tim dechristopher appeal

8/3/2019 Tim DeChristopher appeal

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Case No. 11-4151

IN THE TENTH CIRCUIT COURT OF APPEALS

UNITED STATES OF AMERICA,

Appellee/Plaintiff,

v.

TIM DECHRISTOPHER,

Appellant/Defendant.

This is a direct appeal from convictions entered in the United States DistrictCourt for the District of Utah, the Honorable Dee Benson, Judge, presiding.

OPENING BRIEF OF APPELLANTORAL ARGUMENT REQUESTED

RONALD J. YENGICH (3580))YENGICH RICH & XAIZ175 EAST 400 SOUTH, SUITE 400SALT LAKE CITY, UTAH 84114

TELEPHONE: (801)355-0320

ELIZABETH HUNT (5292)ELIZABETH HUNT LLC569 BROWNING AVE.SALT LAKE CITY, UTAH 84105

TELEPHONE: (801) 706-1114

PATRICK A. SHEA (2929)PATRICK A. SHEA P.C.252 SOUTH 1300 EAST, SUITE ASALT LAKE CITY, UTAH 84102

TELEPHONE: (801)582-0949

Appellate Case: 11-4151 Document: 01018748052 Date Filed: 11/18/2011 Page: 1


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TABLE OF CONTENTS

JURISDICTIONAL STATEMENT . . . 1

ISSUES PRESENTED FOR REVIEW . . . 1

STATEMENT OF THE CASE . . . 2

STATEMENT OF RELEVANT FACTS . . . 3

SUMMARY OF ARGUMENTS. . . 13

ARGUMENTS . . .15

I. THE EVIDENCE WAS LEGALLY INSUFFICIENT. . . 15

STANDARD OF REVIEW . . . 15

DISCUSSION . . . 16

A. THE EVIDENCE WAS INSUFFICIENT TOSUSTAIN COUNT 1. . . 16

B. THE ELEMENTS INSTRUCTION FOR COUNT 1 WAS LEGALLY INCORRECT. . . 21

C. THE EVIDENCE WAS LEGALLYINSUFFICIENT TO SUSTAIN COUNT 2. . . 24

D. THE CONSTRUCTIVE AMENDMENT OF THEINDICTMENT INDEPENDENTLY REQUIRESREVERSAL OF COUNT 2. . . 28

II. THE VIOLATION OF DECHRISTOPHERSCONSTITUTIONAL RIGHTS TO PRESENT HIS DEFENSEREQUIRES REVERSAL OF HIS CONVICTIONS. . . 29

STANDARDS OF REVIEW . . . 29



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DISCUSSION . . . 30

A. THE TRIAL COURT VIOLATEDDECHRISTOPHERS CONSTITUTIONALRIGHTS TO DEFEND HIMSELF ANDCONFRONT THE GOVERNMENTS CASE. . . .33

B. THE COURT ABUSED ITS DISCRETION INBLOCKING THE NECESSITY DEFENSEPRIOR TO TRIAL. . . .42

1. DECHRISTOPHER CHOSE THE LESSER EVIL. .42

2. DECHRISTOPHER ACTED TO PREVENTIMMINENT HARMS. . . .47

3. THERE WAS SUFFICIENT CAUSAL NEXUSBETWEEN THE HARMS TO BE AVERTED ANDDECHRISTOPHERS CONDUCT. . . .49

4. DECHRISTOPHER HAD NO LEGALALTERNATIVES. . . .52

III. THE COURT AND PROSECUTION VIOLATEDDECHRISTOPHERS FIRST, FIFTH ANDFOURTEENTH AMENDMENT RIGHTS BYPROSECUTING AND IMPRISONING HIM FOR

WHAT HE SAID. . . .55

STANDARDS OF REVIEW . . .55

DISCUSSION . . .56

IV. THE COURT SHOULD REACH THE MERITS OF ALLISSUES RAISED. . . .63

CONCLUSION . . .64

ORAL ARGUMENT STATEMENT . . .64



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CERTIFICATE OF COMPLIANCE . . . 65

CERTIFICATE OF ELECTRONIC SERVICE . . .65

ATTACHMENTS TO THE BRIEF

Trial courts written rulings

Memorandum Opinion and Order re: Necessity Defense

Order re: Discovery underlying Selective Prosecution Claim

Judgment in a Criminal Case

Trial courts oral rulings

Oral Ruling on Selective Prosecution

Evidentiary Rulings

Rulings Denying Motions to Dismiss

Jury Instruction Conference

Sentence

Pertinent provisions of law



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TABLE OF AUTHORITIES

CASES

Brandenburg v. Hayes, 395 U.S. 444, 447-48 (1969). . . .56

Burlington Northern and Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1020 (10th

Cir. 2007) . . .47

Caminetti v. United States, 242 U.S. 470, 485 (1917). . . .16

California v. Green, 399 U.S. 149, 158 (1970). . . .38

Columbia Broadcasting Systems Inc. v. Democratic National Committee, 412

U.S. 94, 155-56 (1973). . . .56

Connecticut v. American Elec. Power Co. Inc., 582 F.3d 309, 339-344 (2d Cir.

2009), overruled on other grounds, American Elec. Power Co. Inc., v.

Connecticut, 131 S.Ct. 2527 (2011) . . .48, 51

Crane v. Kentucky, 476 U.S. 683, 690 (1985). . . .37, 42, 55

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006). . . .48

Duncan v. Louisiana, 391 U.S. 145, 156 (1968) . . .40

Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006). . . .57

General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) . . .30

H.J. Inc. v. Northwestern Bell Telephone Company, 492 U.S 229, 244-45

(1989) . . .19

Impact Energy Resources v. Salazar, 2010 WL 3489544 . . .33, 44, 49

Kolender v. Lawson, 461 U.S. 352, 357 (1983) . . .16



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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) . . .48

McDaniel v. Brown, 130 S.Ct. 665, 672 (2010) . . .29

Meghrig v. KFC Western, Inc., 516 U.S. 479, 485 (1996). . . .47

Montana Environmental Information Center v. United States Bureau of Land

Management, et al, Case CV-08-178 (D. Mon. 2009) . . .5

Oyler v. Boles, 368 U.S. 448, 456 (1962). . . .56

Pueblo v. Sandia v. United States, 50 F.3d 856, 862 n.6 (10 th Cir. 1995) . . .39

Rock v. Arkansas, 483 U.S. 44 (1987) . . .42, 55

Sandstrom v. Montana, 442 U.S. 510, 523 (1979) . . .40

Southern Utah Wilderness Alliance v. Allred, 2009 WL 765882 (D.D.C. 2009) .

5, 9, 10

St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp, 605 F.2d 1169, 1172

(10th Cir. 1979) . . .39

United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006). . . .55

United States v. Amon, 669 F.2d 1351, 1362 (10th Cir. 1981) . . .56, 59, 61

United States v. Apperson, 441 F.3d 1162, 1204 (10 th Cir. 2006). . . . 42, 46,

55

United States v. Armstrong, 517 U.S. 456, 470 (1996) . . .57

United States v. Bangert, 645 F.2d 1297, 1308 (8th Cir. 1981) . . .62

United States v. Butler, 485 F.3d 569, 571-72 (10th Cir. 2007) . . .30, 42, 55

United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005). . . .57



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United States v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985). . . .52-53

United States v. Dukehart, 687 F.2d 1301, 1303 (10th Cir. 1982). . . . 56, 57, 59,

61

United States v. Finn, 375 F.3d 1033, 1037 (10 th Cir. 2004). . . .24

United States v. Gaudin, 515 U.S. 506, 510-515 (1995). . . .16, 29

United States v. Heredia-Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003). . . .55

United States v. Hien Van Tieu, 279 F.3d 917, 921 (10 th Cir. 2002). . . .22, 24,

29

United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). . . .55

United States v. Joe, 8 F.3d 1488, 1497 (10 th Cir. 1993) . . .29

United States v. Lemon, 723 F.2d 922, 937 (D.C. Cir. 1983). . . 63

United States v. Marcus, 130 S.Ct. 2159, 2164 (2010), 176 L.Ed. 2d 1012, 78

U.S.L.W. 4453 . . .63

United States v. Maxwell, 254 F.3d 21, 28 (1st Cir. 2001) . . .52

United States v. Montgomery, 772 F.2d 733, 376 (11th Cir. 1986) . . .52

United States v. Nixon, 418 U.S. 683, 708-09 (1974). . . .41

United States v. Patton, 451 F.3d 615, 637 (10 th Cir. 2006) . . . 30

United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986) . . .62

United States v. Schoon, 971 F.2d 193, 197 (9th Cir. 1991). . . .50, 52

United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007). . . .15

United States v. Serawop, 410 F.3d 656, 667 (10th Cir. 2005). . . .21-22



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United States v. Tejada-Beltran, 50 F.3d 105, 113 (1st Cir. 1995) . . .19

