United States v. David Phillips, United States of America v. David Phillips

ORDER

The opinion filed on January 28, 2004, and cited at 356 F.3d 1086 (9th Cir.2004), is amended as follows:

1. Pages 1100-01, paragraph beginning “Phillips’ prior state prosecution,” second sentence should read:

2. Page 1101, last paragraph of Section C beginning “The district court improperly,” change the first sentence to read:

3. Pages 1102-03, last paragraph of the opinion, in the second-to-last sentence beginning “The court should not consider,” delete the phrase “Phillips’ prior state prosecution or” so the sentence reads:

With these amendments, the panel has voted unanimously to deny the petition for panel rehearing and the petition for rehearing en banc.

The petition for rehearing and the petition for rehearing en banc are DENIED.

OPINION

David Phillips appeals his criminal conviction for violating the Clean Water Act (“CWA”) and conspiring to violate the CWA. We disposed of many of Phillips’ claims in a separate memorandum disposition. In this opinion, we reject Phillips’ remaining claim: that the district court erred in refusing to dismiss the indictment for lack of jurisdiction on the ground that Fred Burr Creek (the “creek”) was not a navigable water under…