United States v. Joseph Robertson
875 F.3d 1281
| 9th Cir. | 2017Background
- Between Oct 2013 and Oct 2014 Robertson excavated and built ponds on National Forest land and his private mining claim, discharging dredged/fill material into adjacent wetlands and a tributary flowing to Cataract Creek (connected to traditionally navigable waters).
- EPA warned Robertson he "very likely" needed permits; he did not obtain Corps/Army permits under the Clean Water Act (CWA).
- A grand jury indicted Robertson on three counts: two CWA counts for unlawful discharges (on federal and private property) and one count under 18 U.S.C. § 1361 for injuring U.S. property; first trial hung, second trial resulted in convictions on all counts.
- Robertson appealed, challenging CWA jurisdiction (what counts as "waters of the United States"), vagueness/fair-warning, sufficiency from the earlier mistrial, several evidentiary rulings (expert testimony and excluded documents), and restitution calculation.
- Ninth Circuit concluded that CWA jurisdiction was properly found under Justice Kennedy’s "significant nexus" test as adopted in Ninth Circuit precedent, and rejected Robertson’s other challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CWA jurisdiction — what are "waters of the United States" | Govt: Jurisdiction may be proven under Kennedy’s "significant nexus" test | Robertson: Kennedy’s test is not controlling after Davis; plurality or no clear rule applies, so jury instructions were wrong | Court: City of Healdsburg (Kennedy’s significant-nexus test) remains controlling in Ninth Circuit; no error in jury instruction or finding of jurisdiction |
| Vagueness / fair-warning | Govt: CWA criminal provisions and precedent provided notice | Robertson: Ambiguity post-Rapanos/Davis made statute too vague for fair warning | Court: Robertson had fair notice before his conduct (City of Healdsburg/ Kennedy test existed), so no due-process vagueness violation |
| Challenge to sufficiency from first (hung) trial | Robertson: District court should have granted acquittal after first trial insufficiency motion | Govt: Richardson permits retrial despite prior insufficiency finding | Court: Following Richardson and circuit precedent, a defendant cannot challenge sufficiency of evidence from a prior hung trial after conviction at retrial |
| Admissibility of Corps expert (Tillinger) | Robertson: Law unsettled so expert testimony inappropriate; relied on nonbinding guidance and ordinary high-water-mark | Govt: Expert may explain facts and methodology; jury gets legal instruction | Court: No abuse of discretion — expert testimony permissible; jury received correct legal instructions |
| Exclusion of Corps Guidance Manual and Crystal Mine Study | Robertson: Manual shows Corps used forbidden factors; Study shows poor water quality undermining "significant nexus" | Govt: Manuals could confuse jury; Study irrelevant to significant-nexus analysis | Court: District court acted within discretion excluding both under Rules 401/403; no constitutional error; Robertson could still question witnesses using the Manual |
Key Cases Cited
- Rapanos v. United States, 547 U.S. 715 (2006) (plurality and Kennedy concurrence framing competing tests for "waters of the United States")
- City of Healdsburg v. Northern California River Watch, 496 F.3d 993 (9th Cir. 2007) (adopting Kennedy’s "significant nexus" test as controlling in Ninth Circuit)
- United States v. Davis, 825 F.3d 1014 (9th Cir. en banc 2016) (clarified Marks analysis; adopted reasoning-based approach)
- Marks v. United States, 430 U.S. 188 (1977) (when no single rationale garners five votes, the holding is the narrowest grounds supporting the judgment)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel must follow prior circuit precedent unless clearly irreconcilable)
- Richardson v. United States, 468 U.S. 317 (1984) (hung jury and retrial permitted; insufficiency at first trial does not bar retrial)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (vagueness doctrine: criminal statutes must give fair warning and not invite arbitrary enforcement)