United States v. Turner, 44 F.3d 900, 902 (10th Cir. 1995). . . .42, 46

United States v. Vaughn, 370 F.3d 1049, 1053 (10th Cir. 2004) . . .41

United States v. Weidner, 437 F.3d 1023, 1042 (10 th Cir. 2006). . . .30

United States v. Zuniga-Soto, 527 F.3d 1110, 1118 (10th Cir. 2008) . . .21-22, 29

Wayte v. United States, 470 U.S. 598, 608 (1985) . . .56, 59, 61

Weems v. United States, 217 U.S. 349, 384 (1910) . . .16

Whiteis v. Yamaha Intern. Corp., 531 F.2d 968, 973 (10th

Cir. 1976). . . .16

CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS ANDRULES

18 U.S.C.A. 1001. . .2, 24-26

18 U.S.C. 3231. . .1

28 U.S.C. 1291. . .1

30 U.S.C.A. 181 through 287. . .20

30 U.S.C.A. 195. . .2, 13, 16-22

30 U.S.C.A. 226. . .33, 42, 49

43 CFR 3102.1. . .27-28

43 CFR 3120. . .20

Federal Rule Of Evidence 401. . .37




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United States Constitution, Amendment I. . .55

United States Constitution, Amendment V. . .22, 56

United States Constitution, Amendment VI. . .22

United States Constitution, Amendment XIV. . .55-56

OTHER AUTHORITIES

Hatch, BLM, Stop Dithering Over Oil and Gas Leases: Why the Leases MustBe Issued in Sixty Days, 31 UTELR 461 (2011); accord Impact EnergyResources v. Salazar, 2010 WL 3489544. . .33, 42, 49

Sansonetti and Murray, A Primer on the Federal Onshore Oil and GasLeasing Reform Act of 1987 and its Regulations, 25 Land and Water L. Rev.375,passim(1990) . . .17, 19

A Guide to the Federal Onshore Oil and Gas Leasing Reform Act of 1987,

written by John F. Shepherd and Jeanine Feriancek and published by theNatural Resources, Energy, and Environmental Law Section of the AmericanBar Association. . .17

STATEMENT OF RELATED CASES

There are no related cases or prior appeals.



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JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction over this criminal case. See

18 U.S.C. 3231. This Court has subject matter jurisdiction over DeChristophers

appeal from his criminal convictions. See 28 U.S.C. 1291.

The final judgment was announced on July 26, 2011, signed on July 27, 2011,

and entered on the docket on July 28, 2011 (DA 26-31). 1 The notice of appeal was

entered on July 29, 2011 (document 78).

The appeal is from a final order or judgment that disposes of all claims of the

United States and Tim DeChristopher that pertain to the criminal case.

ISSUES PRESENTED FOR REVIEW

1. Must the convictions be reversed as a result of insufficient evidence and

erroneous elements instructions?

These issues were raised and ruled on in the trial court. See DA 769-771,

867-68, 874-891.

2. Did the trial court violate DeChristophers constitutional rights to

defend against the criminal charges, and thereby deprive the jury of the evidence and

law necessary to its reaching a fair and reliable verdict?

This issue was raised and ruled on in the trial court. See, e.g., DA 13-21,

1 DeChristophers Appendix is referred to herein as DA, followed by the



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41-282, 285-356, 417-448; docket entries 12, 18, 20, 24, 26, 27, 28, 29, 30, 31.

3. Did the trial court violate DeChristophers rights to due process, equal

protection of the law and freedom of speech in permitting the prosecution to proceed

despite knowing that it was prompted by DeChristophers exercise of his First

Amendment rights, and in sending him to prison as a result of his exercise of his First

Amendment rights?

The selective prosecution issue was raised and ruled on in the trial court. See

e.g., DA 22-25; 283-84, 449-78; docket entries 33, 34, 35, 37, 39, 40.

STATEMENT OF THE CASE

The Government charged DeChristopher in Count 1 of the indictment with

violating 30 U.S.C.A. 195(a)(1), alleging that DeChristopher organized and

participated in a scheme, arrangement, plan and agreement to defeat the Federal Oil

and Gas Lease Reform Act, by representing himself to be a bona fidebidder when he

was not, by completing a bidder registration form certifying his good faith intention to

acquire an oil and gas lease on the lands, and by bidding on and purchasing oil and gas

leases which he could not and did not intend to pay for (DA 32-40).

The Government charged DeChristopher in Count 2 of the indictment with

violating 18 U.S.C.A. 1001, alleging that in a matter within the jurisdiction of the

BLM, DeChristopher knowingly and willfully made a false and fraudulent material



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misrepresentation by completing and signing a bidder registration form which

certified that he had a good faith intention to acquire an oil and gas lease on lands

offered by auction, when he had no true intent to do so (DA 32-40).

The jury convicted DeChristopher as charged (document 61). The court

sentenced DeChristopher to twenty-four months in the custody of the Federal Bureau

of Prisons, to be followed by a term of thirty-six months of supervised release (DA

27-29). The court fined him $10,000 (DA 30). DeChristopher appealed (document

78).

STATEMENT OF RELEVANT FACTS2

On Dec. 19, 2008, the BLM, then acting in the last days of the Bush

administration, held an auction for oil and gas leases of roughly 150,000 acres of

public lands. The auction involved several unique and treasured landscapes near

Arches National Park, Dinosaur National Monument, Canyonlands National Park,

Desolation Canyon, Nine Mile Canyon, Hatch Point, and the Needles Overlook.

Several of the parcels to be auctioned were on environmentally and archeologically

sensitive areas and public lands supporting local economies as tourist attractions, and

encompassed protected fish and wildlife habitats. See, e.g., DA 309-313, 296-306,

210-213.

2 The trial court excluded much of the relevant evidence. Hence, thestatement of facts often cites to portions of DeChristophers proffers.



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As the Secretary of the Interior Ken Salazar acknowledged after the fact, the

Bush administration engaged in a headlong rush to leasing, and in arranging for the

auction took shortcuts and actions that were not scientifically sound or in

compliance with the environmental laws (DA 206, 309-313).The BLM did not

provide the standard three-month notice previously given as to which parcels of land

were up for lease and cut short the normal study and objection period for the

National Park Service and other federal and state agencies and organizations. It was

on October 31, 2008 that the BLM finalized six resource management plans, each

over 1,000 pages long, and on Election Day, November 4, 2008, that it announced the

parcels for the December 19th auction. As a result of the lack of notice, the normal

studies done to weigh the public interests in health, land management, environmental

safety, wilderness protection, and archeological and historical preservation against the

financial interests of oil and gas companies were not adequately performed. See, e.g.,

DA 210-213, 274-78, 296-306.

The BLM received and largely disregarded complaints from the Environmental

Protection Agency, National Park Service, Hopi Tribe, and numerous other

organizations, that it had failed to comply with the National Environmental Policy

Act, Clean Air Act, Federal Land Policy and Management Act, National Historic

Preservation Act, and Secretarial Order 3226, which required it to consider and



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analyze potential climate change impacts in its management plans.3 The BLM took

no heed of adverse publicity documenting its improprieties in the days leading up to

the auction.4The Southern Utah Wilderness Alliance filed suit two days prior to the

December auction in Southern Utah Wilderness Alliance v. Allred, 2009 WL 765882

(D.D.C. 2009). Protests were filed as to the legality of auctioning all 132 parcels of

land, and as was expected by the government officials, on December 19, 2008,

demonstrators were present outside the auction to protest it before it began (DA 515,

529).

DeChristopher, a University of Utah student in economics, came late to the

demonstration because he had a final examination that morning (DA 799, 801). He

had been concerned about environmental issues all his life, and had received many

3 In April of 2010, in Montana Environmental Information Center v. United

States Bureau of Land Management, et al, Case CV-08-178 (D. Mon. 2009), the BLMentered into a settlement agreement that was to have no precedential valueacknowledging that Interior Secretarial Order 3226 was a law it was required tocomply with in issuing leases under NEPA. The settlement followed a ruling from thecourt on May 27, 2009, rejecting the BLMs contention that Secretarial Order 3226,

which had been in effect since 2001, had no legal effect. The court ruled thatInterior Secretarial Order 3226 had the force and effect of law.

