Tim DeChristopher Appeal

Appellate Case: 11-4151
Document: 01018748052
Date Filed: 11/18/2011
Page: 1
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 District Court for the District of Utah, the Honorable Dee Benson, Judge, presiding. OPENING BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED RONALD J. YENGICH (3580)) YENGICH RICH & XAIZ 175 EAST 400 SOUTH, SUITE 400 SALT LAKE CITY, UTAH 84114 TELEPHONE: (801)355-0320 ELIZABETH HUNT (5292) ELIZABETH HUNT LLC 569 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 A SALT LAKE CITY, UTAH 84102 TELEPHONE: (801)582-0949
Document: 01018748052
Page: 2
TABLE OF CONTENTS JURISDICTIONAL STATEMENT ...1 ...1
ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE ...2
STATEMENT OF RELEVANT FACTS SUMMARY OF ARGUMENTS. . . 13 ARGUMENTS . . .15
...3
I. THE EVIDENCE WAS LEGALLY INSUFFICIENT. . . STANDARD OF REVIEW DISCUSSION A. B. C. D. . . . 16 . . . 15
15
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN COUNT 1. . . 16 THE ELEMENTS INSTRUCTION FOR COUNT 1 WAS LEGALLY INCORRECT. . . 21 THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN COUNT 2. . . 24
THE CONSTRUCTIVE AMENDMENT OF THE INDICTMENT INDEPENDENTLY REQUIRES REVERSAL OF COUNT 2. . . 28
II.
THE VIOLATION OF DECHRISTOPHERS CONSTITUTIONAL RIGHTS TO PRESENT HIS DEFENSE REQUIRES REVERSAL OF HIS CONVICTIONS. . . 29 . . . 29
STANDARDS OF REVIEW
Document: 01018748052
Page: 3
DISCUSSION A.
. . . 30 THE TRIAL COURT VIOLATED DECHRISTOPHERS CONSTITUTIONAL RIGHTS TO DEFEND HIMSELF AND CONFRONT THE GOVERNMENTS CASE. . . . 33 THE COURT ABUSED ITS DISCRETION IN BLOCKING THE NECESSITY DEFENSE PRIOR TO TRIAL. . . .42
B.
1. DECHRISTOPHER CHOSE THE LESSER EVIL. .42 2. DECHRISTOPHER ACTED TO PREVENT IMMINENT HARMS. . . .47 3. THERE WAS SUFFICIENT CAUSAL NEXUS BETWEEN THE HARMS TO BE AVERTED AND DECHRISTOPHERS CONDUCT. . . .49 4. DECHRISTOPHER HAD NO LEGAL ALTERNATIVES. . . .52 III. THE COURT AND PROSECUTION VIOLATED DECHRISTOPHERS FIRST, FIFTH AND FOURTEENTH AMENDMENT RIGHTS BY PROSECUTING AND IMPRISONING HIM FOR WHAT HE SAID. . . .55
STANDARDS OF REVIEW . . .55 DISCUSSION . . .56
IV. THE COURT SHOULD REACH THE MERITS OF ALL ISSUES RAISED. . . .63 CONCLUSION . . .64 . . .64
ii
ORAL ARGUMENT STATEMENT
Document: 01018748052
Page: 4
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
iii
Document: 01018748052
Page: 5
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). 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 . . .16
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
iv
Document: 01018748052
Page: 6
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 (10th 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 (10th Cir. 2006). . . . 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
v
42, 46,
Document: 01018748052
Page: 7
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 (10th 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 (10th Cir. 2002). . . .22, 24, 29 United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). United States v. Joe, 8 F.3d 1488, 1497 (10th 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 (10th 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
vi
. . .55
Document: 01018748052
Page: 8
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 (10th 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 AND RULES 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 Federal Rule Of Evidence 403. . .34
vii
Document: 01018748052
Page: 9
Federal Rule Of Evidence 801. . .39 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 Must Be Issued in Sixty Days, 31 UTELR 461 (2011); accord Impact Energy Resources v. Salazar, 2010 WL 3489544. . .33, 42, 49 Sansonetti and Murray, A Primer on the Federal Onshore Oil and Gas Leasing 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 the Natural Resources, Energy, and Environmental Law Section of the American Bar Association. . .17 STATEMENT OF RELATED CASES There are no related cases or prior appeals.
viii
Document: 01018748052
Page: 10
JURISDICTIONAL STATEMENT The district court had subject matter jurisdiction over this criminal case. 18 U.S.C. 3231. See
This Court has subject matter jurisdiction over DeChristophers See 28 U.S.C. 1291.
appeal from his criminal convictions.
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 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. The notice of appeal was
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. 867-68, 874-891. 2. Did the trial court violate DeChristophers constitutional rights to See DA 769-771,
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,
DeChristophers Appendix is referred to herein as DA, followed by the
Document: 01018748052
Page: 11
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. e.g., DA 22-25; 283-84, 449-78; docket entries 33, 34, 35, 37, 39, 40. See
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 fide bidder 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
2
Document: 01018748052
Page: 12
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). 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 The court fined him $10,000 (DA 30). DeChristopher appealed (document
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.
The trial court excluded much of the relevant evidence. statement of facts often cites to portions of DeChristophers proffers.
2
Hence, the
Document: 01018748052
Page: 13
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. 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 See, e.g.,
Document: 01018748052
Page: 14
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.4 The 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 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 BLM entered into a settlement agreement that was to have no precedential value acknowledging that Interior Secretarial Order 3226 was a law it was required to comply with in issuing leases under NEPA. The settlement followed a ruling from the court 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 that Interior Secretarial Order 3226 had the force and effect of law.
3
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 the likely irreversible leases (DA 210-212). The report of Congressman Raul Grijalva, published October 22, 2008, documented the BLMs avoiding NEPA, expediting oil and gas permits too fast for government archeologists and biologists to properly oversee and perform field inspections, permitting oil company-paid volunteers to process drilling permits, and harming the environment (DA 65-90).
4
Document: 01018748052
Page: 15
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).
Document: 01018748052
Page: 16
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 He later won a parcel worth
before he chose to re-enter the bidding (DA 562).
The 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).
5
Document: 01018748052
Page: 17
$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
Document: 01018748052
Page: 18
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 The record is unclear as to what occurred after the auction halted and Agent Love approached DeChristopher. Tina Brown testified that the BLM did not restart or reboot the auction (DA 623-24). Kent Hoffman testified inconsistently that he considered 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 restarted the auction (DA 677).
6
Document: 01018748052
Page: 19
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).
10
Document: 01018748052
Page: 20
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.
The 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.

