United States v. DeChristopher

• Decision Date: 14 September 2012
• Docket Number: No. 11–4151.,11–4151.
• Citation: 695 F.3d 1082
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tim DeCHRISTOPHER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

695 F.3d 1082

UNITED STATES of America, Plaintiff–Appellee,

v.Tim DeCHRISTOPHER, Defendant–Appellant.

No. 11–4151.

United States Court of Appeals,Tenth Circuit.

Sept. 14, 2012.

Ronald James Yengich, Yengich, Rich & Xaiz, (Elizabeth Hunt, Elizabeth Hunt LLC, and Patrick A. Shea, Patrick A. Shea P.C., with him on the brief), Salt Lake City, UT, for Defendant–Appellant.

Dave Backman, Assistant United States Attorney (David B. Barlow, United States Attorney, with him on the brief), Salt Lake City, UT, for Plaintiff–Appellee.

Before BRISCOE, Chief Circuit Judge, BALDOCK, and HOLMES, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Tim DeChristopher entered a Bureau of Land Management (BLM) oil and gas lease auction in Salt Lake City, Utah, by representing he was a bidder. His purpose was to disrupt the auction and call attention to the potential environmental harms of drilling on the leases. He proceeded to drive up the auction prices and ultimately won almost $1.8 million in bids, for which he was unable to pay. A jury convicted Defendant of interfering with the provisions of Chapter 3A of the Federal Onshore Oil and Gas Leasing Reform Act, in violation of 30 U.S.C. § 195(a)(1), and making a false statement or representation in violation of 18 U.S.C. § 1001.¹ He now appeals, raising eight separate issues related to his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

Federal law requires BLM offices in each state with eligible lands to auction off oil and gas leases on a quarterly basis. 30 U.S.C. § 226(b)(1)(A). At these auctions, the minimum bid is two dollars per acre, 43 C.F.R. § 3120.1–2(c), but the amount of the winning bid can vary significantly. In addition to the final auction price, successful bidders must pay an annual rental of $1.50 per acre per year for the first five years of the lease ($2 per acre per year thereafter) and pay a royalty of 12.5 percent on the oil or gas produced from the lease. 30 U.S.C. § 226(b)(2)(A)(i), (d).

In December 2008, the BLM office in Salt Lake City, Utah, held an auction for leases on 131 parcels of BLM-managed land located in Utah. The decision to allow drilling on these parcels sparked significant controversy, and by the date of the auction individuals had filed administrative challenges to all 131 parcels. Additionally, two days before the auction, environmental groups filed suit in federal court seeking a temporary restraining order to prevent leases from issuing on seventy-seven of the parcels. See S. Utah Wilderness Alliance v. Allred, 2009 WL 765882 (D.D.C. January 17, 2009) (unpublished). Despite these challenges, the auction went forward as planned. On the day of the auction, demonstrators gathered outside the BLM office in protest.

Defendant, a student at the University of Utah, arrived at the BLM office intending to participate in the protest. He walked from one end of the protest to the other, and then entered the BLM office. He soon decided protesting would not have much of an impact and wanted to “take stronger action to really waive [sic] that red flag and see what was going on in there.” Appellant's App., vol. II at 802. Defendant therefore entered the building, where a BLM employee asked him if he was a bidder, observer, or member of the media. Defendant said he was a bidder. The employee told Defendant to complete and sign a bidder registration form. Defendant did so, sitting at the registration table for approximately two or three minutes. By signing the form, Defendant “certif [ied] that any bid submitted by the undersigned ... is a good faith intention ... to acquire an oil and gas lease on the offered lands.” Id. at 406. The form also notified him, “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 [sic] jurisdiction.” Id. The BLM employee then gave Defendant a bidder paddle, and Defendant proceeded to the auction room.