4 For example, a New York Times article published on November 7, 2008,detailed the BLMs violation of protocol in setting up the December 19, 2008 auction

of many parcels that were previously off limits, and the profound consequences of thelikely irreversible leases (DA 210-212). The report of Congressman Raul Grijalva,published October 22, 2008, documented the BLMs avoiding NEPA, expediting oiland gas permits too fast for government archeologists and biologists to properlyoversee and perform field inspections, permitting oil company-paid volunteers toprocess drilling permits, and harming the environment (DA 65-90).



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emails and notices of demonstrations regarding the auction (DA 799-800). He had

also learned of the auction from his classes and newspapers, and was aware of

legitimate concerns about whether the government was following its own procedures

in holding the auction (DA 799-800). For instance, he was aware that the BLM had

failed to comply with the Federal Land Policy and Management Act in preparing for

the auction (DA 695).

He walked from one end of the protest to the other and then went inside the

building where the auction was to occur (DA 802). He had no particular intention at

that point, but wanted to take stronger action than simply demonstrating outside the

auction, as he felt the protest would be ineffective (DA 802, 804). He wanted to

wave a red flag and bring enough attention to the matter that the government

would reconsider its actions, and so that the new administration would have time to

reconsider the illegitimate auction and make sure the government was following its

own laws (DA 809, 819, 826, 842).

DeChristopher had not read the statutes or public laws revolving around the

auctions, and did not know how the auctions worked (DA 804-05). A BLM

employee asked him if he was a bidder, and assuming that this was the only way to

attend the auction, DeChristopher said he was (DA 804-05). He showed his drivers

license, and skimmed, completed and signed a bidder registration form (DA 806).



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At the time DeChristopher completed and signed the form, he had no

intention of actually bidding in the auction; he misperceived that posing as a bidder

was his only means of entering the auction (DA 804-05). That he was not intending

to participate in the bidding is confirmed by the fact that DeChristopher was seen

putting his bidder paddle in his bag directly after he received it (DA 543).5 He

testified that while he did not recall having done so, he likely did put the paddle in his

bag, as he normally carried papers in his bag (DA 807). The auction actually was open

to the public, and people who were merely there to observe and members of the

media were allowed in (DA 497, 547).

The auction was filmed, and the recording was shown to the jury.

DeChristopher initially looked around the room and in his bag and was not focusing

on the auction (DA 552-54). After sitting through roughly twenty minutes of the

auction, DeChristopher decided to actually participate, and he began to bid to drive

up prices so that the oil industry representatives would pay something approaching

the fair market value of the land (DA 585, 604, 810, 838-39). However, he held up

his bidder paddle on a parcel that no one else wanted, and thus inadvertently won the

lease, at a cost of roughly $500 (DA 562). He appeared shocked by this and paused

before he chose to re-enter the bidding (DA 562). He later won a parcel worth

5The bidder paddle was not identified as such, but was simply a piece of 8 by 11 card stock with a large number 70 printed on it (DA 407).



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$25,000, again apparently without intending to do so, as his face lost color and he

slumped after he won the parcel (DA 564, 586). DeChristopher made a committed

choice to leave his bidder paddle up and to thereby continue bidding on and winning

a total of fourteen leases with a total worth of almost 1.8 million dollars (DA 564,

577, 581, 585). Other bidders left the auction, and BLM officials called a recess,

during which BLM Special Agent Love asked DeChristopher to come speak with him

(DA 565, 571).

DeChristopher politely did as Love requested, waived his Miranda rights, and

repeatedly and forthrightly admitted to his choices and actions, and to the fact that he

had no means of paying for the leases he had won (DA 572-82). He asked how much

trouble he was in, acknowledged having read and understood the bidder registration

form, admitted he knew it was a crime to make fraudulent bids, and said he was

prepared to deal with the consequences (DA572, 577). He told Love he intended to

adversely affect the auction and did not believe he had a legal means of effecting

change (DA 601).

The BLM employees opted not to complete the auction or to re-bid the parcels

won by DeChristopher, because some of the bidders had left and because the

confidentiality as to who was interested in the parcels and what they were willing to



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pay for them had been vitiated during the auction (DA 623-24).6 The BLM

informed the bidders aside from DeChristopher that they could renege on their

obligations to pay for the parcels they had won if they so chose (DA 593, 743).

Directly after he left the auction, DeChristopher called his friend, Michael

Mielke, a wealthy professional fundraiser, and asked for help (DA 791-94, 821).

Mielke confirmed with Cliff Lyon, a political activist who was then present at Mielkes

home, that they could raise the money to pay for the leases (DA 794-95, 821).

However, when counsel for DeChristopher sought to arrange to pay for the leases,

the BLM would not accept payment (DA 613). Several months later, the BLM

representatives attempted to civilly fine DeChristopher the amount he owed as a

down-payment, roughly $81,000, but claimed at trial that the letter they sent by

registered mail to DeChristophers correct address, the same address on the bidder

registration form, came back undeliverable (DA 735).

On January 11th, 2009, in Southern Utah Wilderness Alliance v. Allred, No.

08-2187, 2009 WL 765882 (D.D.C. Jan. 17, 2009), which had been filed two days prior

to the auction, Judge Urbina of the District of Columbia Federal District Court issued

a temporary restraining order prohibiting the BLM from leasing the 77 contested

6The record is unclear as to what occurred after the auction halted and AgentLove approached DeChristopher. Tina Brown testified that the BLM did not restartor reboot the auction (DA 623-24). Kent Hoffman testified inconsistently that heconsidered but opted not to restart the auction (DA 655), but also testified that there

was a brief hiatus when Agent Love spoke with DeChristopher and that they restartedthe auction (DA 677).



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parcels sold in the December auction, focusing on the federal governments apparent

failure to comply with the relevant federal statutes: the National Environmental Policy

Act (NEPA), National Historic Preservation Act (NHPA), and the Federal Land

Policy and Management Act (FLPMA). See DA 274-78. The court recognized

that the plaintiffs have made the requisite likelihood of success showing as to their

NEPA claim and had made a showing of success on the merits of their NHPA and

FLMPA claims. The court issued the TRO because the plaintiffs faced irreparable

harm absent the injunction and to stop the threat of irreparable harm to the public

land if the leases [we]re issued. Southern Utah Wilderness Alliance v. Allred, 2009

WL 765882 (D.D.C. 2009) (DA 274-81). Judge Urbina expressly recognized that

the lease sale represents the point at which the BLM makes an irreversible and

irretrievable commitment[] of resources, (DA 277).

After the December auction, when the new administration was sworn into

office, newly appointed Secretary of the Department of Interior, Ken Salazar, ordered

the 77 leases to be withdrawn and the moneys refunded to those bidders who had paid

(DA 166, 309-314). He acknowledged that the Bush administration rushed the

December auction and made many decisions that did not provide for necessary

environmental assessment and thus were not scientifically sound (DA 206, 309-313).



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Deputy Secretary of the Interior David Hayes later issued a report documenting

many deviations from standard and prudent protocol in the December auction.7

While Hayes did not directly discuss the BLMs disregard of Interior Secretarial Order

3226, he documented the BLMs failure to adequately address air quality and other

environmental issues, to give adequate notice to the National Park Service and others

so that the proposals could be studied appropriately, to act as steward of some of

Americas most treasured and vulnerable public landscapes, and to consider the

publics interests, which at times competed or conflicted with the interests of the oil

and gas industries. Hayess recommendations were for the BLM to improve the

planning process and implement guidelines so that the relevant government agencies,

local governments and various stakeholders and members of the public could have

time to investigate proposed lease areas. He recognized the importance of their input

into the ultimate decision as to whether the proposed parcels were suitable for oil and

gas exploration or should be preserved to accommodate the local economies and

protect environmental, health, archeological and recreational interests. The Hayes

report proposed the formulation of an interdisciplinary team to reassess the parcels

offered in the December 19, 2008 auction and also suggested that the BLM create an

air quality assessment for the regions involved. See, e.g., DA 296-306.

7The full report is on the internet at:http://www.blm.gov/pgdata/etc/medialib/blm/ut/lands_and_minerals/oil_and_gas/november_2011.Par.88044.File.dat/Utah_Final_Report.pdf.



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In September of 2009, the General Accountability Office reviewed the BLMs

use of categorical exclusions to detailed environmental reviews for oil and gas

development from 2006 to 2008, and concluded that the BLM had frequently violated

the law in approving oil and gas development, and had thereby harmed air quality and

habitats for endangered species. The report also expressed concerns about damage

to historical and archeological treasures caused by the BLMs leasing practices. See

DA 92-163.

Finally, the multi-disciplinary team suggested by the Hayes report issued its own

report on October 7, 2009. Much of the assessment focused on the need for proper

environmental review and air quality planning to protect the ozone layer. Failures to

protect archeological, cultural and historical treasures, and to account for wildlife

habitats, dark night skies, viewsheds and soundscapes were also detailed in the report.