7
11
Document: 01018748052
Page: 21
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
12
Document: 01018748052
Page: 22
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
13
Document: 01018748052
Page: 23
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
14
Document: 01018748052
Page: 24
agreement of the prosecution, that DeChristopher was prosecuted because he went to the press and expressed his opinions after the alleged crimes. dismissed the case. The court should have
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. States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007). See, e.g., United
DISCUSSION A. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN COUNT 1.
The Government is required by the Fifth, Sixth and Fourteenth Amendments to

15
Document: 01018748052
Page: 25
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 (10th 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
It does not appear that the statute has ever been prosecuted before. Nor does it appear that any other statute in the United States Code requires the government to prove that the defendant sought to defeat or circumvent a body of law.
8
16
Document: 01018748052
Page: 26
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
See Sansonetti and Murray, A Primer on the Federal Onshore Oil and Gas Leasing 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 and accompanying notes (First, the section declares it unlawful to organize or participate in any sort of group activity to get around the provisions of the [Mineral Leasing Act].).
9
The 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 Federal Onshore Oil and Gas Leasing Reform Act of 1987, written by John F. Shepherd and Jeanine Feriancek and published by the Natural Resources, Energy, and Environmental Law Section of the American Bar Association. Prior to the adoption of FOOGLRA, lands with known geologic structures of a producing oil and gas field or KGS were leased to the highest qualified bidders who submitted sealed bids, whereas all other lands (approximately 95% of all lands leased) were leased noncompetitively 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. at 1-2. Therefore, the BLM resorted to a lottery for the non-competitive leases. Id. at 2. Four problems developed under this system. The Secretary of the Interior was criticized for lack of attention to environmental concerns. People complained that public 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. The BLM and oil companies were frustrated by the time spent resolving disputes over
10
17
Document: 01018748052
Page: 27
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 of winning. Listing services would defraud people by exaggerating the value of the leases or the chances of winning the lottery. Forty acre merchants would divide the parcels into forty acre lots and then sell them to unwitting purchasers for more money than they were worth. Id.
11
Subsection (a)(2) of 30 U.S.C.A. 195 provides:
(a) Violations It shall be unlawful for any person: . 2) to seek to obtain or to obtain any money or property by means of false statements 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. See Sansonetti and Murray, A Primer on the Federal Onshore Oil and Gas Leasing Reform Act of 1987 and its Regulations, 25 Land and Water L. Rev. 375 at
12
18
Document: 01018748052
Page: 28
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. 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. or implicated as a co-conspirator. No one else was charged See
Rather, the evidence, summarized above, showed While the jurors were not so informed,
that he acted alone and quite impetuously.
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 or participate in any sort of group activity to get around the provisions of the [Mineral Leasing Act].). 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 group activity in the Organized Crime Control Act, rather than sole criminal liability, it used terms 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 concerted action, see, e.g., The Random House Dictionary of the English Language 1365 (2d ed. 1987)). Had Congress wished to impose individual liability, it could have done so by indicating it is a crime for a person to scheme, arrange or plan to circumvent or defeat the laws.
19
14 13
Document: 01018748052
Page: 29
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 The relevant chapter, Chapter 3A of Title 30, 30 U.S.C.A. 181 through 287, and the relevant regulations, 43 CFR 3120, are included in the attachments to this brief.
15
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, later modified in 1987 under Federal Onshore Oil and Gas Lease Reform Act, in order to make lands available for development of oil and gas (DA 634, 636, 723-24). He explained that the benefits of the law are vitally important for providing energy and development of natural resources for the public good, and explained the revenue streams flowing from the leases (DA 634-35).
16
20
Document: 01018748052
Page: 30
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 WAS LEGALLY 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. Zuniga-Soto, 527 F.3d 1110, 1118 (10th Cir. 2008). accurately set forth in the jury instructions. F.3d 656, 667 (10th Cir. 2005). See United States v.
Elements of crimes must be
See, e.g., United States v. Serawop, 410
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. 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 Federal onshore Oil and Gas Leasing Reform Act (the Act) by interfering with the competitive bidding process of the December 19, 2008 oil and gas lease
21
See
Document: 01018748052
Page: 31
auction. To find the defendant guilty of this offense you must be convinced that the United States has proved each of the following beyond a reasonable doubt: First, the defendant knowingly organized or participated in a scheme or plan; and Second, the scheme or plan was intended to circumvent or defeat the competitive bidding process of the sale of federal oil and gas leases. Knowingly means that the action was done voluntarily and intentionally 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 to defeat the provisions of the Federal Oil and Gas Leasing Reform act, and its implementing regulations by knowingly interfering with the competitive bidding 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
22
Document: 01018748052
Page: 32
generally not possible to organize and participate in an agreement with oneself. 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
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. 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 fide bidder 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). included in the elements instruction (DA 371). These allegations were not The
These omitted portions of the The was no evidence that
indictment were largely unsupported by the evidence.
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
23
Document: 01018748052
Page: 33
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 TO SUSTAIN 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 the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of 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 knew it was false; (3) the statement was made knowingly and willfully; (4) the statement 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 (10th Cir. 2004). The second count of the indictment alleged that in a matter within the
24
Document: 01018748052
Page: 34
jurisdiction of the BLM, DeChristopher did knowingly and willfully make a false and fraudulent material representation in that Defendant completed and signed a Bidder Registration Form, that certified Defendant had a good faith intention to acquire an oil and gas lease on lands offered for auction by the United States, when in fact Defendant had no intention 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). elements instruction similarly required the jury to find: First, the defendant made a false statement or representation to the government when he completed and signed a Bidder Registration form and certified that he had a good faith intention to acquire an oil and gas lease on lands 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 Land Management, 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 is capable of influencing a decision of an agency of the United States Government. (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
25
The
Document: 01018748052
Page: 35
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 FORM DECEMBER 19, 2008 COMPETITIVE OIL AND GAS LEASE SALE By completing this form, I certify that the undersigned, or the principal party whom the undersigned is acting on behalf of, is in compliance with the applicable regulations and leasing authorities governing a bid and subsequent lease. I certify that any bid submitted by the undersigned or on behalf of the principal party is a good faith intention by the undersigned or the principal party to acquire an oil and gas lease on the offered lands. Further, I acknowledge that if a bid is declared the high bid, it will constitute a legally binding commitment to execute BLM Form 300-2 and to accept the lease. Additionally, if a bid is declared the high bid, the undersigned or the principal party will pay to the Bureau of Land Management by the close of official business hours on the day of 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 the principal party acknowledge that these monies are due to the Bureau of Land Management, 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 to knowingly and willfully make any false, fictitious or fraudulent statements or representations as to any matter within its jurisdiction. [sic]17 The current enhanced Bidder Registration Form has apparently been amended to correct the form at issue here. It provides, in relevant part, It is a crime 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 this form, on BLM Form 300-2 or on any other written statement on any public land matter. See http://www.blm.gov/pgdata/etc/medialib/blm/nv/minerals/oil___gas.Par.53020.Fi
17
26
Document: 01018748052
Page: 36
A separate form is required for each company or individual you are representing. Please fill in the company/individual name and address as it will appear on the issued lease. We will send a copy of the lease and billing notices to the name and address as shown below. (NOTE: Please use the same lessee name and address 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 (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 __________________ Date
le.dat/bidder_registration_form.pdf. As 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 CFR 3102.1 provides:
18
3102.1 Who may hold leases. Leases or interests therein may be acquired and held only by citizens of the United States; associations (including partnerships and trusts) of such citizens;
27
Document: 01018748052
Page: 37
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 THE INDICTMENT INDEPENDENTLY REQUIRES REVERSAL OF 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 or Territory thereof; and municipalities.
28
Document: 01018748052
Page: 38
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. 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. Zuniga-Soto, and Hien Van Tieu, supra. II. THE VIOLATION OF DECHRISTOPHERS CONSTITUTIONAL RIGHTS TO PRESENT HIS DEFENSE REQUIRES REVERSAL OF HIS CONVICTIONS. See, e.g., Gaudin, See, e.g., United States v. Hien Van Tieu, 279 F.3d
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). abuse of discretion. Ordinary evidentiary rulings are reviewed for an
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).
29
Document: 01018748052
Page: 39
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
30
Document: 01018748052
Page: 40
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
31
Document: 01018748052
Page: 41
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 They were also
of money bid in the auction was $7,473,768.60 (DA 408-415, 640).
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 actions were 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

