                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30014

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00008-SLG-2
 v.

DARREN K. BYLER,                                MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   Sharon L. Gleason, District Judge, Presiding

                             Submitted June 13, 2018**
                                Anchorage, Alaska

Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.

      Darren Byler appeals from his convictions for violating the Refuse Act, 33

U.S.C. §§ 407, 411, and making a false statement during the course of the

investigation, 18 U.S.C. § 1001. We have jurisdiction, and we affirm.

      Byler does not contest that sewage from his vessel, the Wild Alaskan, was


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discharged directly into Kodiak Harbor or that he provided false statements to

government officials about the dumping. Instead, Byler challenges his convictions

by arguing that (1) the Refuse Act does not criminalize the dumping of “sewage”;

(2) the Refuse Act permits “de minimis” deposits; and (3) his prosecution was the

result of selective enforcement as he was targeted for exercising his First

Amendment right of freedom of expression in operating a strip club. Because

Byler raises these arguments for the first time on appeal, they are subject to plain

error review. See United States v. Olano, 507 U.S. 725, 731 (1993) (“Federal Rule

of Criminal Procedure 52(b), which governs on appeal from criminal proceedings,

provides a court of appeals a limited power to correct errors that were forfeited

because not timely raised in district court.”).

      The Refuse Act broadly prohibits “deposit[ing]” into navigable waters “any

refuse matter of any kind or description” “other than that flowing from streets and

sewers and passing therefrom in a liquid state.” 33 U.S.C. § 407; see also United

States v. Standard Oil Co., 384 U.S. 224, 229 (1966) (“More comprehensive

language would be difficult to select.”). Citing United States v. Republic Steel

Corp., 362 U.S. 482, 490–91 (1960), Byler interprets the exception as permitting

his dumping of human waste from the Wild Alaskan into the harbor. We disagree.

      The defendant in Republic Steel Corp. operated mills on a riverbank and

deposited “industrial waste containing various solids” into the river to raise the


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riverbed by several feet. 362 U.S. at 483. The Court rejected the defendant’s

argument that the exception applied because the industrial waste was deposited

through sewers: “Refuse flowing from ‘sewers’ in a ‘liquid state’ means to us

‘sewage.’” Id. at 490. The Court thus declined “the invitation to broaden the

exception,” limiting the “sewers” exception to sewage flowing from sewers. Id.

Byler’s conduct in dumping human waste directly from the Wild Alaskan into the

harbor is not permitted under the Refuse Act.

      Byler’s “de minimis” argument fails for at least three reasons. First, the

Refuse Act contains no exception for de minimis deposits. See 33 U.S.C. § 407.

Second, because Byler failed to raise this argument at trial, he should prevail only

if the asserted error was so obvious that the district court should have raised the

issue sua sponte. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016) (“[T]he error must be plain—that is to say, clear or obvious.”). It is not

obvious that de minimis discharges are exempted. Third, substantial evidence

supports a conclusion that Byler discharged thousands of gallons of raw sewage

into the harbor. That amount is not de minimis under any standard. The

prosecution presented evidence—from Byler’s own documentation—that the Wild

Alaskan generated thousands of gallons of sewage during its operation as well as

evidence from which the jury could have concluded that all such sewage was

unlawfully discharged. Contrary to Byler’s suggestion, the discharge of thousands


                                          3
of gallons of sewage is not rendered de minimis simply because the sewage may

have been discharged one flush at a time. (At least one toilet on the vessel was

plumbed to send sewage directly overboard.)

      Byler’s argument that he was targeted for exercising his First Amendment

rights fails to meet the “demanding” standard for proving discriminatory effect and

motive. See Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012) (en banc).

Byler identified no instance of another vessel dumping raw sewage into the harbor

without being prosecuted. Besides speculation and a list of rhetorical questions,

the only support Byler offered for his First Amendment argument is his

mischaracterization of a conversation between himself and a prosecution witness

from the Harbormaster’s office. The witness testified that, in his conversation with

Byler, Byler suggested that “he was being investigated for a sewage discharge, but

this is something that happens all the time in the harbor, basically. Other boats do

it. And that if he’s being investigated, everybody else in the harbor should be

investigated.” By recounting Byler’s suggestion that “other boats do it,” the

witness did not adopt or otherwise legitimize Byler’s unsubstantiated view. The

most obvious explanation for any scrutiny Byler received was that he was

operating the only business in the harbor with a steady flow of patrons aboard the

vessel at a time when city officials were particularly concerned about sewage

overflowing into the harbor.


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AFFIRMED.




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