This report acknowledged the BLMs failure to consult with the National Park Service,

as required by regulation, and recommended additional effort to comply with the

Endangered Species Act and related laws. The report directed that the BLM should be

leading government agencies to cooperatively select lease parcels, rather than selecting

the lease parcels nominated by the oil and gas industry representatives. The report

documented that there were so many industry-nominated parcels that there was a

backlog waiting to be processed, resulting in time pressures for completion of the

work by the BLM staff and political leverage problems. The report concluded that



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of the 77 contested parcels in the December 19th auction, only 17 were leasable. The

other sixty were either wholly inappropriate for leasing for oil and gas exploration, or

required further evaluation. See DA 165-203.

SUMMARY OF ARGUMENTS

The language in the statute underlying Count 1 describes an anticipatory or

inchoate offense similar to conspiracy, the gravamen of which is consorting to defeat

or circumvent the provisions in the Federal Onshore Oil and Gas Leasing Reform

Act (FOOGLRA) and underlying regulations. See 30 U.S.C.A. 195 (1)(a) and (b).

The Government submitted no proof of any multi-party agreement, no proof of any

specific laws that were targeted, and no proof that DeChristopher had any knowledge

of any of or intent to defeat or circumvent the specific laws in FOOGLRA or its

underlying regulations. The evidentiary deficiencies were compounded by the

erroneous elements instruction, which constructively amended the indictment.

To sustain a conviction for Count 2 as it was charged in the indictment, the

Government was required to prove that DeChristopher willfully and knowingly made

a false and fraudulent representation when he signed the bidder registration form

certifying that he had a good faith intention to acquire an oil and gas lease when he

had no such intention. The bidder registration form did not certify that anyone had

an intention to place a bid, but simply indicated that if a bid were placed, it would be a

good faith bid, and if it were the high bid, it would obligate the bidder to pay for the



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lease (DA 406). Thus, in completing and signing the form, DeChristopher did not

make the requisite representation or certification charged in the indictment. The

elements instruction for Count 2 constructively amended the indictment.

The trial courts rulings prior to and during the trial violated DeChristophers

fundamental constitutional rights to defend against the serious criminal charges he

was facing. Had he been allowed to present his defense, DeChristopher would have

demonstrated that the federal government employees who prepared the auction were

violating the laws designed to bring integrity to the process of leasing our public lands.

By thwarting the auction, he was trying to stop them from breaking the laws and to

stop the harms flowing from the illegal auction. Even after the Government

presented evidence that BLM employees had spent six months complying with the

relevant laws in preparing for the auction, and that DeChristophers single-handed

foiling of the auction cost the national and Utah taxpayers millions of dollars, the

court disallowed all evidence concerning the true history of the auction and the

governmental nullification thereof, and the harms posed by the auction. Thus, the

jurors were left to deliberate with significantly misleading and distorted evidence to

the effect that in interfering with the auction, DeChristopher had seriously harmed

them and other taxpayers for no ostensible reason.

It is elementary constitutional law that people may not be punished for their

exercise of First Amendment rights. The trial court repeatedly recognized, with the



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agreement of the prosecution, that DeChristopher was prosecuted because he went to

the press and expressed his opinions after the alleged crimes. The court should have

dismissed the case. Instead, the court sent DeChristopher to prison expressly

because of his ongoing advocacy of his political beliefs.

All of the errors discussed herein are obvious, indisputable, and

outcome-determinative. This Court should reverse the convictions and

sentence, and remand for dismissal of the charges.

ARGUMENTS

I. THE EVIDENCE WAS LEGALLY INSUFFICIENT.

STANDARD OF REVIEW

In reviewing the sufficiency of the evidence to sustain a jury verdict in a

criminal case, the Court reviews the evidence de novo, views the evidence and draws

the inferences in the light most favorable to the verdict, and will affirm if a reasonable

jury could have found the verdict beyond a reasonable doubt. See, e.g., United

States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007).

DISCUSSION

A. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN COUNT 1.

The Government is required by the Fifth, Sixth and Fourteenth Amendments to



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prove to the unanimous satisfaction of the jury all elements of crimes charged beyond

a reasonable doubt, including those elements that include legal questions. United

States v. Gaudin, 515 U.S. 506, 510-515 (1995).

It is the province of Congress to define crimes, see, e.g., Weems v. United States,

217 U.S. 349, 384 (1910), and due process requires Congress to do so in terms that are

clear so that the public has notice as to what conduct is lawful and what conduct is

punishable, and so that courts, juries, prosecutors, and police officers are not left with

improper discretion in the enforcement of the laws, e.g., Kolender v. Lawson, 461

U.S. 352, 357 (1983). Consistent with these precepts and the doctrine of separation

of government powers, our courts interpret statutes in accordance with their plain

language. See Caminetti v. United States, 242 U.S. 470, 485 (1917). Courts

interpret statutes so as to give effect to each term enacted by Congress. See e.g.,

Whiteis v. Yamaha Intern. Corp., 531 F.2d 968, 973 (10 th Cir. 1976).

The Government charged DeChristopher in Count 1 with one violation of 30

U.S.C.A. 195(a)(1) and (b). This statute makes it a crime for someone knowingly

(1) to organize or participate in any scheme, arrangement, plan, or agreement to

circumvent or defeat the provisions of this chapter [3A of Title 30] or its

implementing regulations[.]8 Congress enacted this subsection of the Federal

8 It does not appear that the statute has ever been prosecuted before. Nordoes it appear that any other statute in the United States Code requires thegovernment to prove that the defendant sought to defeat or circumvent a body of law.



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Onshore Oil and Gas Leasing Reform Act of 1987 to target group activity in its effort

to correct the pervasive abuse, mismanagement and fraud that were occurring under

the prior oil and gas leasing laws.9

DeChristophers actions were not decided on or performed in conjunction with

anyone else, and did not resemble in any way the types of fraud that prompted

Congress to pass the Federal Onshore Oil and Gas Leasing Reform Act of 1987.10

9 See Sansonetti and Murray, A Primer on the Federal Onshore Oil and GasLeasing Reform Act of 1987 and its Regulations, 25 Land and Water L. Rev. 375,

passim(1990) (detailing the history of the Mineral Leasing Act and amendments,explaining that 1987 Reform Act was enacted to correct mismanagement, fraud,abuse and lack of environmental protection in prior system) and at 414 andaccompanying notes (First, the section declares it unlawful to organize or participatein any sort of group activity to get around the provisions of the [Mineral Leasing

Act].).

10The problems with the pre-existing Mineral Leasing Act and the types of fraud

that prompted Congress to pass FOOGLRA are discussed in A Guide to the FederalOnshore Oil and Gas Leasing Reform Act of 1987, written by John F. Shepherd and

Jeanine Feriancek and published by the Natural Resources, Energy, andEnvironmental Law Section of the American Bar Association. Prior to the adoptionof FOOGLRA, lands with known geologic structures of a producing oil and gasfield or KGS were leased to the highest qualified bidders who submitted sealedbids, whereas all other lands (approximately 95% of all lands leased) were leasednoncompetitively to those who applied first for the leases and paid a small fee.However, people misbehaved in seeking the inexpensive and noncompetitive leases

when they became available, breaching the peace and bribing BLM employees. Id. at1-2. Therefore, the BLM resorted to a lottery for the non-competitive leases. Id. at2. Four problems developed under this system. The Secretary of the Interior wascriticized for lack of attention to environmental concerns. People complained thatpublic resources were being sold for prices far below the market value, and profits

were being made by speculators and oil companies, rather than the public. TheBLM and oil companies were frustrated by the time spent resolving disputes over



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While DeChristopher acknowledged to Agent Love that he knew it was a crime to

make fraudulent bids (DA 577), he made no fraudulent bids under the terms of the

Act, which would require proof of obtaining or seeking to obtain money or

property.11 Nor was he charged with having made fraudulent bids under the Act.

The statutory language of the offense DeChristopher was charged with and

convicted of describes an anticipatory or inchoate offense similar to conspiracy, the

gravamen of which is multiple people consorting to evade the laws governing the

auction process. See id.12

The terms organize and participate refer to group or

BLM designations of lands within KGS, which were subject to competitive bidding.Finally, the noncompetitive lottery was fraud-ridden. Id. at 4. Oil companies

would hire straw men to participate in lotteries to improve their chances ofwinning. Listing services would defraud people by exaggerating the value of theleases or the chances of winning the lottery. Forty acre merchants would divide theparcels into forty acre lots and then sell them to unwitting purchasers for more moneythan they were worth. Id.