32
Document: 01018748052
Page: 42
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 DECHRISTOPHERS CONSTITUTIONAL RIGHTS TO DEFEND HIMSELF AND CONFRONT 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). See 30 U.S.C.A. 226(b)(1)(A); Hatch, BLM, Stop Dithering Over Oil and Gas Leases: Why the Leases Must Be Issued in Sixty Days, 31 UTELR 461 (2011); accord Impact Energy Resources v. Salazar, 2010 WL 3489544.
19
33
Document: 01018748052
Page: 43
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
34
Document: 01018748052
Page: 44
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
35
Document: 01018748052
Page: 45
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 rea and defense to Count 1. His intention was not to defeat
the relevant laws and regulations by interfering with the auction, as the Government
36
Document: 01018748052
Page: 46
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 under oath-thus impressing him with the seriousness of the matter and guarding 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 that is to decide the defendant's fate to observe the demeanor of the witness in 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
37
Document: 01018748052
Page: 47
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).
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 appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.); Pueblo v. Sandia v. United States, 50 F.3d 856, 862 n.6 (10th Cir. 1995) (appellate court may take judicial notice of government reports and publications).
20
38
Document: 01018748052
Page: 48
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
39
Document: 01018748052
Page: 49
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 Nixons assertion of privilege in an effort to avoid a special prosecutors subpoena rings true here: [O]ur historic commitment to the rule of lawis nowhere more profoundly
40
Document: 01018748052
Page: 50
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 guilt shall not escape or innocence suffer. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. United States v. Nixon, 418 U.S. 683, 708-09 (1974).
41
Document: 01018748052
Page: 51
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 On this record, the Government cannot meet its
insufficient to sustain both counts.
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 THE NECESSITY 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
42
Document: 01018748052
Page: 52
reasonable juror, support their defenses. F.3d 1162, 1204 (10th Cir. 2006).
See, e.g., United States v. Apperson, 441
In assessing their entitlement to defenses, all United States v. Butler, 485 F.3d
evidence is to be viewed in the defendants favor. 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] reasonably anticipated a direct causal relationship between [his] conduct and the harm to be averted; 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 each parcel, and that leases are not issued until protests are resolved, 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. See 30 U.S.C.A. 226(b)(1)(A); Hatch, BLM, Stop
Dithering Over Oil and Gas Leases: Why the Leases Must Be Issued in Sixty Days,
43
Document: 01018748052
Page: 53
31 UTELR 461 (2011); accord Impact Energy Resources v. Salazar, 2010 WL 3489544. Moreover, according to Judge Bensons decision in Impact Energy
Resources v. Salazar, 2010 WL 3489544, in the actions leading up to the December sale, the BLM agreed to delay issuance of the leases only thirty days after the sale. Id. at *2. See also DA 275. Thus, at the time of the auction it appeared that had
DeChristopher not interceded, the parcels should have issued thirty days after the December 19, 2008 auction, prior to the January 20, 2009 inauguration of President Obama and entry of the new administration (DA 210-213). The greater evils DeChristopher was seeking to combat were the governments violation of its own laws prior to and during the auction, and the consequential exacerbation of global warming, or climate change, and destruction of irreplaceable natural and cultural resources very real, cognizable and ongoing harms (DA 45-282, 285-356). While the protests, lawsuits, new administration and other corrective
agents were effective in ameliorating the harms flowing from the auction after the fact, at the time DeChristopher acted, there was no such certain solution. When DeChristopher acted, he was in the midst of the very real evil of government law-breaking in holding the illegal auction. The extent of the government corruption that compelled DeChristopher to act is exemplified by a New York Times article published shortly before the December 19th auction, on November 7, 2008. It detailed the BLMs violation of protocol in setting up the auction of many parcels that
44
Document: 01018748052
Page: 54
were previously off limits, and the profound adverse consequences of the likely irreversible leases (DA 210-212). The corruption preceding and ongoing at the
auction is demonstrated in the report of Congressman Raul Grijalva documenting the BLMs avoiding NEPA (the National Environmental Protection Act), expediting oil and gas permits too fast for government archeologists and biologists to properly oversee and perform field inspections, permitting oil company-paid volunteers to process drilling permits, and harming the environment (DA 65-90). The Grijalva report was published October 22, 2008, less than two months before the auction (DA 66). Another example of the corruption publicized prior to the auction was the
documented scandal involving the Mineral Management Service employees who were trading drugs, sex and gifts for favors to oil and gas industry representatives, and costing the taxpayers billions of dollars with unethical performance in failing to properly collect royalties from oil and gas companies (e.g. DA 312, http://www.nytimes.com/2008/09/11/washington/11royalty.html?pagewanted=all, published on September 11, 2008). DeChristophers completely non-violent action was a lesser evil than the then-ongoing government law-breaking and the consequential contribution to climate change and other harms he reasonably anticipated. In finding DeChristophers proof inadequate as to the existence of a greater evil, the court also ruled that it would be improper for the court to pass upon the legality
45
Document: 01018748052
Page: 55
of government conduct or to usurp the policy-making role of Congress and the executive branch (DA 19, document 31, page 7). was legally incorrect. The courts ruling in this respect
DeChristophers defense did not require the court to pass
judgment on the legality of the governments conduct or to second guess the policies made by Congress or the executive branch. Rather, DeChristopher was trying to
exercise his constitutional and statutory rights to have a jury determine his fate in a full and fair criminal trial, by considering whether his effort to stop the BLM from violating the laws and harming the planet were justified. Accordingly, the court was
merely to decide whether one reasonable juror could have found by a preponderance of the evidence that at the time that DeChristopher acted, his completely non-violent conduct during the auction was a lesser evil than the auction itself or the apparent consequences of the auction. See Apperson and Turner, supra.
2. DECHRISTOPHER ACTED TO PREVENT IMMINENT HARMS. The word imminent is frequently used to describe an event that is proximate in time, or about to happen immediately. See, e.g., Burlington Northern and Santa
Fe Ry. Co. v. Grant, 505 F.3d 1013, 1020 (10th Cir. 2007) (citing, inter alia, Meghrig v. KFC Western, Inc., 516 U.S. 479, 485 (1996).22 DeChristophers actions responded to
22
Burlington and Meghrig are both cases decided in the context of