About twenty minutes into the auction, Defendant began bidding on parcels. After driving up prices on more than ten parcels without winning any bids, Defendant finally won an auction for approximately $500. Later he won another auction for approximately $25,000. After winning this bid, Defendant consistently bid until he won each of the next twelve auctions. BLM officials suspended the auction because of Defendant's actions, which had caused some legitimate bidders to leave the auction. Defendant's winning bids on the fourteen parcels of land totaled $1,797,852.25, and BLM policy required him to tender a down payment of $81,238 by 4:30 p.m. on the day of the auction. Defendant told a BLM special agent that he was unable to pay that amount. Defendant contacted a fundraiser later that day in an to attempt to raise the money, but he never completed the payment.²

Based on this conduct, a grand jury issued a two-count indictment against Defendant. Count 1 charged him with organizing or participating in a scheme, arrangement, plan, or agreement to circumvent or defeat the provisions of the Federal Onshore Oil and Gas Leasing Reform Act in violation of 30 U.S.C. § 195(a)(1). Count 2 charged him with making a false statement in violation of 18 U.S.C. § 1001. Prior to trial, the Government moved in limine to prevent Defendant from presenting a necessity defense. Defendant responded by filing a written proffer of the evidence he would introduce in support of a necessity defense. Defendant attached voluminous documentation of the BLM's purported violations of various environmental laws and regulations as well as evidence about environmental issues such as global warming. The district court granted the motion in limine, concluding “the evidence is insufficient as a matter of law to support the necessity defense.” United States v. DeChristopher, 2009 WL 3837208 at *5 (D.Utah, Nov. 16, 2009) (unpublished). Defendant then filed a motion for discovery regarding selective prosecution, arguing the Government treated him differently than other persons who failed to pay for their oil and gas leases. Defendant attached tables showing other successful bidders who did not pay for the leases they won. The district court denied this motion, concluding Defendant had produced no evidence of discriminatory effect. The court found no evidence showing the other persons committed similar offenses. The court also noted that Defendant won significantly more parcels and acres than the other listed bidders. The court did not reach whether Defendant had produced adequate evidence of discriminatory intent.

At trial, the Government presented the following evidence. First, the BLM employee who tended the auction registration table testified as follows: “He came in. He came up to the table. I said are you a bidder, an observer or a member of the media? He told me he was a bidder.” Appellant's App., vol. II at 499. She also testified to watching Defendant read and fill out the bidder registration form. Second, the BLM employee who conducted the auction testified as to the manner in which the auction was conducted. Third, a BLM law enforcement ranger testified that his suspicions were aroused when he saw Defendant enter the auction because Defendant's age and clothing did not fit the description of most bidders. The ranger called BLM Special Agent Dan Love's attention to Defendant as someone to be watched.

Fourth, Special Agent Love testified regarding his observations of and interactions with Defendant on the day of the auction. Agent Love testified that once in the auction room, Defendant “did not seem overly concerned as to what was taking place at the auction” and “increasingly was looking ... to the perimeter of the room, to the back of the room.” Appellant's App., vol. II at 552. At that point, Agent Love grew concerned that Defendant might cause a disturbance, so he requested additional uniformed officers to enter the room. Sometime after the uniformed officers entered the room, Agent Love observed Defendant begin bidding. He testified that Defendant would only start bidding on a parcel once he saw bidders start dropping out, would bid up the price with the last remaining bidder, and would then drop out when the other bidder hesitated.

Agent Love testified that he made contact with Defendant during a recess in the auction, once Defendant had won fourteen bids. Agent Love verified that Defendant was the person listed on his bidder registration form and asked if Defendant could pay for the leases. Defendant then “wanted to know how much trouble he was in” and said he was “prepared to deal with the consequences.” Id. at 572. Defendant said he was not able to pay the amount he bid on the leases. Defendant told Agent Love that he had “posed” as a bidder because he believed it was the only way into the sale. He said “his initial plan was to create a disruption or a disturbance,” but that upon seeing additional law enforcement in the room, “he realized that making a disruption or speech would not have the kind of impact that he was looking for.” Id. at 578. Defendant also said he made the decision to bid fraudulently on the parcels once he was in the auction. He told Agent Love that after he won the second bid, he realized he had no way to pay for the leases, so he decided to “make a stand” and keep bidding. Id. at 577.

Fifth, another BLM employee who assisted with the auction testified that the other bidders were very upset by Defendant's actions. She also testified that the BLM did not immediately restart the auction after Defendant left the room because “some bidders may have already left the sale and the confidentiality is gone,” which hurt the competitiveness of the auction. Appellant's App., vol. II at 623–24.

Finally, the Government called Kent Hoffman, the BLM's Utah deputy state director for lands and minerals, who testified regarding the work involved in preparing for...