United States v. James Barber

MEMORANDUM

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 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 es-toppel 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 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (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…