46
Document: 01018748052
Page: 56
an immediate harm, and succeeded in thwarting the immediate harm the Bush Administrations rush to push the lease sales through in this specific auction, contrary to the governing law, before the Obama administration and the newly elected Congress took over. However, the word imminent more accurately describes the
nature of a threat (genuine, as opposed to hypothetical), rather than the temporal proximity of the threat, and hence also describes a present threat of a harm, which may come to fruition in the future. Burlington at 1020-21, citing Meghrig, 516 U.S. at 485. To meet the latter definition of imminence, it suffices to show one point in a chain of events that may cause the harm. See id. DeChristopher wished to show the jurors that he acted to stop the immediate environmental, historical, archeological and other harms the Bush Administration was causing by breaking regulations and laws and rushing the leases through in the illegal auction in an effort to get the land in the hands of the oil and gas companies before the new administration and Congress took control (DA 206). The government corruption involved in the auction and the environmental havoc caused by climate change or global warming were both occurring at the time of the auction and posed immediate threats to the integrity of our government and catastrophic threats to our future that are fairly characterized as imminent (e.g. DA 279). See, e.g., Connecticut
environmental law, and interpret a hazardous waste statute that does not define imminence.
47
Document: 01018748052
Page: 57
v. American Elec. Power Co. Inc., 582 F.3d 309, 339-344 (2d Cir. 2009) (reversing lower courts dismissal of nuisance suits brought by several states, cities, and land trusts against six major fossil-fuel burning power plants to enjoin their contribution to global warming; find that global warming or climate change is sufficiently imminent (certain to occur in the future) to satisfy Article III standing requirements23), overruled on other grounds, American Elec. Power Co. Inc., v. Connecticut, 131 S.Ct. 2527 (2011) (equally divided Court affirmed standing analysis, held that Clean Air Act displaced federal common law, remanded for inquiry into state law claims). The trial court found that no harm was imminent, because the leases were all under protest, and thus unlikely to issue immediately, and thus, the consequences were not immediately dangerous or certain to occur (DA 19-20, document 31, page 7-8). This ruling constituted an abuse of discretion. While the courts decision asserted that there were at least 1,600 protests filed prior to the auction, at least one for each parcel, and that leases are not issued until protests are resolved, 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.
23
See 30 U.S.C.A. 226(b)(1)(A) and Hatch note, supra.
It is elementary that a federal courts subject matter jurisdiction over a case is contingent on the plaintiffs standing to bring the suit. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006). The plaintiff bears the burden of proving standing. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The elements of standing are 1) the violation of a concrete, particularized, actual and imminent legal interest, 2) causation of the injury by the claimed violation, and 3) likelihood that the relief sought will redress the injury. See, e.g., id.
48
Document: 01018748052
Page: 58
According to Judge Bensons decision in Impact Energy Resources v. Salazar, 2010 WL 3489544, as to the December 19 auction, the BLM agreed to delay issuance of the leases only thirty days after the sale. Id. at *2. This thirty day period would have
run before President Obama was inaugurated on January 20, 2009 and the new administration came into power. Particularly when the evidence is viewed in the light most favorable to DeChristopher, at least one reasonable juror could have found that the existence of the protests did not nullify that threats posed by the BLMs law-breaking and the exacerbation of climate change and other harms posed thereby.
3.
THERE WAS SUFFICIENT CAUSAL NEXUS BETWEEN THE HARMS TO BE AVERTED AND DECHRISTOPHERS CONDUCT.
The element of causation is essential to the rationale of the necessity defense, which protects the defendants beneficial breaking of the law, provided that it was committed to avert a greater harm to society. Conversely, if there was no hope that the individuals act of law-breaking would actually serve the higher good, there was no benefit or necessity for breaking the law. E.g., United States v. Schoon, 971 F.2d 193, 197 (9th Cir. 1991). The court found a lack of causal relationship between DeChristophers actions and the harm to be averted, because he won only 14 of the 100 plus parcels sold, and
49
Document: 01018748052
Page: 59
could not reasonably have expected that his minimal actions would stop the evils at issue (DA 20, Document 31 at 8). This ruling did not account for the evidence that
DeChristophers bids totaled 1.8 million dollars, roughly 24% of the entire amount bid at the auction, and that it was only Agent Loves taking DeChristopher out of the auction that stopped him from bidding on more parcels. The ruling overlooked the
fact that it was indeed DeChristophers actions that caused the BLM officials to halt the illegal auction, one of the primary evils DeChristopher sought to defeat (DA 565, 593-94, 608, 624, 629, 650, 655, 677, 742-43). Nor does it account for the fact that
DeChristophers goal, in which he succeeded, was to stop the auction and the wrongful issuance of the leases only long enough for the new administration came into office to reconsider the auction (DA 809). Had he been allowed to do so, DeChristopher would have attested to his reasonable belief that he anticipated his actions would thwart the governments unlawful auction, and also avert its consequential exacerbation of global warming, and its destruction of irreplaceable natural and cultural resources. Expert witnesses could have detailed this element of the defense, by explaining how the government was violating the law (the primary immediate harm DeChristopher anticipated to thwart with his conduct). These witnesses could have explained how the Governments malfeasance threatened to harm the earth and ecosystem by exacerbating climate change, and threatened to destroy irreplaceable environmental and cultural resources
50
Document: 01018748052
Page: 60
(the more life threatening and quality of life threatening harm DeChristopher anticipated to thwart by his conduct). Finally, these witnesses could have explained how DeChristophers actions were reasonably anticipated to avert the harms. DA 281. With this evidence, DeChristopher could have established the requisite causation element to the satisfaction of one reasonable juror reasonable anticipation of aversion of the harms through his conduct. See, e.g., Connecticut v. American Elec. Power Co. Inc., 582 F.3d 309, 345-49 (reversing lower courts dismissal of nuisance suits brought by several states, cities, and land trusts against six major fossil-fuel burning power plants to enjoin their contribution to global warming; in addressing causation and redressability elements of Article III standing, the court recognized that causation was sufficient if the defendants contributed to global warming, regardless of other contributing factors, and that the courts are properly viewed as able to redress the harm, if the result of the suit would be to provide some measure of relief), overruled on other grounds, American Elec. Power Co. Inc., v. Connecticut, 131 S.Ct. 2527 (2011). This case does not involve mere indirect civil disobedience, wherein someone breaks a law to protest a different government law or policy. In this case, there is a clear nexus between DeChristophers actions and the harms he was averting. He See
thwarted the auction in order to stop then-ongoing government corruption and to

