                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 18 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30050

              Plaintiff - Appellee,              D.C. No. 3:13-cr-05288-RJB-1

 v.
                                                 MEMORANDUM*
JAMES BARBER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert J. Bryan, Senior District Judge, Presiding

                        Argued and Submitted May 5, 2015
                               Seattle, Washington

Before: GOULD and CHRISTEN, Circuit Judges and BLOCK,** Senior District
Judge.

      James Barber appeals his conviction for knowingly violating the Clean

Water Act, 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), by opening the Paradise

Wastewater Treatment Plant’s bypass valve, and thereby discharging several

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
thousand gallons of minimally treated wastewater into the Nisqually River within

Mt. Rainier National Park, Washington. Barber contends that the district court

erred when it did not dismiss the indictment based either on selective prosecution

or entrapment by estoppel and when it refused to give his requested jury

instructions on entrapment by estoppel or necessity. Barber also challenges the

sufficiency of the evidence underlying his conviction. We reject all of Barber’s

claims and affirm his conviction.

      Barber has not shown evidence of selective prosecution. “The Attorney

General and United States Attorneys retain broad discretion to enforce the Nation’s

criminal laws.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (internal

quotation marks omitted). Of course, the “decision whether to prosecute may not

be based on an unjustifiable standard such as race, religion, or other arbitrary

classification.” Id. But Barber’s unsupported assertions—that this prosecution is

impelled by a desire to force him out of the National Park Service, or that it is in

retribution for Barber’s appeal of the Washington State Department of Ecology’s

decision to revoke his license to operate wastewater treatment plants—are

insufficient to rebut the presumption in favor of prosecutorial regularity.

      Barber also does not show error in the district court’s rejection of his

proposed jury instructions on necessity and entrapment by estoppel. The defense


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of entrapment by estoppel applies when an authorized government official tells the

defendant that certain conduct is legal, and the defendant reasonably relies on the

official’s statement. United States v. Hancock, 231 F.3d 557, 567–68 (9th Cir.

2000). Here, the record suggests that Barber was told by a prior operator of the

plant how to open the bypass valve and that this was “a last resort, emergency

situation.” But there is no evidence indicating that an official told him what

situations might qualify as a “last resort,” and Barber himself told investigators that

he was unaware of prior situations in which the bypass had been opened. The

vague statement of the prior official is insufficient to support an entrapment

defense. See id. at 567. Further, the statement Barber apparently relies upon was

accompanied by several directions as to other procedures required to minimize the

potential impact of a bypass, including connection of a chlorine disinfectant

“crock,” the taking of wastewater samples, and the notification of other operators

by documenting all these actions in the logbook. The record shows that Barber

took none of these additional steps, which discredits the argument that he acted

based on his training.

      Similarly, the district court did not err in rejecting Barber’s necessity

instruction. Barber chose not to testify, as was his right. But, the record contains

no evidence by which a reasonable jury could infer that Barber “was faced with a


                                          -3-
choice of evils and reasonably chose the lesser evil,” or that “he reasonably

believed there were no other legal alternatives to violating the law.” United States

v. Perdomo-Espana, 522 F.3d 983, 988 (9th Cir. 2008).

         Finally, we conclude that sufficient evidence supports Barber’s conviction.

Evidence was presented to the jury showing that Barber was aware of the declining

efficiency of the wastewater plant over the course of the summer, and aware that

water exiting the plant, even after passing through all phases of wastewater

treatment, was beginning to exceed targets for pollution levels. Barber concedes

that he purposefully opened the bypass valves; a reasonable jury could conclude

that Barber understood that his actions, which bypassed the final phase of

wastewater treatment, would cause a discharge of pollutants into the Nisqually

River.

         AFFIRMED.




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