11 Subsection (a)(2) of 30 U.S.C.A. 195 provides:

(a) ViolationsIt shall be unlawful for any person:.

2) to seek to obtain or to obtain any money or property by means of falsestatements of material facts or by failing to state material facts concerning:

(A) the value of any lease or portion thereof issued or to be issued under

this chapter;(B) the availability of any land for leasing under this chapter;(C) the ability of any person to obtain leases under this chapter; or(D) the provisions of this chapter and its implementing regulations.

12 SeeSansonetti and Murray, A Primer on the Federal Onshore Oil and GasLeasing Reform Act of 1987 and its Regulations, 25 Land and Water L. Rev. 375 at



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shared activity.13 The terms organize and participate would be superfluous if

Congress had intended for individual liability for individual intentions to violate the

law.14 These statutory terms may not be treated as surplusage by the courts. See

Whiteis, supra.

There was no evidence presented or argument made that DeChristopher

participated, organized, or acted jointly or in concert with any other person in a

scheme, arrangement, plan or agreement to defeat any law. No one else was charged

or implicated as a co-conspirator. Rather, the evidence, summarized above, showed

that he acted alone and quite impetuously. While the jurors were not so informed,

his motive in doing so was to stop the federal government employees from breaking

the law.

The plain language of the charging statute requires proof that DeChristopher

414 and accompanying notes (First, the section declares it unlawful to organize orparticipate in any sort of group activity to get around the provisions of the [MineralLeasing Act].).

13 Cf. e.g., H.J. Inc. v. Northwestern Bell Telephone Company, 492 U.S 229,244-45 (1989) (recognizing that when Congress wished to require proof of groupactivity in the Organized Crime Control Act, rather than sole criminal liability, it usedterms such as organize and participate); United States v. Tejada-Beltran, 50 F.3d 105,113 (1st Cir. 1995) (an organizer is at bottom a person who forms diverse elements

into a whole consisting of interdependent, coordinated parts, geared for concertedaction, see, e.g., The Random House Dictionary of the English Language1365 (2d ed. 1987)).

14 Had Congress wished to impose individual liability, it could have done so byindicating it is a crime for a person to scheme, arrange or plan to circumvent or defeatthe laws.



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and at least one other person shared the goal to circumvent or defeat the provisions

of this chapter [3A of Title 30] or its implementing regulations. 30 U.S.C.A.

195(a)(1) and (b) (emphasis added). Thus, the Government should have identified at

least two provisions of law that DeChristopher and at least one other person sought to

circumvent or defeat. See id. There was no evidence presented to the jurors

identifying, quoting or referring to any particular provisions of chapter 3A of Title 30

or the implementing regulations that were supposedly targeted by DeChristopher and

at least one other person.15

The evidence presented at trial regarding these laws was

Kent Hoffmans general testimony that was apparently designed to show the jurors

how beneficial the auctions are and how much money DeChristophers actions had

cost the taxpayers,16 and Terry Catlins testimony that FOOGLRA and the Mineral

Leasing Act authorized the BLM to put on the auctions (DA 193).

There was no evidence presented that DeChristopher was aware of any of the

provisions of chapter 3A of Title 30 or the implementing regulations, let alone that he

15The relevant chapter, Chapter 3A of Title 30, 30 U.S.C.A. 181 through287, and the relevant regulations, 43 CFR 3120, are included in the attachments tothis brief.

16 He testified that the BLM is mandated to manage oil and gas leasing and hold

quarterly auctions, because in 1920, Congress passed Mineral Leasing Act, latermodified in 1987 under Federal Onshore Oil and Gas Lease Reform Act, in order tomake lands available for development of oil and gas (DA 634, 636, 723-24). Heexplained that the benefits of the law are vitally important for providing energy anddevelopment of natural resources for the public good, and explained the revenuestreams flowing from the leases (DA 634-35).



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and someone else organized or participated in a scheme, arrangement, plan and

agreement designed to defeat or circumvent two or more of these provisions of law.

The uncontroverted evidence was that DeChristopher had not read the statutes or

public laws revolving around the auctions, and did not know how the auction process

functioned when he came to the BLM that day (DA 804-05). Thus, the evidence is

legally insufficient to establish the elements defined by Congress of the offense

charged in Count 1.

B. THE ELEMENTS INSTRUCTION FOR COUNT 1 WASLEGALLY INCORRECT.

The elements of crimes, which by virtue of due process must be proved beyond

a reasonable doubt, are those defined by Congress in the code. See United States v.

Zuniga-Soto, 527 F.3d 1110, 1118 (10th Cir. 2008). Elements of crimes must be

accurately set forth in the jury instructions. See, e.g., United States v. Serawop, 410

F.3d 656, 667 (10th Cir. 2005). Elements do not differ on the basis of the factual

circumstances of cases, but instead are the same basic components that must be

proved in any case charging the offense in order to obtain a conviction. See

Zuniga-Soto.

The court gave the jurors an elements instruction that misstated the elements

of Count 1, stating:

The defendant is charged in Count 1 with a violation of the Federalonshore Oil and Gas Leasing Reform Act (the Act) by interfering with thecompetitive bidding process of the December 19, 2008 oil and gas lease



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auction. To find the defendant guilty of this offense you must be convincedthat the United States has proved each of the following beyond a reasonabledoubt:

First, the defendant knowingly organized or participated in a scheme orplan; and

Second, the scheme or plan was intended to circumvent or defeat thecompetitive bidding process of the sale of federal oil and gas leases.

Knowingly means that the action was done voluntarily andintentionally and not because of mistake or accident.

(DA 371). The second element bears no resemblance to the language enacted by

Congress in 30 U.S.C. 195 (a)(1) and (b), and would not be charged in every case

alleging a violation of 30 U.S.C. 195(a) (1) and (b). This error was prejudicial,

particularly given the lack of evidence to support the statutory elements. See, e.g.,

Zuniga-Soto and Serawop, supra.

The Fifth and Sixth Amendments are properly interpreted as barring

constructive amendment of indictments, which occurs when the jury instructions

and/or evidence broadens the bases of a conviction beyond the notice provided in

the indictment. See, e.g., United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th

Cir. 2002). The indictment alleged that DeChristopher

did organize and participate in a scheme, arrangement, plan, and agreement todefeat the provisions of the Federal Oil and Gas Leasing Reform act, and itsimplementing regulations by knowingly interfering with the competitivebidding process of the sale of federal oil and gas leases.

(DA 32-34) (Emphasis added). Thus, the notice provided by grand jury very clearly

envisioned DeChristopher organizing and participating in a scheme and arrangement

and plan and agreement, and thus envisioned him acting in concert with others, as it is



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generally not possible to organize and participate in an agreement with oneself. The

notice provided by the grand jury very clearly envisioned that the scheme,

arrangement, plan and agreement were designed to defeat the provisions of the

Federal Oil and Gas Leasing Reform act, and its implementing regulations. The

elements instruction stated a different and nonexistent offense than was charged in

the indictment, and broadened the circumstances in which a conviction could enter,

by stating different and fewer elements than were alleged in the indictment. The

instruction given only required the Government to prove that DeChristopher

knowingly organized or participated in a scheme or plan, and that the scheme or

plan was intended to circumvent or defeat the competitive bidding process of the

sale of federal oil and gas leases. (DA 371).

Count 1 of the indictment specified that as part of the scheme, DeChristopher

attended the auction, represented himself to be a bona fidebidder when he was not,

completed a bidder registration form certifying his good faith intention to acquire an

oil and gas lease on the lands, and bid on and purchased oil and gas leases for which

he could not and did not intend to pay (DA 32-40). These allegations were not

included in the elements instruction (DA 371). These omitted portions of the

indictment were largely unsupported by the evidence. The was no evidence that

DeChristopher represented himself to be a bona fide bidder, and as is detailed in

subpoint C, infra, the bidder registration form he signed did not certify his good faith



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intention to acquire any oil and gas lease. By omitting the grand jurys allegations

from the elements instruction, the government prejudiced DeChristopher by

constructively amending the indictment. But see Hien Van Tieu, supra.

C. THE EVIDENCE WAS LEGALLY INSUFFICIENT TOSUSTAIN COUNT 2.

18 U.S.C.A. 1001 provides in relevant part:

(a) Except as otherwise provided in this section, whoever, in any matter within

the jurisdiction of the executive, legislative, or judicial branch of theGovernment of the United States, knowingly and willfully(1) falsifies, conceals, or covers up by any trick, scheme, or device a materialfact;(2) makes any materially false, fictitious, or fraudulent statement orrepresentation; or(3) makes or uses any false writing or document knowing the same to containany materially false, fictitious, or fraudulent statement or entry;shall be fined under this title, imprisoned not more than 5 years or, if theoffense involves international or domestic terrorism (as defined in section

2331), imprisoned not more than 8 years, or both. If the matter relates to anoffense under chapter 109A, 109B, 110, or 117, or section 1591, then the termof imprisonment imposed under this section shall be not more than 8 years....