51
Document: 01018748052
Page: 61
protect the Utah and world communities and ecosystems.
There was a direct causal
connection between his actions and aversion of the greater evils.24
4.
DECHRISTOPHER HAD NO LEGAL ALTERNATIVES.
The final element DeChristopher had prove to the satisfaction of at least one reasonable juror in order to present the necessity defense was that the harms he sought to avert could not have been similarly prevented by other legal options. See, e.g., United States v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985). The court found that DeChristopher could not present a necessity defense because he had legal alternatives filing protests, participating in the demonstration, and participating with the groups that filed the federal lawsuit. The court rejected the argument that such alternatives would have been ineffective, as DeChristopher was in
Compare United States v. Schoon, 971 F.2d 193, at 195 and 198 (9th Cir. 1991) (defendant protested U.S. policy in El Salvador by splashing IRS offices with fake blood and refused to disperse upon the command of a federal officer; court found no possibility that this indirect civil disobedience would stop the killings in El Salvador); United States v. Maxwell, 254 F.3d 21, 28 (1st Cir. 2001) (defendant, who trespassed on military base with the intent to disrupt naval exercises there, showed no reasonable anticipation that this conduct would cause Trident missiles to leave an area where he had no proof they had been in three years); United States v. Montgomery, 772 F.2d 733, 376 (11th Cir. 1986) (trespassers splashing blood around a weapons plant did not show a reasonable anticipation that their conduct would cause nuclear disarmament); United States v. Dorrell, 758 F.2d 427, 433 (9th Cir. 1985) (defendants illegal entry into government property and spray painting property not reasonably anticipated to stop MX missile program, nuclear war or world starvation).
24
52
Document: 01018748052
Page: 62
the midst of the auction and government lawbreaking.
The court ruled that
DeChristophers failure to choose and impatience with more time-consuming or less visible alternatives did not suffice, and that DeChristophers subjective beliefs were not determinative (DA 20-21, Document 31 at 8-9 and n.1). Given the opportunity, at least one reasonable juror would have found that DeChristopher was immediately stopping the Government malfeasance that preceded and was operant in the auction, something that no other legal remedy could achieve. Had the jurors learned the extent of the government corruption leading up to the auction see New York Times articles and the Grijalva report, supra, and had they understood the illegalities preceding and involved in and threatened by the auction, at least one of the jurors would have recognized that DeChristopher was compelled to do the only thing he thought would have a reasonable hope of succeeding. As the
Secretary of the Interior Ken Salazar acknowledged after the fact, the prior Bush administration engaged in a headlong rush to leasing and took shortcuts which violated the environmental laws (DA 206), in the very auction DeChristopher was witnessing. Unlike the jurors, DeChristopher understood the illegality of the auction
that was going forward when he acted, and the consequences it threatened. DeChristopher was not acting out of impatience, as the trial court ruled. himself on the line because he had no other choice. He put
In the face of the Bush
Administrations then-apparently successful rush to push the leases through the

