Id. (emphasis added). See also 40 C.F.R. § 144.1(g) (“The
UIC Permit Program regulates underground injections by six
classes of wells . . . . All owners or operators of these injec-
tion wells must be authorized either by permit or rule by the
Director.”); Id. at § 144.11 (“[a]ny underground injection,
except into a well authorized by rule or except as authorized
by permit issued under the UIC program, is prohibited”).
The injection provisions of the SDWA are “preventive.”
1974 U.S.C.C.A.N. at 6463. Congress concluded that the
most effective way to ensure clean drinking water was to pre-
vent pollution of underground aquifers in the first place,
rather than to clean up polluted aquifers after the fact. Under
the SDWA, the danger posed by proposed injections to an
underground aquifer is determined during the permitting pro-
cess. As noted above, the SDWA puts the burden on a permit
applicant to show that a proposed injection will not endanger
an USDW. If an applicant fails to show that a proposed injec-
tion is safe, the SDWA requires that the permit be denied.
That is, in the absence of a showing by the applicant that a
proposed injection is safe, the SDWA presumes that the injec-
tion will endanger an USDW.
The constitutional question before us is whether this federal
regulatory scheme exceeds Congress’ power under the Com-
merce Clause.
[8] Congress may regulate the channels of interstate com-
merce; may regulate and protect the instrumentalities of inter-
state commerce, or persons or things in interstate commerce;
and may regulate activities that have a substantial relation to
interstate commerce, including intrastate activities that have a
substantial effect on interstate commerce. United States v.
Lopez, 514 U.S. 549, 558-59 (1995). There can be little ques-
tion that the SDWA, including its permitting process under a
state UIC program, regulates activities that have a substantial
relation to interstate commerce.
18652 UNITED STATES v. KING
[9] Drinking water is an economic commodity. See Spor-
hase v. Nebraska, ex rel. Dreyfus, 458 U.S. 941, 954 (1982)
(holding water is an article in interstate commerce). Most
urban residents pay for drinking water that comes from their
taps. Many rural residents pay for the construction and/or
operation of wells to obtain water from underground aquifers.
For reasons of necessity, taste or fashion, some people do not
drink tap or well water. Instead, they pay for bottled water,
which is often transported across state lines. Any regulatory
scheme that affects the safety of a source, including an under-
ground source, of drinking water inescapably has an effect on
the supply of drinking water, and therefore on interstate com-
merce.
[10] The House Report on the SDWA demonstrates that
unregulated injections “exert[ ] a substantial economic effect”
on this commodity. Wickard v. Filburn, 317 U.S. 111, 125
(1942) (consumption of home-grown wheat does not violate
Commerce Clause, because home consumption impacts prices
in interstate wheat market by reducing demand for commer-
cial wheat); see also Gonzales v. Raich, 545 U.S. 1 (2005)
(rejecting Commerce Clause challenge to criminalization of
home-grown and home-consumed medical marijuana under
Controlled Substances Act). Underground fluid injection can
have disastrous consequences for drinking water and, in turn,
for human health. Injected fluid is hard to trace once it enters
the ground, and polluted aquifers are hard to remediate. Con-
gress’ cautious “preventive” approach requires permit appli-
cants to show that their injections will not harm underground
sources of drinking water. It presumes, until an applicant
shows otherwise, that injections will contaminate an USDW.
Although this approach may result in forbidding some injec-
tions that would not contaminate an USDW, it is a valid exer-
cise of Congress’ authority. “When it is necessary in order to
prevent an evil to make the law embrace more than the pre-
cise thing to be prevented it may do so.” Perez v. United
States, 402 U.S. 146, 154 (1971) (quoting Westfall v. United
States, 274 U.S. 256, 259 (1927) (Holmes, J.)).
UNITED STATES v. KING 18653
In United States v. Lopez, supra, the Supreme Court con-
sidered the constitutionality of the Gun-Free School Zones
Act. The Act made it a federal offense “for any individual
knowingly to possess a firearm at a place that the individual
knows, or has reasonable cause to believe, is a school zone.”
Id. at 551. The Act neither regulated commercial activity nor
contained a requirement that possession be connected to inter-
state commerce. Id. The Supreme Court held that the Act was
beyond Congress’ authority, writing that the Act’s criminal-
ization of gun possession near a school zone “ha[d] nothing
to do with ‘commerce’ or any sort of economic enterprise,
however broadly one might define those terms.” Id. at 561.
[11] The SDWA is fundamentally different from the Gun-
Free School Zones Act. Drinking water is an article of com-
merce. The protection of drinking water — and its converse,
the pollution of drinking water — have a direct effect on com-
merce. We recognize that in some instances the effect of
Idaho’s UIC permitting program may be to prevent injection
of fluids that would not contaminate an USDW. But the fed-
eral government has the authority under the Commerce
Clause to regulate injections broadly, out of an abundance of
caution, as a means of providing effective protection of the
purity of the nation’s drinking water.
[12] We therefore conclude that § 300h-2(b)(2) does not
exceed Congress’ authority under the Commerce Clause.
IV. Count Five: A “Materially False” Statement in a
“Matter Within the Jurisdiction” of the United States
King was convicted under Count Five of making a “materi-
ally false . . . statement” in a “matter within the jurisdiction
of the executive, legislative, or judicial branch of the Govern-
ment of the United States,” in violation of 18 U.S.C.
§ 1001(a)(2).
King does not contest that he made a “materially false”
statement to John Klimes when he said that the buried valve
18654 UNITED STATES v. KING
at Well Five led to an irrigation pivot. In actual fact, the valve
led to Well Five and allowed water to flow into the well.
However, King contends that his conviction under
§ 1001(a)(2) must be set aside because Klimes is an Idaho
agricultural inspector. King contends that his statement to
Klimes was therefore not in a “matter within the jurisdiction
. . . of the United States.” We disagree.