This Court recognizes these elements of the offense:

(1) the defendant made a statement; (2) that was false and the defendant knewit was false; (3) the statement was made knowingly and willfully; (4) thestatement was made within the jurisdiction of a federal department or agency;

and (5) the statement was material.

United States v. Finn, 375 F.3d 1033, 1037 (10 th Cir. 2004).

The second count of the indictment alleged that in a matter within the



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jurisdiction of the BLM, DeChristopher

did knowingly and willfully make a false and fraudulent material representation inthat Defendant completed and signed a Bidder Registration Form, thatcertified Defendant had a good faith intention to acquire an oil and gas lease onlands offered for auction by the United States, when in fact Defendant had nointention of acquiring such lease.

(DA 34). The governments theory of the case was echoed in the opening statement

of the prosecutor, who quoted the language of the indictment (DA 486-87), and then

asserted that by signing the form, DeChristopher certified he was a bona fide bidder

with a good faith intention of acquiring leases at the auction. (DA 490). The

elements instruction similarly required the jury to find:

First, the defendant made a false statement or representation to thegovernment when he completed and signed a Bidder Registration form andcertified that he had a good faith intention to acquire an oil and gas lease onlands offered for auction by the United States;

Second, the defendant made the statement knowing it was false;Third, the defendant made the statement willfully, that is deliberately,

voluntarily and intentionally;Fourth, the statement was made in a matter within the jurisdiction of the

executive branch of the United States Government (Bureau of LandManagement, Department of the Interior); and

Fifth, the statement was material to the Bureau of Land Management,Department of the Interior.

A statement is material if it has a natural tendency to influence or iscapable of influencing a decision of an agency of the United StatesGovernment.

(DA 372).

By reviewing the bidder registration form, the Court may readily confirm the

determinative deficiency in the evidence. The bidder registration form does not certify



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that any bidder has any intention of bidding, it simply reflects that if a bid is

submitted, it will be a good faith bid, and that if it is the high bid, it will obligate the

bidder to pay for the lease. See id. The form provides in full:

BIDDER REGISTRATION FORMDECEMBER 19, 2008

COMPETITIVE OIL AND GAS LEASE SALE

By completing this form, I certify that the undersigned, or the principal partywhom the undersigned is acting on behalf of, is in compliance with theapplicable regulations and leasing authorities governing a bid and subsequentlease.

I certify that any bid submitted by the undersigned or on behalf of the principalparty is a good faith intention by the undersigned or the principal party toacquire an oil and gas lease on the offered lands. Further, I acknowledge thatif a bid is declared the high bid, it will constitute a legally binding commitmentto execute BLM Form 300-2 and to accept the lease. Additionally, if a bid isdeclared the high bid, the undersigned or the principal party will pay to theBureau of Land Management by the close of official business hours on the dayof the auction, or such other time as may be specified by the authorized officer,an amount at least equal to minimum monies owed the day of sale for that bid,

as set out in the applicable regulations, Further, the undersigned or theprincipal party acknowledge that these monies are due to the Bureau of LandManagement, whether or not a lease is subsequently issued as a result of the

winning bid.

It is a crime under 18 U.S.C. 1001 and 43 U.S.C. 1212 for any person toknowingly and willfully make any false, fictitious or fraudulent statements orrepresentations as to any matter within its jurisdiction. [sic]17

17

The current enhanced Bidder Registration Form has apparently beenamended to correct the form at issue here. It provides, in relevant part, It is acrime under 18 U.S.C. 1001 and 43 U.S.C. 1212 for any person to knowingly and

willfully make any false, fictitious or fraudulent statement or representation on thisform, on BLM Form 300-2 or on any other written statement on any public landmatter. Seehttp://www.blm.gov/pgdata/etc/medialib/blm/nv/minerals/oil___gas.Par.53020.Fi



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A separate form is required for each company or individual you arerepresenting.

Please fill in the company/individual name and address as it will appear on theissued lease. We will send a copy of the lease and billing notices to the nameand address as shown below. (NOTE: Please use the same lessee name andaddress information on BLM Form 3000-2.)

____________________Bidder Number (leave blank)

Lessee Name: __________________Mailing Address: ________________

City: _______________State: ____________________ Zip Code ________Bidder Name: _____________________ Phone number:

____________________Relationship to Lessee: _____________________

______________________ __________________Signature Date

(DA 406).

DeChristopher made no untrue statement in completing or signing the form.

He was qualified to bid.18 The form he signed did not certify that he intended to place

le.dat/bidder_registration_form.pdf.

18As official BLM testimony confirmed, anyone is allowed to bid at the

auctions, regardless of their involvement in the oil and gas industry (DA 524). 43 CFR3102.1 provides:

3102.1 Who may hold leases.

Leases or interests therein may be acquired and held only by citizens of theUnited States; associations (including partnerships and trusts) of such citizens;



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any bids or acquire a lease, as the indictment and elements instruction required.

Rather, it indicated that any bid he submitted would be a good faith bid, and that if it

were the high bid, it would obligate him to pay for the lease. As detailed in the

statement of facts, at the time DeChristopher completed and signed the form, he had

no intention of actually bidding in the auction; he misperceived that posing as a

bidder was his only means of entering the auction (DA 805-06). It was some twenty

minutes after the auction started that he decided to participate in the bidding (DA

416, 586).

Because the Government failed to submit proof to the jury that DeChristopher

certified a good faith intention to acquire a lease when he signed the form, and

because the plain language of the form itself disproved Count 2, the evidence is legally

insufficient.

D. THE CONSTRUCTIVE AMENDMENT OF THEINDICTMENT INDEPENDENTLY REQUIRES REVERSALOF COUNT 2.

By comparing the elements instruction with the indictment, the Court will note

the constructive amendment of the indictment with regard to Count 2. The grand

jury gave notice of its charge that DeChristopher made a statement that was both false

and fraudulent (DA 34), but the elements instruction permitted a conviction in

corporations organized under the laws of the United States or of any State orTerritory thereof; and municipalities.



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broader circumstances, with proof of falsity alone (DA 372). Particularly as

DeChristopher harbored no intent to defraud at the time that he signed the form, the

constructive amendment of the indictment is an independent basis for reversal of the

conviction underlying Count 2. See, e.g., United States v. Hien Van Tieu, 279 F.3d

917, 921 (10th Cir. 2002).

The insufficiency of the evidence bars a retrial under the Double Jeopardy

Clause of the Fifth Amendment. E.g. McDaniel v. Brown, 130 S.Ct. 665, 672 (2010).

Accordingly, the Court should remand for entry of a judgment of acquittal on Counts

1 and 2. The erroneous elements instructions and constructive amendments of the

indictment require reversal of both counts in any event. See, e.g., Gaudin,

Zuniga-Soto, and Hien Van Tieu, supra.

II. THE VIOLATION OF DECHRISTOPHERS CONSTITUTIONALRIGHTS TO PRESENT HIS DEFENSE REQUIRES REVERSALOF HIS CONVICTIONS.

STANDARDS OF REVIEW

When defendants challenge rulings under the Confrontation Clause and

Federal Constitution, the Court will reverse convictions unless the Government

proves any errors harmless beyond a reasonable doubt. See United States v. Joe, 8

F.3d 1488, 1497 (10th Cir. 1993). Ordinary evidentiary rulings are reviewed for an

abuse of discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).



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In assessing whether a defendant had sufficient evidence to present a necessity

defense to the jury, the Court reviews all evidence in the light most favorable to the

defendant. United States v. Butler, 485 F.3d 569, 571-72 (10th Cir. 2007). A district

court abuses its discretion in denying the defense if its decision results in a manifestly

unreasonable judgment, is capricious, arbitrary, or whimsical. See United States v.

Patton, 451 F.3d 615, 637 (10th Cir. 2006); United States v. Weidner, 437 F.3d 1023,

1042 (10th Cir. 2006).

DISCUSSION

Before sentencing DeChristopher to prison, the trial court remarked that

DeChristophers case had propagated so much misinformation, and identified as

one of the biggest major myths the notion that DeChristopher had to do what he

did in order to prevent the auction from proceeding, or to prevent the consequences

of the auction from occurring (DA 938). The court further commented that [a]ny

notion that what Mr. DeChristopher did caused that auction to be suspended or

eliminated or the leases from it withdrawn has never been shown to be the case.