53
Document: 01018748052
Page: 63
auction and into the hands of the gas and oil companies through unlawful means, DeChristopher reasonably could not assume that it would have made a difference for him to go march in the demonstration or to join in a lawsuit or file a protest, as none of these remedies had succeeded in stopping the governments law-breaking in holding the illegal auction at the time that DeChristopher acted. When the proffered
evidence is properly viewed in DeChristophers favor, at least one reasonable juror would have found that the governmental misconduct preceding and during the auction created a real emergency, which could not have been similarly averted by any lawful option. DeChristophers choice to act as he did satisfies the fourth element of the choice of evils defense. Thus, the trial court violated DeChristophers constitutional rights to defend against the criminal charges in forbidding the necessity or choice of evils defense. The government cannot prove this error harmless beyond a reasonable doubt, and even if it were a mere evidentiary error, there is a reasonable likelihood of a different result. III. THE COURT AND PROSECUTION VIOLATED DECHRISTOPHERS FIRST, FIFTH AND FOURTEENTH AMENDMENT RIGHTS BY PROSECUTING AND IMPRISONING HIM FOR WHAT HE SAID.
. STANDARDS OF REVIEW The Court reviews the denial of discovery for a claim of selective prosecution
54
Document: 01018748052
Page: 64
de novo.
See, e.g., United States v. James, 257 F.3d 1173, 1178 (10th Cir. 2001). United States v. Alcaraz-Arellano,
Factual findings are reviewed for clear error. 441 F.3d 1252 (10th Cir. 2006).
Criminal defendants are entitled to pursue and have the jury adequately instructed by the court on their defenses, provided that the evidence, when viewed through the eyes of one reasonable juror, support their defenses. See, e.g., Crane v.
Kentucky, 476 U.S. 683, 690 (1985); Rock v. Arkansas, 483 U.S. 44 (1987); United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir. 2006). In assessing their United
entitlement to defenses, all evidence is to be viewed in the defendants favor. States v. Butler, 485 F.3d 569, 571-72 (10th Cir. 2007).
This Court will review and correct plain, substantial and egregious legal errors that occur in sentencing. Cir. 2003). United States v. Heredia-Cruz, 328 F.3d 1283, 1288 (10th
DISCUSSION The First Amendment to the United States Constitution protects the individuals right to communicate ones beliefs, protest against government wrongs, and advocate proposals for change. See, e.g., Columbia Broadcasting Systems Inc. v. Advocacy of
Democratic National Committee, 412 U.S. 94, 155-56 (1973).
law-breaking and violence is constitutionally protected speech unless the speech is

55
Document: 01018748052
Page: 65
both designed and likely to produce or incite imminent lawless or violent action. Brandenburg v. Hayes, 395 U.S. 444, 447-48 (1969). The Equal Protection Clause of the Fourteenth Amendment and the Equal Protection component of the Due Process Clause of the Fifth Amendment to the Federal Constitution forbid prosecutions that are motivated by impermissible or arbitrary factors such as the exercise of constitutional rights. See, e.g., Wayte v. United States, 470 U.S. 598, 608 (1985), Oyler v. Boles, 368 U.S. 448, 456 (1962). Prosecutors are not allowed to prosecute in an effort to inhibit peoples exercise of their constitutional rights to free speech. See Wayte; United States v. Amon, 669
F.2d 1351, 1362 (10th Cir. 1981); United States v. Dukehart, 687 F.2d 1301, 1303 (10th Cir. 1982). If a defendant can show that the governments choice to prosecute him was discriminatory in intent and effect, dismissal for violation of Equal Protection of the law is in order. Wayte v. United States, 470 U.S. at 608-09. To show discriminatory intent, the defendant must show that the decision to prosecute was made with the intent to impose adverse effects on an identifiable group. Id. When a classification is overtly discriminatory, there is no requirement to show discriminatory intent. Id. at 608 n.10. The exercise of free speech is an unjustifiable categorization for criminal E.g., Dukehart.
prosecution.
To show discriminatory effect, a defendant must show by reference to

