United States v. Mike Vierstra

MEMORANDUM

Defendant Mike Vierstra appeals his misdemeanor conviction for the negligent discharge of a pollutant into the waters of the United States without a permit, in violation of 33 U.S.C. §§ 1311 (a) and 1319(c)(1)(A). Whether we review de novo (as Defendant urges) or for plain error (as the government urges), we affirm, because there were no errors.

1. The criminal prosecution did not violate double jeopardy principles, because the previous enforcement action was civil in nature. See Hudson v. United States, 522 U.S. 93, 99 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997) (“The [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense.”). Defendant concedes that the statute labels the penalty as “civil,” so our only inquiry is “whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Id. (internal quotation marks, citation, and brackets omitted). Having considered the relevant factors, id. at 99-100 , 118 S.Ct. 488 , we easily conclude that this high standard is not met here, see id. at 100 , 118 S.Ct. 488 (“[O]nly the…