Ever. (DA 955).

Unfortunately, the jurors who decided DeChristophers fate were never given

the opportunity to assess his intent in doing what he did. Nor were they given the

truth about the many different corrective agents and forces that came together to



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nullify the auction and prevent the harms it would have caused had it proceeded

unchecked (DA 953-57). Rather, the jurors were left to deliberate on the basis of the

uncorrected myths propagated by the Government witnesses and court rulings.

They were given to believe that, consistent with the BLMs charge as steward

of the public lands and resources, and the multiple uses thereof (DA 633), and in

compliance with its meticulous record keeping, auction screening, and quality

assurance practices (DA 495, 513, 637), BLM workers spent six months,

approximately $140,000 of their tax-payer funded time, to comply with the

environmental, endangered species, historic preservation and other protective laws in

preparing for the December auction (DA 513, 652). The jurors were never

accurately informed of the many laws the BLM disregarded and violated, see

Statement of Facts, supra.

Rather than learning of the environmental, archeological, historical, and other

dangers posed by the illegally comprised auction, see e.g. id., the jurors were told that

the auctions were mandated by the Mineral Leasing Act, as it serves the public good

when natural resources are developed and energy is provided (DA 635).

The jurors were given the incorrect impression that as a result of

DeChristophers foiling of the auction, the national treasury and Utah economy were

deprived of the moneys that otherwise would have been paid for the leases he won

(worth approximately 1.8 million dollars, roughly 24% of the proceeds from that



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auction), and for the unidentified leases the other bidders reneged on. The jurors

were not told how many people backed out of the leases, and were not told of

Secretary Salazars nullification of the leases. They were told that the total amount

of money bid in the auction was $7,473,768.60 (DA 408-415, 640). They were also

led to believe that DeChristophers foiling of the auction caused the loss of royalties

that would have been paid by the oil companies after they began drilling for oil and

gas on the parcels DeChristopher and the unspecified number of reneging bidders left

undeveloped (DA 635, 646, 654-656). They were told that of the many different

revenue streams flowing from the auction, fifty percent of the proceeds would have

gone to the State of Utah (DA 635).

The jurors were left with the impression that DeChristophers actionswere the

sole cause of the suspension of the lawful auction (DA 624, 650, 655-56), and were

told that real costs of the auction and other indirect costs to the taxpayers were fairly

attributed to DeChristopher because the BLM would have to reprocess the leases

through their system so they could be made available to all interested bidders (DA

655-56). The jurors never learned that reprocessing of the leases resulted from the

lawsuit filed by the Southern Utah Wilderness Alliance and the consequential

temporary restraining order issued by Judge Urbina, and Secretary Salazars decision

to withdraw the leases of 77 parcels. Nor did they learn of the Hayes report or other

government reports conceding improprieties in the auction, the formulation of the



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interdisciplinary team, or the ultimate decision that most of the parcels were not

appropriate for leasing. See id.

The jurors were misled to believe that the leases up for auction might not

actually issue for years, as they were all under protest (DA 403, 515). They were

never informed that as a matter of federal law, leases are to issue within sixty days of

payment by the lessees, regardless of the existence of any protest.19 They were not

informed that in the actions leading up to the December sale, the BLM agreed to

delay issuance of the leases only up to thirty days after the sale, see DA 275 and

Impact Energy Resources v. Salazar, 2010 WL 3489544 (D. Ut 2010).

Thus, it undoubtedly appeared to the jurors that DeChristophers actions were

very harmful and expensive to the taxpayers, very disruptive to government

functioning, and completely unnecessary.

A. THE TRIAL COURT VIOLATED DECHRISTOPHERSCONSTITUTIONAL RIGHTS TO DEFEND HIMSELF ANDCONFRONT THE GOVERNMENTS CASE.

The court refused counsels efforts to address the true history of the auction

and to discuss DeChristophers full interview with Agent Love after he was taken

from the auction. The court ruled that such evidence was not relevant, as it did not

demonstrate that the auction was not an auction (DA 611-616).

19 See 30 U.S.C.A. 226(b)(1)(A); Hatch, BLM, Stop Dithering Over Oil andGas Leases: Why the Leases Must Be Issued in Sixty Days, 31 UTELR 461 (2011);accord Impact Energy Resources v. Salazar, 2010 WL 3489544.



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After the Government presented the testimony of Kent Hoffman, the BLM

employee in charge of oil, gas and mineral programs, to the effect that DeChristopher

had harmed the local economy and all taxpayers by foiling the auction that BLM

employees had spent six months to prepare in compliance with the environmental

laws (DA 495, 513, 633, 635, 645, 653, 654), defense counsel sought the Courts

permission to cross-examine Hoffman thoroughly and to introduce evidence to

correct the record (DA 656-660). The court initially recognized that the

Government had opened the door with Hoffmans testimony, and that in testifying

about the steps the BLM took prior to the auction, Hoffman implied that the steps

had been taken properly (DA-660-61). But then the court found that evidence

concerning irregularities involved in the auction was not relevant, as it did not prove

that the auction was not an auction (DA 661-62). The court ruled that to the extent

such evidence might be relevant, it would take too much time to present and consider,

and posed too much danger of confusing and misleading the jury, and would be

excluded under Federal Rule of Evidence 403 (DA 662-63, 665).

After a recess in the trial, the defense submitted a memorandum expressly

invoking DeChristophers rights to confrontation, due process and a fair trial and

asking the court to take judicial notice of and give the jurors documents concerning

the actual history of the auction (DA 285-356; Document 57). The court ruled that

evidence concerning the illegalities in the auction did not make the auction not an



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auction and thus was not relevant (DA 681, 684). The court ruled that it would be

too time consuming to address those issues, and noted that opinions differed as to the

legality of the auction (DA 684, 698). The court ruled that the defense could

introduce evidence bearing on DeChristophers intent, but forbade the introduction

of evidence concerning the illegalities involved in the auction because it would be too

time consuming and because the legality or illegality of the auction was subject to

dispute (DA 699-700). The court refused to take judicial notice of or provide the

jurors with the records concerning the illegalities in the auction, finding that they did

not render the auction not an auction, and did not bear on DeChristophers intent to

criminally interfere with the auction (DA 710). The court ruled that to the extent the

evidence of the BLMs conduct was relevant, it would be excluded, as it harbored too

great a risk of distracting and misleading the jury (DA 710, 712-13).

When trial counsel then began cross-examining Hoffman, he began discussing

the Federal Land Management and Policy Act, the law governing the BLMs

management of multiple resources for multiple uses, which required attention to

recreation, wild horses, the Endangered Species Act, and the Historic Preservation

Act, but the court would not permit inquiry into the BLMs actual performance under

these provisions of law (DA 721-723). Thus, the misimpression that the BLM

followed the laws in preparing for the auction was reiterated, rather than corrected, on

cross-examination. The court sustained the Governments objections when defense



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counsel tried to inquire of Hoffman concerning governmental reports on the auction

and analysis of the environmental impacts of the auction and its compliance with the

acts of law previously discussed, or whether the parcels would be put back up for

auction (DA 723, 736, 747). The court would not allow counsel to inquire regarding

a report reflecting that the BLM hired oil and gas company employees to process

drilling permits (DA 757). The court rejected DeChristophers proposed theory of

defense instructions (DA 400-401, 868-900).

In ruling against full and fair cross-examination of Hoffman and presentation

of the evidence concerning the illegalities involved in the auction and in rejecting the

instructions embodying DeChristophers theories of the defense, the trial court

misapplied the rules of evidence and violated DeChristophers constitutional rights to

defend against the criminal charges and confront his accusers.

The definition of relevant evidence is broad, encompassing evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence. Federal Rule of Evidence 401. Without learning of the BLMs

violation of the governing laws and regulations in preparing for the auction, the jurors

were left without the evidence necessary to the accurate assessment of

DeChristophers mens reaand defense to Count 1. His intention was not to defeat

the relevant laws and regulations by interfering with the auction, as the Government



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claimed. Rather, his intent was to effectuate the laws by stopping the BLM auction

so that its employees would be required to comply with the laws enacted to govern

such auctions and protect our national resources and environment.

The excluded evidence was relevant and essential to the jurors assessment of

the credibility of the Governments witnesses testimony as to the BLMs careful and

law-abiding preparation of the auction. Moreover, the jurors were misled to believe

that DeChristopher was the cause of millions of dollars of loss to the local and

national taxpayers (DA 408-15, 640), as they never learned that the legal deficiencies

in the auction led to its nullification by the government. Thus, in ruling the evidence

irrelevant, the court was clearly in error and abused its discretion.