56
Document: 01018748052
Page: 66
individuals or statistics that he was treated differently from similarly situated people without legitimate cause. See Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006). People are considered similarly situated if there are no legitimate factors upon which a prosecutor might rely in distinguishing between them for purposes of prosecution. See United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005). In order to obtain discovery from the Government in support of a selective prosecution claim, a defendant must make a credible showing of different treatment of similarly situated persons. United States v. Armstrong, 517 U.S. 456, 470 (1996), or a credible showing of both discriminatory purpose and effect, Deberry, 430 F.3d at 1300. Prior to trial, DeChristopher submitted a table of other people who had failed to honor their oil and gas lease bids but never been prosecuted (DA 283-84). He
argued that this constituted credible proof that similarly situated people were not being prosecuted for conduct similar to DeChristophers, and asked the court to issue an order requiring the Government to produce all evidence concerning any policies of any kind regarding prosecution of such offenses, and any communications of any kind to, from or within the Department of Justice, Bureau of Land Management, the Department of the Interior, and related agencies regarding the prosecution of DeChristopher (document 34). He contended that he had been singled out for prosecution because of statements he made after the alleged offenses (DA 469).
57
Document: 01018748052
Page: 67
The trial court denied DeChristophers motion, and in so doing, expressed the apparent belief that DeChristophers exercise of free speech was a legitimate basis for his prosecution. In the oral ruling, the court indicated in relevant part: We know that Mr. DeChristopher publicized and has stated publicly his intent to sabotage the lease auction, which we have no information similar to Mr. McCamble [another bidder who did not pay]. (DA 471). The court told the prosecutor that it assumed he would not have felt the same way had DeChristopher not admitted that he falsely did it, and the prosecutor affirmed the courts assumption (DA 476). stated: There has been no credible showing that for any bidder the sufficiency of the evidence linking the bidder to the offense, the nature of the offense, or the bidders public declaration of his/her actions was essentially the same as in DeChristophers case. (Emphasis added) (DA 24). The prosecution did not correct the Courts assertion The courts written ruling similarly
that DeChristophers case was selected for prosecution on the basis of his public declarations, effectively agreeing with the court, see, e.g., Dukehart, 687 F.2d at 1304 (rejecting claim of selective prosecution in part because the defense attorneys did not contradict the prosecutors factual assertions undermining the claim). Wayte, Amon and Dukehart, supra. The court also compared the number of parcels and acres and the amount of money involved in the various bidders cases, and found that DeChristophers actions
58
But see, e.g.,
Document: 01018748052
Page: 68
were unprecedented in magnitude, and thus prosecutorially distinguishable from the other bidders (DA 24). This ruling failed to account for the facts that DeChristopher never intended to or attempted to take possession of the leases, did attempt to pay for them, and never took possession of the leases, facts that significantly negate the purported magnitude of his alleged offenses.25 Without elaborating on its conclusion, the court held that DeChristopher had failed to prove discriminatory intent (DA 25), apparently failing to recognize that discriminatory intent need not be further proved in cases wherein the prosecutorial categorization rests on the exercise of free speech, see, e.g., Dukehart, supra. During the trial, the court repeatedly excluded evidence of disparate treatment of people and companies who failed to honor their bids in oil and gas lease auctions (DA 748-49, 765-66, 848-49).26 The court ruled that such evidence would be too As detailed above,
lacking in probative value to be helpful to the jury (DA 443-444).
the court excluded all evidence regarding the BLM employees misconduct in violating the laws governing the December 19th auction, perhaps the most direct evidence of
The court tacitly recognized this in the sentencing hearing when the court indicated it could not determine restitution, as DeChristopher would not actually obtain a lease and was not fairly held responsible for the financial fallout from the auction, given that many of the leases were withdrawn by Secretary Salazar (DA 938-39, 966).
25
The non-payment of bids was routine enough that BLM employees coined the phrase bid walkers to refer to non-paying bidders.
26
59
Document: 01018748052
Page: 69
discriminatory effect in the selective prosecution of DeChristopher. The court also rejected DeChristophers proposed instruction on selective prosecution (DA 396-97). These rulings failed to account for DeChristophers rights to present his defenses. See Point II, supra. Had the jurors been aware of the BLMs history of
non-prosecution of bid walkers, and the history of illegalities in the later-nullified December 19th auction, the jury would have been in a position to accurately and fairly assess the motivations behind and merits of DeChristophers prosecution. See Duncan, supra, recognizing the jury function of checking government powers and prosecutorial abuses). In sentencing DeChristopher, the court stated with complete candor that from everything the court knew about the prosecution of DeChristopher, he may very well not have been prosecuted had he not made the choice after he broke the law to step to any bank of microphones that he could find to give a speech similar to the speech he gave at sentencing (DA 962-63).27 Thus, the Court again demonstrated its
belief that the exercise of free speech is a permissible basis for prosecutorial selection. In his sentencing comments, DeChristopher expressed why his actions were morally imperative and compelled by government and corporate corruption and resultant harms. He discussed his experiences in the auction and prosecution, and his life experiences with energy industry and government corruption and the harms the corruption causes to people and the environment. He discussed the historical legal role of the jury, the value and history of civil disobedience in the face of governmental and corporate law-breaking and attendant dangers and harms to our environment and future survival. He vowed to continue the fight as long as the government failed to comply with the laws designed to protect a just and livable future. See DA 912-934.
27
60
Document: 01018748052
Page: 70
And once again, the prosecution did not object, argue with, or correct the assertion of the trial court to the effect that DeChristopher had been prosecuted because of his exercise of his rights to free speech. Thus, the prosecution tacitly agreed with the
courts belief that DeChristopher was prosecuted for his exercise of his First Amendment rights, see e.g., Dukehart, 687 F.2d at 1304 (rejecting claim of selective prosecution in part because the defense attorneys did not contradict the prosecutors factual assertions undermining the claim). supra. The Governments sentencing memorandum sought a term of imprisonment, largely because of what DeChristopher advocated after the alleged offenses, particularly his promotion of the value of civil disobedience (document 72 at 3-7). At sentencing, DeChristopher observed that the Government was seeking his punishment as a result of his public political speeches. He expressed his view that But see, e.g., Wayte, Amon and Dukehart,
the case was about the right of citizens to challenge their government, and asked the court to join him in standing up for the right and responsibility of citizens to challenge their government and to join him in valuing nonviolent civil disobedience (e.g. DA 920-24, 933-34). However, the court decided that as a result of his post-offense statements, DeChristopher would be imprisoned. The court ruled: If this hadnt been a continuing trail of statements by Mr. DeChristopher about his advocacy, as he calls it civil disobedience, and that he will continue to
61
Document: 01018748052
Page: 71
fight, and I am prepared to go to prison, then others are going to have to be prepared to go with me, that causes me to feel under the sentencing laws before me that a term of imprisonment is required. (DA 964). Just as prosecutors are not to prosecute people on the basis of their constitutionally protected speech, in imposing sentences in criminal cases, our courts may not punish the exercise of First Amendment rights. See, e.g., United States v.
Bangert, 645 F.2d 1297, 1308 (8th Cir. 1981) (Consideration of political beliefs, as distinguished from criminal activity, would clearly be impermissible in determining defendants' sentences, because it would impair the rights of the defendants under the First Amendment, protecting public expression of their political beliefs[.]); United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986)( We agree with the courts that have considered the issue that the imposition of a sentence on the basis of a defendant's beliefs would violate the first amendment's guarantees.). As the Supreme Court stated in Bordenkircher v. Hayes, 434 U.S. 347, 363 (1978), [t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. Accordingly, a court may not punish an individual by imposing a heavier sentence for the exercise of [F]irst [A]mendment rights. United States v. Lemon, 723 F.2d 922, 937 (D.C. Cir. 1983) (citations omitted). Because DeChristopher was selected for prosecution and sentenced to prison as a result of his exercise of his constitutional rights, this Court should reverse his convictions, vacate his sentence, and remand for dismissal of his case.
62
Document: 01018748052
Page: 72
IV. THE COURT SHOULD REACH THE MERITS OF ALL ISSUES RAISED. All errors discussed herein would merit relief on appeal under the plain error doctrine regardless of whether counsel for DeChristopher brought the issues to the trial courts attention during the proceedings. The plain error doctrine recognizes this Courts discretion to address the merits of issues that were not raised at all in the court below, provided that four criteria are met: (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. United States v. Marcus, 130 S.Ct. 2159, 2164 (2010), 176 L.Ed. 2d 1012, 78 U.S.L.W. 4453 (citations omitted). The legal insufficiency of the evidence, erroneous elements instructions, denial of DeChristophers right to defend against the criminal charges and confront the Governments witnesses, and prosecution and imprisonment of DeChristopher on the basis of his exercise of his First Amendment rights are all obvious errors, which are not reasonably subject to dispute. Each of the errors is independently outcome The Court should
determinative and subverted DeChristophers substantial rights.
reach the merits of all issues raised, correct the plain errors that occurred, and restore the public reputation, fairness and integrity of the judicial proceedings in
63
Document: 01018748052
Page: 73
DeChristophers case. CONCLUSION The Court should reverse DeChristophers convictions and remand the case to the trial court to vacate his sentence and dismiss the charges. ORAL ARGUMENT STATEMENT Oral argument is requested because this case involves constitutional issues of great public importance. Counsel request the opportunity to appear and answer any questions the Court may have. Respectfully submitted this 18th day of November, 2011. _/s/ Elizabeth Hunt_____________________ RONALD J. YENGICH ELIZABETH HUNT PATRICK A. SHEA COUNSEL FOR TIM DECHRISTOPHER
64
Document: 01018748052
Page: 74
CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,977 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). In so certifying, I am relying on the
word count function of the Word wordprocessing system, version 14.1.3 for Mac. Respectfully submitted this 18th day of November, 2011. _/s/ Elizabeth Hunt_____________________ ELIZABETH HUNT COUNSEL FOR TIM DECHRISTOPHER
CERTIFICATE OF ELECTRONIC SERVICE I hereby certify that this was served electronically on counsel for the United States, Assistant United States Attorney Dave Backman, on November 18, 2011.
/s/ Elizabeth Hunt
65