[13] A false statement need not be made to a federal agent
to support a conviction under § 1001(a)(2). See United States
v. Yermian, 468 U.S. 63, 65 (1984); United States v. Facchini,
874 F.2d 638, 640-41 (9th Cir. 1989) (en banc). “Jurisdiction”
is not defined in the statute, but “the most natural, nontechni-
cal reading of the statutory language is that it covers all mat-
ters confided to the authority of an agency or department.”
United States v. Rodgers, 466 U.S. 475, 479 (1984). “Jurisdic-
tion” is construed broadly to protect “the integrity of official
inquiries.” Bryson v. United States, 396 U.S. 64, 70 (1969).
The statute is intended to cover “those deceptive practices
which might result in the frustration of authorized government
functions.” United States v. Green, 745 F.2d 1205, 1210 (9th
Cir. 1985). Section 1001(a)(2) jurisdiction extends wherever
the federal government “has the power to exercise authority.”
Rodgers, 466 U.S. at 479. Jurisdiction requires a “direct rela-
tionship” between the authorized functions of an agency and
the false statement. Facchini, 874 F.2d at 641.
We agree with King that § 1001(a)(2) cannot be read so
broadly as to incorporate any false statement made to anyone
regarding matters pertinent to the federal government. But
this case does not exceed the outer boundaries of the statute.
The most analogous case is United States v. Oren, 893 F.2d
1057 (9th Cir. 1990). In that case, we upheld a § 1001(a)(2)
conviction against a defendant who forged an offer letter to
the Trust for Public Lands in a scheme to induce the trust to
purchase several hundred acres of undeveloped land at an
inflated cost that would eventually be repurchased by the
National Park Service. We held that the statement to the Trust
UNITED STATES v. KING 18655
was within the jurisdiction of the federal government for pur-
poses of § 1001, even though the Trust was a private entity,
and even though the letter was never transmitted to the Park
Service by the defendant. We upheld the conviction because
the Park Service could have been led to purchase the land
based on the false statement. Id. at 1064-65.
[14] In this case, there is a closer connection between the
false statement and the federal government than there was in
Oren. King knew that the Idaho Department of Agriculture
had the authority to examine his wells and injection proce-
dures. He also knew that the Department was trying to deter-
mine whether he was injecting water into deep wells without
a permit. King lied to Klimes, one of the investigators, in
order to defeat the investigation. A willful injection of fluid
into a deep well without a permit from the State of Idaho is
a federal crime under the SDWA. Therefore, King made a
false statement in a “matter within the jurisdiction” of the
United States.
V. Motion for a New Trial
King moved for a new trial after the return of the jury’s
verdict. He asserted two grounds. First, he contended that on
four occasions during trial prejudicial references were made
to “waste” in violation of a pretrial order. Second, he con-
tended that the government “manipulated” the testimony of
John Chatburn “in order to leave jurors with the false impres-
sion that Mr. King had lied.” The district court denied the
motion. We discuss King’s arguments in turn.
A. References to “Waste”
The government originally indicted King for willfully
injecting liquid waste without a permit. However, a supersed-
ing indictment alleged only that King willfully injected
“water” without a permit. The district court entered a pretrial
order precluding any references, in evidence presented to the
18656 UNITED STATES v. KING
jury, to “wastewater, manure, or waste material,” on the
ground that such references could be prejudicial to King.
Despite the pretrial order, three government witnesses
briefly referred to “waste” in their testimony. In addition, the
government displayed a diagram on a screen for a few sec-
onds on which the source of the water was labeled “waste
pond.” The district court found that the three references and
the brief display were inadvertent.
[15] After the first reference to “waste,” the court gave a
limiting instruction. King did not request limiting instructions
after the other references or after the display. In its final
instructions to the jury, the district court instructed the jury
not to consider evidence that it had been instructed to ignore.
A joint stipulation by the parties, presented to the jury, stated
that the injections consisted of surface water from creeks. The
district court held that its limiting instruction and the stipula-
tion cured any possible prejudice that might have been caused
by the three references and brief display. The district court did
not abuse its discretion in so holding.
B. Chatburn’s Testimony
During a pretrial suppression hearing, Chatburn testified
that on two occasions King denied injecting “waste water”
into wells at Double C. The district court’s order forbade any
reference to “waste” in testimony before the jury. Chatburn
testified at trial that on the first occasion he spoke to King
about allegations that “fluids” were being injected. He testi-
fied that on the second occasion King denied “what had been
alleged.”
King contended in his motion for a new trial, and contends
here, that the government unfairly “manipulated” Chatburn’s
testimony. He points out that Chatburn testified at trial that
King denied injecting fluids, but that King had denied only
injecting “waste water,” leaving open the possibility that he
UNITED STATES v. KING 18657
had not denied injecting clean water. Therefore, according to
King, Chatburn’s testimony gave a “false impression” to the
jury.
King’s argument is too clever by half. It was King who
insisted on the protective order that prevented Chatburn from
testifying to what King had actually said. King is now seeking
to take unfair advantage of the order by characterizing the
good-faith replacement of “waste water” with “fluid” in Chat-
burn’s testimony as “manipulation.”
[16] Further, we note that King was not charged in the
indictment with lying to Chatburn. Rather, he was charged
with lying to Klimes. The purpose of Chatburn’s testimony
was to show that King injected fluids “willfully.” Chatburn’s
testimony was only a small part of the evidence presented to
the jury that King acted “willfully.” If there was any error in
presenting Chatburn’s testimony (which we hold there was
not), it was clearly harmless.
Conclusion
The district court in this case was thorough in its legal anal-
ysis and meticulous in its protection of King’s rights at trial.
We AFFIRM the conviction.