Criminal defendants have numerous constitutional rights to present their

defenses. See, e.g., Crane v. Kentucky, 476 U.S. 683, 690 (1985). Particularly because

the Governments witnesses provided testimony that misled the jury to unfair hostility

toward DeChristopher, it was critical to effectuate the recognized purposes of the

constitutional right to confrontation.

Confrontation: (1) insures that the witness will give his statements underoath-thus impressing him with the seriousness of the matter andguarding against the lie by the possibility of a penalty for perjury; (2)forces the witness to submit to cross-examination, the greatest legal

engine ever invented for the discovery of truth; (3) permits the jury thatis to decide the defendant's fate to observe the demeanor of the witnessin making his statement, thus aiding the jury in assessing his credibility.

California v. Green, 399 U.S. 149, 158 (1970). Yet the court did not permit



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meaningful cross-examination of Hoffman or the other witnesses, or the

presentation of counter evidence.

The contents of DeChristophers original proffer (DA 41-282) and the

materials included with his mid-trial memorandum asserting his constitutional rights

(DA 285-356) demonstrate the seriousness and legitimacy of DeChristophers belief

that the Government was not in compliance with the laws prior to and during the

auction. This evidence would have supported his primary defense as to the first

count. With these materials, DeChristopher sought to show the jurors the truth about

his trying to stop the Government employees breaking of the laws designed to

protect everyones interests in land management, in environmental safety and public

health, and in preservation of historical and archeological artifacts. The documents for

which DeChristopher sought judicial notice are all reports issued by the federal

government and would have been proper subject matter for purposes of judicial

notice,20 and would have been admissible as admissions of a party opponent under

Federal Rule of Evidence 801 (d)(2).

20 See, e.g., St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp, 605 F.2d

1169, 1172 (10th

Cir. 1979) ([I]t has been held that federal courts, in appropriatecircumstances, may take notice of proceedings in other courts, both within andwithout the federal judicial system, if those proceedings have a direct relation tomatters at issue.); Pueblo v. Sandia v. United States, 50 F.3d 856, 862 n.6 (10 th Cir.1995) (appellate court may take judicial notice of government reports andpublications).



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The evidence DeChristopher sought to present was essential to his

confrontation of the governments witnesses and case and defense, because it

illuminated why he did what he did to stop government corruption and

law-breaking in the auction process, rather than to defeat or circumvent the laws

designed to bring integrity to oil and gas lease auctions. The evidence was essential

to his rights to confront and defend, because it would have corrected the distorted

picture the jurors were otherwise left with of DeChristopher blithely wasting

millions of taxpayer dollars and six months of government employees efforts to

comply with environmental and other laws designed to serve the publics interest (DA

408-415, 640).

The trial courts concern the jury might be misled or confused by evidence

concerning the illegality of the auction deprived the jury of the opportunity to fulfill

its constitutional roles. In this country, jurors are both expected and needed to resolve

factual issues, to evaluate intent, to act as a conscience of the community, and to

protect individual citizens from abuse of prosecutorial authority. See, e.g. Duncan v.

Louisiana, 391 U.S. 145, 156 (1968); Sandstrom v. Montana, 442 U.S. 510, 523 (1979).

Our Federal Constitution is designed to prevent the exercise of unchecked power in

government, and requires community participation in the jury process of making the

decisions that influence the lives and liberties of our citizens. See id. These jury roles

are of the highest importance in criminal cases, and are constitutionally protected and



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guaranteed to the criminal defendant. Id. The information concerning the illegality of

the auction is not difficult to comprehend. The attorneys were all capable of

presenting the information, much of which was conceded in writing by government

leaders, in a fashion that the jury could understand. Cf. Duncan, 391 U.S. at 157

(recognizing that juries generally do understand evidence and reach correct

conclusions, and that when their conclusions differ from judges, this is usually

because the juries are serving their constitutional functions).

The courts concern that too much time would be required to present the

evidence concerning the illegalities involved in the auction failed to appreciate the

relative importance of time and justice in a criminal case. Tim DeChristopher faces a

sentence of twenty-four months in federal prison, to be followed by three years of

supervised release, and a lifetime as a federally-convicted felon (DA 966). The court

docket confirms that, including the time spent on oral arguments and recesses, his

jurors spent fewer than eleven hours listening to presentation of evidence before

deciding his fate (DA 7-8). Surely the jurors could have afforded to devote the time

required to consider the relevant facts from the defense that were essential to their

reaching a reliable verdict.21

21 The language employed by our Supreme Court in assessing then-President Nixonsassertion of privilege in an effort to avoid a special prosecutors subpoena rings truehere:

[O]ur historic commitment to the rule of lawis nowhere more profoundly



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The court had the ability to maintain control over the proceedings, and could

have protected the jurors from the presentation of excessive evidence, to the degree

that DeChristophers lawyers and the prosecutors would not independently have

recognized the persuasive nature of concise presentation of evidence. See, e.g. United

States v. Vaughn, 370 F.3d 1049, 1053 (10th Cir. 2004) (recognizing courts authority

to bar cumulative cross-examination). Particularly given the documentation

produced by the BLM administration conceding improprieties in the December 2008

auction (DA 296-356), DeChristopher could have presented his defense through

cross-examination of the government witnesses, DeChristophers testimony, the

courts taking judicial notice of some or all of the government reports, and/or

through the testimony of a reasonable number of expert witnesses in a reasonable

amount of time.

The courts repeated rulings that DeChristopher could not defend himself or

cross-examine the government witnesses and confront the governments case against

manifest than in our view that the twofold aim (of criminal justice) is that guiltshall not escape or innocence suffer. We have elected to employ an adversarysystem of criminal justice in which the parties contest all issues before a court oflaw. The need to develop all relevant facts in the adversary system is both

fundamental and comprehensive. The ends of criminal justice would bedefeated if judgments were to be founded on a partial or speculativepresentation of the facts. The very integrity of the judicial system and publicconfidence in the system depend on full disclosure of all the facts, within theframework of the rules of evidence.

United States v. Nixon, 418 U.S. 683, 708-09 (1974).



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him unless he could convince the court that the auction was not an auction had no

basis in the law or in reason. This repeated ruling created insurmountable barriers

between DeChristopher and his constitutional rights, and between the jurors and the

truth.

The Governments case that DeChristopher single-handedly foiled the lawful

auction for no legitimate reason, and thereby significantly financially harmed the

jurors and all other citizens of Utah and the nation, was unfairly distorted and

prejudicial to DeChristopher. As is detailed above, the evidence was legally

insufficient to sustain both counts. On this record, the Government cannot meet its

burden to prove the constitutional errors harmless beyond a reasonable doubt. Given

the evidentiary deficiencies in the Governments case, assuming arguendo that the

errors discussed above were merely evidentiary, rather than constitutional, there is a

reasonable likelihood of a different result in their absence, and thus, reversal is

required in any event.

B. THE COURT ABUSED ITS DISCRETION IN BLOCKING THENECESSITY DEFENSE PRIOR TO TRIAL.

Criminal defendants have numerous related constitutional rights to defend

against criminal charges, including the right to testify in their own behalf. See, e.g.,

Crane v. Kentucky, 476 U.S. 683, 690 (1985); Rock v. Arkansas, 483 U.S. 44 (1987).

Criminal defendants are entitled to have the jury adequately instructed by the court on

their defenses, provided that the evidence, when viewed through the eyes of one



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reasonable juror, support their defenses. See, e.g., United States v. Apperson, 441

F.3d 1162, 1204 (10th Cir. 2006). In assessing their entitlement to defenses, all

evidence is to be viewed in the defendants favor. United States v. Butler, 485 F.3d

569, 571-72 (10th Cir. 2007).

The choice of evils or necessity defense generally includes four elements:

(1) [the defendant] was faced with a choice of evils and chose the lesser evil; (2)[the defendant] acted to prevent imminent harm; (3) [the defendant] reasonablyanticipated a direct causal relationship between [his] conduct and the harm to beaverted; and (4) [the defendant] had no legal alternatives to violating the law.

United States v. Turner, 44 F.3d 900, 902 (10th Cir. 1995).

1. DECHRISTOPHER CHOSE THE LESSER EVIL.

In blocking DeChristophers presentation of the defense, the court first ruled

that DeChristopher did not face a definite or cognizable choice of two evils, as

there was insufficient proof that a harm would occur. This opinion appears to have

been based on the courts perception that because the leases were all under protest,

they were unlikely to issue immediately, and thus, the consequences were not certain

to occur (DA 14, 18-20, document 31, page 2, 6-9). While the courts decision

asserted that there were at least 1,600 protests filed prior to the auction, at least one

for ea

tim dechristopher appeal

Documents