Tim DeChristopher Appeal

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tim DeChristopher Appeal

Uploaded by

Copyright:

Available Formats

Appellate Case: 11-4151

Date Filed: 11/18/2011

Case No. 11-4151 IN THE TENTH CIRCUIT COURT OF APPEALS

UNITED STATES OF AMERICA, Appellee/Plaintiff, v. TIM DECHRISTOPHER, Appellant/Defendant.

Appellate Case: 11-4151

Date Filed: 11/18/2011

TABLE OF CONTENTS JURISDICTIONAL STATEMENT ...1 ...1

ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE ...2

STATEMENT OF RELEVANT FACTS SUMMARY OF ARGUMENTS. . . 13 ARGUMENTS . . .15

I. THE EVIDENCE WAS LEGALLY INSUFFICIENT. . . STANDARD OF REVIEW DISCUSSION A. B. C. D. . . . 16 . . . 15

THE CONSTRUCTIVE AMENDMENT OF THE INDICTMENT INDEPENDENTLY REQUIRES REVERSAL OF COUNT 2. . . 28

Appellate Case: 11-4151

Date Filed: 11/18/2011

STANDARDS OF REVIEW . . .55 DISCUSSION . . .56

ORAL ARGUMENT STATEMENT

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

appeal from his criminal convictions.

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

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

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

Appellate Case: 11-4151

Date Filed: 11/18/2011

before he chose to re-enter the bidding (DA 562).

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

The 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.

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

Appellate Case: 11-4151

Date Filed: 11/18/2011

lease (DA 406).

Thus, in completing and signing the form, DeChristopher did not